The opinion
--\
Honorable Perry L. Jones Opinion No. O-6847
County Attorney
Travis County Re: Constitutionality of
Austin, Texas Public Accounting Act of
1945 (Senate Bill No. 176,
Acts 49th Legislature 1945,
Dear Sir: Chapter 315, page 51'f'j.
In your letter of September 24, 1945, you have
requested an opinion from this office relative to the above
subject. Submitted therewith,was a brief by Mr. ,James P.
Hart of the firm of Hart and Brown of Austin, Texas, in.
which the constitutionality of the above-olted Act is at-
tacked on several grounds. The pertinent paragraphs of
your letter (which are conveniently numbered) are quoted:
"1 . Is the Act unconstitutional because the
title of the Act is in violation of the provisions
of Article III, Sections 35 and 36, of the
State Constitution? In connection with the foregoing
question, I respectfully direct your attention
to the following considerations.
"(a) The first clause of the title states
that it is an Act to amend Chapter 122, Acts
of 1915, 34th Legislature, known as Article 31 to
41, inclusive, Revised Civil Statutes of
Texas, 'whereas, the second clause of the title
states that it is an Act repealing said Chapter
122, Acts of the 34th Legislature. Are these
two statements in the title inconsistent and
contradictory to the extent that the title does
not express the subject of the Act, as is re-
quired by Article III, Section 35, of the Consti-
tution?
"(b) The title of the Act makes no refer-
ence to the fact that certain sections of the Act
create and define new criminal offenses; there
is merely a statement that the Act provides 'for
penalties for violating the provisions of said
Act.' Sections 8, 16, 18, and 20 contain certain
prohibitions and Section 24 provides that 'any
person who shall hold himself out to the public
as a public accountant or shall engage in the
. -
Honorable Perry 1,. Jones, page 2 (O-6847)
practice of public accountancy as same
is defined in Section 2 of this Act, without having
obtained a certificate or permit, or any person
who shall violate any of the provisions of this
Act, shall be deemed gui.lty of a mi.sdemeanor and
upon convi.cti.onthereof :~ha!.
L 'be puni.s.hcdby a
fine not to exceed Five Hundred ($500.00) Dollars,
or by imprisonment in .jai.lfor not more than six
(\T)months, or by both such fine and imprisonment.'
Does the failure of the title to state that
crimi~nal offenses are created and defined
by the Act, as well as that a penalty is fixed
for 'violating the provisions of said Act',
invalidate the penal provisions of the Act?
"(c) There is no reference in the title to
the fact that Section 26 of the Act repeals Ar-
ticles 1132 and 1133 of the Penal Code, unless
it can be said that these articles of the Penal
Code are included in the statement in the title
that the Act repeals 'said Chapter 122, Acts of the
34th'Legislature.' Articles 1132 and 1133 of
the Penal Code were originally enacted in 1915
as Sections 12 and 13 ,of Chapter 122 of the Acts
of the 34th Legislature, but the wording of
these sections was changed in certain respects
when they were included in the Penal Code in the
revision of 1925. Is the title sufficient to
show that Articles 1132 and 1133 of the Penal
Code are repealed, especially in view of the
fact that in the first clause of the title to
this Act reference is made only to the articles
which are inoluded in the Revised Civil Statutes.
"(d) Treating the Act as an attempt to
amend~chapter 122, Acts of 1915, 35th Legisla-
ture, Articles 31 to 41, inclusive, Revised
Civil Statutes, the following changes are made
by the new Act which are not referred to in its
title:
"(1) Articles 31 to 41, inclusive, Revised
Civil Statutes, set up a plan whereby certificates
could be issued upon examination to certified
public accountants and prohibited the use of the
title of 'certified public acco,untant' by any
person not possessing a legal certificate. How-
ever, Article 41 (Section 14 of said Chap. 122)
specifically provided that nothing in the law
should be construed to prevent any person from
Honorable Perry L. Jones, page 3 (O-6847)
being employed as an accountant in this state
in either public or private practice, so long
as he did not hold himself out to be a certified
public accountant. The new Act limits the prac-
tice of public accounting to persons who were
able to meet certain qualifications 'at the date
of the enactment of this Act' and certified pub-
lic accountants. See particularly Sections 8
through 12, inclusive, of the Act. In other
words, the effect of the new Act is to prohibit
the practice of public accountancy except by
certified public accountants and a limited class
of public accountants who were practic,ing 'at
the date of the enactment of this Act.' Is this
broad change in the law sufficiently expressed
in the caption?
"(2) The new Act creates new offenses not
contained in the old law. Section 8 Prohibits
the practice of public accountancy except by
persons holding permits from the Board of Public
Accountancy. Section 18 prohibits the use of
the name 'public accountant' by any person who
does not have a permit to practice public ac-
countancy. Section 20 prohibits the use of any
of a long list of abbreviations by any person.
Section 24 fixes a criminal penalty for any per-
son who 'shall vi.olate any of the provisions Of
this Act.' Does the title sufficiently show
that the old law is amended so as ta create
these new offenses?
"(3) The old law contained no provision
for the promulgation of 'rules of professional
conduct' by the Board after a referendum of the
licensed accountants as is provided in Section
5 of the new Act. Section 22 (c) of the new Act
makes a violation of any of these rules a ground
for revoking a certificate or permit, Is this
change in the law sufficiently expressed in the
title?
