THEA~TORNEY                      GENERAL
                                OFTEXAS

Gerald C. Mann




    Hon. M. .O. Flowers                    Opinion No. O-1925
    Seoretary 0r State                     Rer Are companies such as John
    Austin, Texas                          Hancock Mutual and Jef’rerson
                                           Standard subject to the Real
    Attention    or Mr. K. King            Estate Dealers License Aot?
    Dear Sir:
                 Your request      for an opinion on the above stated          ques-
    tion    has been received      by this department.
                 Your letter    reads as      follows:
                  ItIt is the desire of this office to secure an
            opinion from the Attorney General as to whether
            companies such as John Hancock Mutual and Jefferson
            standard. etc., are subject to the Real Estate Deal-
            ers Liceise   Act.
                  “These companies operate their own loan and
            sales department, paying straight   salaries instead
            of commissions.~
                 You further inform us that Jefferson   Standard is a
    regular life,    health and accident insurance company, organ$zed
    under Chapter 3, Title 78 of Vernon’s Civil Annotated Statutes.
    Companies such as John Hancock Mutual and the Jefferson       Stand-
    ard make loans upon first liens upon real estate ana occaslon-
    ally it Is necessary for such companI.es to foreclose      such liens
    and sell,the    property obtained by such foreclosures.
                 Article   4818,   Vernon’s     Civil    Annotated Statutes,    pro-
    viaas    in part:
                   “Mutual life insurance companies shall invest
            their funds in accordance with the provisions    of the
            third ohapter of this title,   concerning investments
            of life Insurance oompanies in this State;. . ..”
              Article  472.5, Vernon’s Civil Annotated