"2 . Is the Act unconstitutional because it
is so vague and indefinite as not to give notice
to persons affected of their rights and obliga-
tions under the law? In connection with this
question, your attention is respectfully direct-
ed to the provisions of Section 11 (b), (l), (2),
(3), that a person is entitled to a permit who
'shall have been employed as an accountant or
Honorable Perry L. Jones, page 4 (O-6847)
auditor in work of a non-routine accounting na-
ture which continually required independent
thought and judgment on important accounting
matters.' Is this provision sufficiently defin-
ite so as to fix a standard whereby persons may
know who is and who is not entitled to receive
a permit?
“3 . Is Section 5 of the Act unconstitutional
as containing an unlawful delegation of leg-
islative power in providing that the Board may
promulgate rules of professional conduct, which
must be voted on and approved by a majority of
all holders of valid permits to practice public
accountancy in the state, voting at such election?
“4. If the Act is unconstitutional in any
of the respects referred to above, is the entire
Act void or are only certain sections void? If
the Act is only partially invalid, please advise
me which sections in your opinion are valid.
“5 . If the Act is wholly or partially in-
valid, which parts, if any, of the old law are
still in effeot?
“6. If the Aot‘"is valid, what is the mean-
ing of the phrase 'at the date of the enactment
of this Act', as used in Section 11 of the Act?
In this connection, the Board of Public Account-
ancy apparently has construed the phrase to mean
the date,upon which the Act was filed with the
Secretary of State without the Governor's signa-
ture, on June 6, 1945. Is this the correct con-
struction of this phrase, or should the date referred
to be construed to be the effective date of the
Act, which is 90 days after June 5, 1945, the date
of adjournment?
“7. With reference to Section 3 of the Act,
which provides that nothing in the Act shall be
construed as applying to any county auditor, or
other officers of the state, county, municipality,
quasi-municipality, or other political subdivision
thereof, or of their assistants, deputies, or
employees, I respectfully submit the following
questions:
"(a) Is this section valid in exempting the
named persons from the operation of the Act?
Honorable Perry L. Jones;;page.5 (C-68,47) ,i1, ~:'!
"(b) If the,exemptiod ,is;validj.is itto
be construed.to mean'that the‘pers,otis.aamed "
therein may do any of the actswhich are,.pro-
hibited as to other persons by the Act, including
the‘general practice ofpublir: accountancywithout
a permit?
"(c) Arethe personsnamed in this section '8
eligible to register as pub,lio accountants under
the provisions of the Act?
I!(d) Does this, section apply to part-time
employees as well as to full-time employees?"
Relating to the title of the Act, the first question
here presented has several subdivisions, the specific answers
to which may be prefaced with some general principles concern-
ing the purpose, requirements and construction of titles to
bills passed by the Legislature. Article III, Section 35 of
the Constitution of Texas (which in substance is the same
as similar provisions in other states) provides as follows:
"No bill, (except general appropriation
bills, which may embrace the various subjects
and accounts, for and on account of which moneys
are appropriated) shall contain more than one
subject, which shall be expressed'in its title.
But if any subject shall be embraced in an act,
which shall not be expressed in the,title, such
act shall be void only as to so much thereof, as
shall not be so expressed."
The dominant purpose of this constitutional pro-
vision is to give notice to the legislators and the public
of the subject matter or the nature of the contents of the
bill and to avoid deception or surprise in legislation by
prohibiting the inclusion of unrelated matter. The title
of a bill should be sufficient to put anyone interested on
inquiry. Only the general or ultimate object of the Act is
required to be stated in the title and, itis sufficient if
such is fairly stated in a manner that would direct a person
of "ordinary, reasonably inquiring mind to the body of
the Act." (39 TGx. Jur.,~Sec. 36, pp. 75-78, and cases cited;
Horack's Sutherland Statutory Construction, Sec. 1701;
PP. 283-286, Sec. 1702,~~~~ 287-291; 50 Am. 'Jur., Sec. 166;
p. 135.)
This constitutional -provision:'ismandatory. Ex-
cept as otherwise
stitution of Texasrovide,d (in Article ~III,,Section 43, Con-
lt must Abe complied with inall acts of
Iionorable Perry L. Jones,,,page 6 (O-6847)
the I@gislature. (39 Tex. Jur., Sec. 37, pp; 79-80, and
cases cited; Horack's Sutherland Statutory Construction,
Sec. 1703, p. 291.)
Substantial compliance, however, is sufficient
and the provision will be liberally construed. Any doubt
will be resolved in favor of the validity of the title and
the statute. Technical construction will not be indulged.
It will not be glven"a construction unnecessary to accom-
plish the beneficial purpose for which the provision was
adopted and one which would tend merely to embarrass, retard
or defeat legislation. (39 'Tex. Jur., 38, pp.40-83, and
cases cited; Horack's Sutherland Statutory Construction,
Sections 1764, 1705, 1706, PP. 292-295.) -
The'title of the Public Accountanoy Act of 1945
reads as follows:
'An Act to amend Chapter 122, Acts of 1915, 34th
Legislature, known as Articles
- - 31 to 41, inclusive,
._-.
Revised Civil Statutes.or Texas; repealing said Chapter
122, Acts of the 34th Legislature; providing for the
creation of a State Board of Public Aocountancy in Tex+;
providing for the appointment of members of said Board,
and prescribing their qualifications, powers and duties
in regulating the practice of public accountancy in Texas;
providing for the issuance of annual permits to practice
public accountancy; providing for the examination ~of and
issuance of the Certificate of Certified Public Account-
ant to qualified applicants; providing venue and procedure
for cancellation of any certificate or permit; repealing
all laths.in eonflicttherewith;, providing for penalties
for violating $he provision of said Act; and declaring
any emergency.
With the foregoing as a guide-and considering the
above title in the light of its purpose, the several parts
of your first question are answered numerically as follows:
The first two clauses of the title
which states that it is an Act 'to
amend Chapterl22, Acts of 1915, 34th Legislature, known a8
Articles 31 to 41, inclusive, Revised Civil Statues of Texas,"
and the second of which states that it is an Act 'repealing
Chapter 122, Acts of 1915, 34th Legislature") are not consid-
ered in6oneistent and contradictory to the extent that the
title does not express the subject of the Act in compliance with
Article III, Section 35, of the Constitution of Texas. Con-
sidered together, thes,$ two clauses should put anyone inter- *
ested on notioe that tihe old law was being recast and that
there was a new comprehensive law being enacted. To find
Honorable Perry L. Jones, page 7 (o-6847)
them ounfusing or contrary to the purpose of the constitution-
al provision would be to embarrass legislation with a highly
technical construction.
: The penal provisions of the Act
are not invalidated bv reason of the title's
not specifying that the penalties 'for violation is a criminal
offense. The next to the last clause in the title reads:
"Providing for penalties~for violating the provision of said
Act." It is not required that the title of an Act be an
index or set forth in detail the contents. It is sufficient
if the reader be put on inquiry. The cases cited in the brief
submitted (Ex parte Heartsill, 38 S.W. (2d) 803; Rotner v.
State, 55 S.W. (2d) 98)are concerned with amendatory acts
which are limitedih,scope and only purpo@. to change the pre-
vious law in some particular. The Act here is comprehensive
of the entire subject with which it treatsand is not
strictly ,amendatory.
.I. That an offense may be created in an
Act when ~%he title states only that it provides "for penalties"
has been decided. (Singleton v. State, 111 S.W. 737; Watts
v. State 135 S.W. 585; Polk v. State, 148 S.W. 311; Focke v.
State, 144 S.W. 267; 39 Tex. Jur., Sec. 45, pp. 96, 98.)
Question 1 (cl: The title of the Act in question
is sufficient to cover the repeal bv the Act of Articles
1132 and 1133, of the Penal Code. As stated, it is not
required that the title be an index to the contents of the Act.
These articles were a part of Chapter 122, Acts of 1915,
34th Legislature, which the title states is being repealed.
The first clause designates Articles 31 to 41, inclusive, of
the Revised Civil Statutes of Texas, while the second clause
designates all of Chapter 122. Even if, because of this
difference or of the codification of said chapter, there were
a doubt, certainly the clause is sufficient to direct an inter-
ested person to the contents of the Act wherein these two
articles are specifically repealed.
This question is divided into three
parts numbwind (3) all of which concern
the sufficiency of'the title to'an amendatory Act. In the
brief submitted, it is stated that "the insufficiency of the
title is most apparent when considered in the light of the
rules applicable to captions of amendatory Acts: . . it is
well settled that if an amendatory Act undertakes to state
i-nwhat respects a prior Act is amended, then it must give
a fair statement of the changes effected by the new Act. . .'
The rule stated is correct as to Acts which are strictly
amendatory. But the Public Accountancy Act of 1945 is new
and comprehensive legislation on the entire subject with
which it treats. It is intelligible without reference to
,,
..I.,
Honorable Perry L. Jones, page 8 (O-6847)
any other statute. The Act is independent and complete
within itself and the usual constitutional restrictions on
strictly amendatory Acts are not applicable. It should
therefore be governed by the general rules applicable to
the necessity and sufficiency of titles, and it is not nec-
essary that the title list in detail all of the differences
between the repealed Act and the new legislation. (39 Tek.
Jur., Sec. 63, pp. 125-127; 59 C.J., Sec. 436, p. 858; 50
Am. Jur., Sec. 21'4, p. 192; Horack's Sutherland Statutory
Construction, Sec. 1921, pp. 382-388).
The title then is, on the whole, s,ufficLent to
meet the constitutional requirements. All of the clauses
in the title are germane to the general object of the Act
which is to recast the legislation regulating the practices
of public accounting and there are no provisions of the Act
which are unrelated to such an object, or invalidated by
the wording of particular clauses in the title.
There is next to consider the second question pre-
sented which relates to the certainty and definiteness of
the Act and particularly to Section 11, subsection (b), para-
graphs (l), (2) and (3), and to Section 12, subsection (d),
paragraphs (l), (2) and (3). These paragraphs of the Act
are quoted:
"(1) Who is a graduate of a junior college,
senior college or university and has completed
thirty or more semester hours or the equivalent
thereof in the study of accounting, business
law, economics and finance, of which at least
twenty semester hours or the equfvalent thereof
shall be in the study of accounting, and has been
in the employ of a person engaged in the practice
of public accountancy, or shall have been
employed as an accountant or auditonin work of
a non-routine accounting nature which continually
requires independent thought and judgment on
important accounting matters for two years
preceding the date of application; or
"(2) Who is a graduate of a junior college,
senior college or university but has not com-
pleted the hours of study in subjects specified
in subdivision (1) of this section, and has been
in the employ of a person engaged in the practice
of public accountancy, or shall have been
employed as an accountant or auditor in work of
a non-poutine accounting nature which continu-
ally requires independent thought and judgment
Honorable Perry L. Jones, page 9 (O-6847)
on important accounting matters for three years
preceding the date of application; or
"(3) who is a graduate of's high school
or has an equivalent education and has been in the
employ of a person engaged in the practice of
public accountancy, or shall have been employed
as an accountant or auditor in work of a non-
routine accounting nature which continually
requires independent thought and judgment on
important accounting matters, for at leat four
,years preceding the date of application;
II. . .
"(1) Who is a graduate of a junior col-
lege, senior college or university recognized
by the Board, and has completed thirty or more
semester hours or the equivalent thereof in the
study of accountrng, business law, economi.cs and
finance, o.?which at least twenty semester hours or the
iequri;val.en!t
Mereof' 'XshaU be‘:ih the s.tudy o;f' ac;sounting,
and!,has.be@ engja&d ,i~n; ~pract.i,oa
as a public: accountant,
ox ,been.In: the employ'.,of:,,a peraonieiQage,d in the prac-
tice, of, publi:C accountancy4 or Ssh,allhate:;been employed
'as:an ~accountaC&,ar auditor [in .wo~k'o~f~,la',non-routine
aceco!untting nature tihch cont~b~nu:a,PQ requlre,s independ-
en'tithotighthh?&;jkPdgmentjoin lim~br~anti~Iao~cir,uniting
ma~ttens:Co??'otxeyear; ,pr%ea.eding the,'da't,~;iaf:-'aapplication;
0rl.r:(1: ,: ,I?
,i:;:
.j;;i.uiij 0 ;
"(2) Who is a graduate of a junior col-
lege, senior college or university recognized
by the Board but has not completed the hours of
study in subjects specified in subdivision (1)
of this section, and has, been engaged in prao-
tice as a public accountant, or been in the em-
ploy of a person engaged in the practice of pub-
lic accounting, or shall have been employed as
an accountant or auditor in work of a ,,non-routine
accounting nature which continually requires in-
dependent thought and judgment on important ac-
counting matters for three years preceding the
date of application; or
"(3) Who is a graduate of a high school
with a four year course or has an equivalent ed-
ucation and has been in practice as a public
accountant, or been in the employ of a person
'engaged in the practice of public accountancy, or
Honorable Perry L. Jones, page 10 (O-6847)
shall have been employed as an accountant or
auditor in work of a non-routine accounting
nature which continually requires independent
thought and judgment on important accounting
matters, for at least four years preceding the
date of application; and
It is asked whether the phrase in each of the above
paragraphs, reading, 'or shall have been employed as an ac-
countant or auditor in work of a non-routine accounting nature
which continually requires i.ndep;nden'cthought and judgment
on important accounting matters. is suffi.ciently definite
I.0 .f.i
x :i stclndard whereby i! j\erson may know who ins
enti.tled to receiv6 :k ~erm:;,i;~. In the: brief submitted
:f
'L :i
s crjntonded-that the Act is'unhbnstitutional be-1 ~'
Ct:i'F:<'
:i.i;
i2; i~:~p;uo
c~:.nd
:i.r]defj.nil;e,
:~jJfi';t~@':$,~e of the'tabooe-
quot;ecJ phl,:ise.,.j,~y.L, #, :;I, !’ ,,;~ I.::. j’ _(:I. ,, :’
. ,~..~
That laws must be certain and definite to be valid
is fundamental. Certainty and definiteness, however, are
relative terms and must necessarily vary with the subject
matter. The difficulty of at once avoiding arbitrariness or
discrimination and employing exact language is readily ap-
parent and it appears generally sufficient if the terms used
are as certain or definite as the subject matter permits.
In Baltimore and Ohio Railway Company v. I.C.C. (221 U.S.
612) the Supreme Court of the United States, in considering
the certainty of a phrase, "except in case of emergency,"
said:
II
. . . But this argument, in substance,
denies to the Legislature the power to use a
generic description, and if pressed to its
logical conclusion, would practically nullify
the legislative authority by making it essen-
tial that legislation should define, without
the use of generic terms, all the specific in-
stances to be brought within it. In a legal
sense there is no uncertainty. Congress, by
anappropriate description of an exceptional
class, has established a standard with resp$ct
to which cases that arise must be adjudged.
This case is quoted from and followed by the
Supreme Court of Texas in State v. International & G. N. Ry.
co (179 S.W. 86’7) wherein the court discussed at length
the'l'certainty and definiteness" required~ of a statute.
(See also Bradford v. State, 180 S.W. 702.) The following
from the court's opinion is quoted:
Honorable Perry L; Jones, page 11 (O-6847)
II
. . . Construing it strictly, if its pro-
visions are vague and uncertain of meaning to a
degree that those engaged In the line,of industry
affected by the act as operatives'and managers
of such industry could not comprehend its
meaning, thenthe act sho~uld be held inoperative
and void for uncertainty of meaning. The provisions
of the act, in order forit to be enforceable, should
be plain enough in meaning for those operating
the industry affected by it to know and realize whether
by engaging in an act of repair they would breach its
terms. If the act meets and fulfills the requirements
of this rule, it would be sufficiently definite in
meaning to be operative. If it is not sufficiently
plain in meaning for those engaged in the line of
industry affected to so understand its terms and
provisions, then the act would and should be held
void for uncertainty, as it would be inexcusable
for a government to fine or punish its citizens
for an infraction ofalaw which in its terms
,could not be ,understood by them. But it is equally
tr,ue that, if the act of the Legislature is as
definite in meaning as the nature of the subject
would allow, no more than,this should be expected
to meet the rule of certainty required; to ,.holdother-
wise would be to nullify the power of the Legislature
to legislate at all on a proper subject for its
consideration. .,. . As used in this connection, we
think the meaning of that portion of the'act of the
Legislature which creates the offense is not rendered
as uncertain as it would be if the term 'light
repairs' constituted an ingredient of the offense itself.
I!
. . . If a definition of the term 'light re-
pairs' had been attempted, it would have been impossible
of construction, unless a catalogue of all re'pairs that
might be considered 'light' was embraced in the act‘.
This would have been indeed a difficult, if not an
impossible, task, when all the separate parts of the
complicated machinery in use in the equipment and ober-
ation of railroads which might need repairs were
considered, and the character of the repairs to each
of said.pieces of machinery, whether 'light' or
otherwise, were taken into account. . .,Such a rigid
requirement would be too great a restriction upon
~the legislative function, and if followed, would
shorten the arm,of the Legislature to an extent
that would amount to.a serious hindrance to the exer-
cise of their constitutional func,tions. We .know of no,
rule of construction that would ~a'utharizeus'to, .b~
Honorable Perry L. Jones, page 12 (O-6847)
nullify an act of the Legislature because
of uncertainty in meaning, when 'from the
nature of the subject legislated upon no more
definite meaning could reasonably be expressed,
the effect of which would be to prohibit
legislation upon the subject. ... We think.the
Statute in auestion is sufficlentl?? definite for those
affected by-it to understand its meaning so as to
know under what circumstances they would be
transgressing its provisions. Thisiis all that
is or should be required.
I,
In the water-closet statute (Acts 29th
Leg. c:" 133), which was penal in its nature, one
of the requirements of the railroad com&anies was
to keep water-closets or privies in a 'reasonably
clean and sanitary condition.' Another of its
provisions was that said water-closets should be
maintained 'either within its passenger depots,
dr in connection therewith, or within a reasonable
and convenient distance therefrom.' Another
was 'to keep said water-closets and depot grounds
adjacent thereto well lighted at such hours in
the nighttime as its passengers and patrons at
such stations may have occasion to be at the same.'
II
,.. In passing upon that case this court,
speaking through Mr. Justice Phillips, clearly
expressed the true rule, and the reason therfor,
in the following language:
" I... Its terms are suitable to the subject
matter of the act; and, having regard for the
difference in conditions at the stations upon
railway lines where it is made operative, the use
of more specific language would very probably
have provided only an arbitrary and impracticable
rule.' State v. T. & P. Ry. Co., 154 S.W. 1159.
II
...' (Underscoring ours)
The cases cited in the brief submitted (page 14)
are not strictly applicable here because in (1) Lone
Star Gas Company v. Kelly (165 S.W. (2d) 446), the primary
consideration was given to an order ofthe Railroad Commission
(2) American Federation of Labor v. Mann (188 S.W. (26)
276), the uncertainty was determined on contradictory phrases,
and (3) Sheppard v. Giebel, xl10 S.W. (2d) 166), there was
uncertainty as to which of two persons were subject to the
penalty or liable for the tax.
Honorable Perry L. Jones, page 13 (0-6847~)
It Is noteworthy that the phrase in question is not
a portion of the Act which penalizes the violation of its
provisions. ,The phrase is inserted for the guidance of the
Board created by the Act which in this respect is a fact-
finding body and it appear~s throughout the Act as an alter-
native to the requirement of employment by a person engaged !
in the practice of public accountancy.
On the whole, the question of whether the phrase
is vague and indefinite to the extent that it invalidates
the Act, or those sections of the Act Ianwhich it is used,
turns on whether it is clear enough for the Board and
Accountants generally to comprehend its meaning. ,If it is
plain enough for those engaged in the profession which it.
affects to understand it, it 1s sufficient. This must be
determined with r,eference to the s.ubject matter and if the
phrase is as "definite in meaning as the nat,ure of the
subject would allow, no more than this should be expected
to meet the mle of certainty required."
In a broad, generic sense the subject of acco,unt-
ing embraces the keeping and explanation of business ac-
counts and anyone engaged In any manner in work involving
either of these might be designated as an accountant. Within
the profession of accounting, however, and in a more specifics
sense the mere keeping of accounts is distinguished from
their explanation.~ Many varying classifications of persons
engaged In this type of work have been made in different
localities and businesses and included are such relative
descriptions ,as bookkeeper, accounting clerk, auditing
clerk, junior accountant, semi-senior accountant, senior
accountant and certified public accountant. Obviously, the
work is of such a nature that in whatever classificationa
particular employment is placed it may on occasion invade
or assume the character of duties in another classification.
It appears, therefore, that the qualifications to
be required of a person before he 'may hold himself out as a
public accountant cannot be exactly circumscribed without
providing an arbitrary and Impracticable rule. It would re-
quire a catalogue of impossible magnitudes While ultimate
definition of the words employed in the above Fhrase would
be difficult, it is believed that,> when read as a whole, it
should present no difficulty to the understanding of account-
ants generally, and that from it they could determine whether
a particular employment was within its scope. Such, in the
last analysis is the test and it therefore appears that the
phrase Is as certain and definite as the subject permits.
Honorable Perry L. Jones, page 14 (O-6847)
The third question asks whether Section 5 of the
Act is unconstitutional as containing an unlawful delega-
tion of legislative power. This Section 5 provides in part
as follows:
II
..o The Board may promulgate, and may
amend from time to time, rules of professional
conduct appropriate to establish and maintain
a high standard of integrity in the profession
of public accountancy, after notice to all hold-
ers of valid permits to practice public accountancy
in this state. Such notice shall set forth the
proposed rules of professional conduct or
amendments and the time when same shall be voted
on by public accountants holding valid permits
under this Act. No such rule or amendment shall
be operative until approved by a majority of those
voting at such election. The ,voting shall be by
mall and under such reasonable rules and regula-
tions;:as the Board may prescribe. The Board
shall declare the results of such election and
proclaim the effective date of such rules of
professional conduct, or amendments, and
adopt reasonable means of notifying all public
accountants of the results of such election. D..'
Granting that the Legislature has broad power to
delegate to administrative bodies the promulgation of rules
and regulations for carrying out general policies fixed by
the Legislature, the brief attacks this delegation as being
too broad and giving to private persons the right to
make rules having the effect of law in that a violation of'
such rules is a ground for revocation of permits granted
under the Act.
Section 22 of the Act provides that the Board
shall have power to institute proceedingsagainst any per-
son charged and found guilty of:
"(a) The practice of any fraud or deceit
in obtaining a certificate or a permit;
"(b) Any gross negligence or misconduct
in the practice of public accountancy;
"(c) Violation of any of the provisions
of this Act or any of the rules or regulations
promulgated by the Board."
Honorable Perry L. Jones, page 15 (O-6847)
,,
There is no invariable test by which the delegation
of authority by the Legislature and particularly'the power
to make rulesand regulations for effectuating a' statute, may
be determined; There ~s,an,,fll-defined,line between powers
which are strictly legislative and'those.which are'not. (9
Tex. Jur., Sec. 68, ~~'494.) In recent years ~the-power of
delegation has broadened with an I.ncrease in comp'lex and
technical matters regarding which,legislation has been
necessary: It"appears well-settled in ,Texas that the Legis-
lature may grant to boards and commissioners power to make
rules for effectuating general Btatutes, power to,fPnd
facts on the ascertainment of,which a completed law shall be-
come applicable and powers which the Legislatures cannot
itself practically and efficiently exercise. (Triinier v.
Carlton, 296 S.W. 1070; Rhodes v. Tatum, 206 S.W. 115;
O'Brien v. Ammerman, 233 S.W. 1819:~Bhrgess vi American
Rio Grande Land & Irrigation Co., 295:S:W.~649; Williams v.
State, 176 S.W. (2d) 177; Corzelius v. Harrell, 186 S.W.
(2d) 961; Treewitt v. City of Dallas,,242 S.W. 1073,.)~ It
has been said that as,the State has the power to regulate
a profession affecting the public and may delegate,to a~
board or agency the a,uthority to pass on qualifications,
it may also delegate'the power to revoke licenses that have
been issued (Francisco v. Board'of Dental Examiners, 149
S.W. (2d)'619; See also Berry v. State, 135 S.W. 631.) The
opinion of the Court of Criminal Appeals inwilliams v. State,
supra, by Judge Davidson,,is particularly applicable here,
wherein It was said:
"The question'of this delegation of authority
has been much before the courts, and especially is
that true in recent years by,the enlarged powers F
conferred upon administrative baards and tribunals.
The generally accepted rule governing such matters
now appears to be that a~ legislative body may, after
declaring a ,pollcy and fixing a primary standard, con-
fer upon executive or administrative officers the
power to,fill up the details, by,prescriblng rules
and regulatlonsto promote the purpose and spirit of
the legislation'and to carry it into effect. In
such cases the action of the Legislature in giving
such rules and regulations the force of laws does,
not violate the constitutional inhibition'against
delegating the le islatlve function. The rule finds
support, in Field 7Marshall) v. Clark, 143 U.S. 649,
12 So.'Ct. 495, 505! 36 L.Ed.,294,, wherein the Supreme
Court. said: 'The legislature cannot delegate its
power to make a law, but it can make a law to delegate
a power to determine some fact or'state of thlngs~
Honorable Perry L. Jones, page 16 ‘(O-6847)
'upon which the law makes, or intends to make,
its own action depend. To deny this
would be to stop the wheels of government.
There are many things 'upon which wise and use-
ful legislation must depend which cannot be
known to the law-making power, and must therefore
be a subject of inq,uiry and determination
outside of the halls of legislation,' See also:
United States v. Grimaud, 220 U.S. 506, 31 S.
Ct. 480, 55 L. Ed. 563; United States v. Shreve-
port Grain & Elevator Co., 287 U.S. 77, 53 S.
Ct. 42, 77 L,*Ed. 175; Panama Refining Co. v.
Ryan, 293 U.S. 388, 55 S. Ct. ~241, 79 L. Ed. 446;
Ex parte Leslie, 87 Tex. Cr. R. 476, 223 S.W.
227; Carter v. State, 135 Tex. Cr. R. 457, 116
S.W. 2d 371; Smith v. State,,74 Tex. Cr. R, 232,
168 S.W. '322; Tuttle v; Wood, Tex. Civ. App., 35
S.W. 2d 1061; Britton v. Smith, Tex. Civ. App.,
82 S.W.2d 1665; Housing Authority of.Gity of
Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.
2d 79, 130 A.L.R. 1053; and authorities from
other jurisdictions, collated under 79 L.Ed, 490."
The delegation here in question (Section 5, above-
quoted) is not mandatory but permissive. It has given to'
the Board the discretion of promulgating rules "appropriate
to establish and maintain a high sttndard of integrity in-~
the practice of Public accountancy, There is a standard
set and the rules could be no more than a defining in detail
of what acts or procedures within the profession of account-
ing would or would not come within its scope. The a,uthority
is not so much given to private persons as it is to the
profess,ion of accounting; it is a prescription for the
machinery orprocedure by which the profession may be, in a
measure and insofar as ethics are concerned, self-governing.
There is a strong similarity between this dele~gation
and that to the Supreme Court of Texas in the State.Bar
Act (see Article 320a, Section 4> V.A.C,S.; and see also
Hexter Title and Abstract Co. v. Grievance Committee, 179
S.W.(2d) 946). Any',rules promulgated and approved here-
under would not appear to appFoaCh ifi force rules effected
under the Bar Act.
Although the Act empowers the Board to institute
proceedings for a violation of any rules established, it
does ,not necessarily authorize a ~revooationdr'.a permit for
an infraction thereof. It leaves them subject to judicial
review (see Section 23) and directs that the court find any
"Act or acts are in violation of the provisions of this Act."
.
Honorable Perry L. Jones, page 17 (O-6847)
Further, integrity as used in thisdelegation is
synonomous with "moral soundness, honesty, freedom from cor-
rupting influence or practice." ,Elsewhere in the,Act (Sec-
tion 11 and Section 12 (c)), it is provided that persons
entitled to a permit must be of "good moral character." Sec-
tion 22 (b) provides that proceedings may.be instituted to
revoke a, perFit for "misconduct in the practice of public
accountancy. To the enforcement of the Act, therefore, it
does not appear important whether any rules established are
made the basis for revocation of permits. Considering the
nature of the practice of accounting, it appears that any
infraction of rules in consonance with the 'high standard of
integrity" specified would as well manifest the absence of
"good moral character." Although,what~ will constitute "mis-
conduct," as used in the Act, is left a judicial question,
It would certainly appear that such would include any
violation of rules calculated to estab~lish and maintain
integrity within the profession.
The above considered, this office,.cannot concur
that suoh a cautious and restricted delegation, subject as
it is to the approval of the persons affected and to judi-
cial review, is unconstitutional.
The fourth and fifth questions are predicated on
the Act's being wholly or partially invalid and inasmuch as
it has not been found unconstitutional in any respect, no
answer to these questions is required.
The sixth question asks the meaning of the phrase,~
"at the date of the enactment of this Act,"'as used in Sec-
tion 11. As stated in the brief, there does not appear to
be any Texas case precisely in point. The case there zited
(at page 17, in Re Hendricks,, 57 P.ac. 965, by the Supreme
Court of Kansas, July 8, ,189g) holds thH;;e;;; phrases means
the time of the law's takln effect. a more re-
cent case of another state 7State v. Gibbons ,'203 Pac. 390
by the Supreme,Court of Washington, January, 4 1922) hold;
that the 'date of enaotment" means the time &at the'law
comes into existence, it being complete as such time, and
not the date onwhich,the Act takes effect. Definition of
the term 'enactment" should, of course, be consistent with
the Constitution of Texas, and in Article III, Section 39,
there is a clear distinction between the date on which
a law "takes effect" and the date on which it is "enacted." The
term "enactment" relating to statutes is substantially
synonomous with "passage which is ,use,din connection with
legislation in several senses and the meaning of which must
be determined from the intention appearing from the statute
as a whole. (See Scales v. Marshall, 70 S.W. 945.)
Honorable Perry L. Jones, page 18 (O-C;34',)
Considering the Act as a wholeA it appears that
during the legislative process the only date of enactment"
understood by the Legislature would necessnrtly have been
that on which the legislative process was completed, as the
bi~ll contained a il:rov:sionthat it would be effective "from
and Uter its passage." That the bill did not recej~ve the
required vote has no bearing on the intent as to the mean-
ing of the phrase in question. It seems clear that it was
intended to treat with public accountancy as it existed at
the time the legislation was being considered and to fix the
date on which the status of the individuals affected could
be determined. This question is therefore answered that by
"the date of the enactment of this Act" is meant the,date
when the law came into existence, or June 6, 1945.
The question seven presented relates to Section 3
of the Act and is divided into four subdivisions. This
section provides:
"Nothing in this Act shall be construed as
applying to any County Auditor, or other officer
of the state, county, municipality, quasi-municipality,
or other political subdivision thereof, Er of
their assistants, deputies or employees.
Considering all of the circumstances and the Act
as a whole, it appears that the intent of this provison was
to obviate any possible misunderstanding of the preceding
Section 2 as including In its scope the officers named as
such. It was to make clear that the Act did not affect the
qualifications of such officers for, their respective offices.
To view ~this provision ,in any other light would be
to impute to the Legislature an intent to make an unreason-
able and arbitrary discrimination in that, on the one hand',
these officers could practice public accountancy without
permit or, on the other hand, they oould not register as
having been in the employ of "any governmental agency" and
this phrase (in Section 11 (b) would be restricted to the
Federal Government alone. That construction of statutes
should be reasonable and in favor of validity rather than
strict resulting in invalidity, is fundamental. The several
parts of question seven may therefore be answered as follows:
(a) This Section 3 is not unconstitutional.
(b) It is not to be construed that officers or
persons named .ln SeCtion Ymay‘do- anythlng'prohibited~ by the
Act, but as;;indiCiduals, they mustcomply~~ith its
provisions.
L
Honorable Perry L. Jones'; page, 19 (Q-6847) L :‘~ :.
(c) The persons named in;th,is sectionare eligible
to register as public accountantsasbelng in:;the~employ of
"any governmental agency,'!,,if.,they
meetthe other qualifica-
t<ons.
(d) This section 3 applies to,part-time employees,
when they are strictly assistants, deputies, or employees of
the officers named therein, but the exemption is not agplica-
ble to persons doing auditing work for the State, county,
municipality, or quasi-municipality as independent contractors.
After receipt of~Che:inquiry,answered above, this
office ha6 received another request foran opinion relating
to then Public Accountancy;;Act of 1945, :from Honorable Homer
L. Moss, County Attorney,:Wheeler;-County, ,Wheeler,~Texas.
The pertinent paragraphs of this request are;'quoted:
., ,,,,
.,
"The local Wheeler County~Bar, ~including
,myself, have beeninterested in whether or.not.
,,~~ a recent actof the~Legislature;:titled;S; B:,..
176, Vernon's Ann. Civ; St., art, 4la.,.,regulat:::
ing the practice,of.public accountancy in Texas
applies to licensed attorneys who merely prepare
income tax returns..
"The facts are as follows: The local county
group and no doubt, many other attorneys do not
hold themselves out inany manner as public
accountants and do not undertake for a fee or
otherwise~ to audit or prepare accounts for in-
dividuals as bookkeepers or any manner other
than the examining and auditing such books as
an Incident to the proper preparation of the
required Federal Income tax report6 and estimates.
The primary purpose of this Act is to regulate the
"Practice of Public Accountancy." This quoted term isused
throughout the Act, and in Section 2 thereof is defined as
follows:
"Definitions. (a) 'Practice of PublicAc-
countancy.' A person engages in the 'practice
of public accountancy' within the meaning of this
Act who, holding himself out to the public as a
public accountant, in consideration of compensa-
tion received or to be received by him, offers
_.
Honorable Perry L. Jones, page 20 (O-6847)
to perform or does perform, for other persona,
services which Involve the~auditlng or examination
of financial transactlone, books, account8, or
records, or the preparation of, or the report-
ing over his signature on, financial, accounting
and related statments.
An application of the above definition to the Act
as a whole does not reveal any prohibition against licensed
attorneys performing services of the kind mentioned. It Is
apparent from the.above that one'8 "holding himself out to
the public aa a public acoountantn Is necessary to the ap-
plicability of the Act. That one profession may at times
perform services whlch~are also within the province of an-
other profesalon 18 evidenced by the Act itaelf in that
accountants to be certified under the Act must ,pasean
examination on commercial law. Taxation is certainly ai3
much (if not moref.;.,wlthln
the province of the legal as of
the accounting profeaslon, and both profeesions practice
(after admission) before the Tax Court of the United States.
The deciding factor;'therefore, Is not so much the service
performed, as the capacity in which one Is employed to
perform It, and the queation here Mayobe answered,that this
Act doea not prohibit duly~qualified attorneys-at-law from
performing any service for which he is employed In a legal
capacity.~
Very truly yours,
ATTORNEY GENERAL OF TEXAS
(signed)
Approved Oct. 29, 1945 BY Jackson Littleton
signed:' Assistant
Carlo6 C. Ashley
First Assistant
Attorney General
Approved Opinion Committee
By G.W.B.
Chair'man
JL:db:jcp:ddtrce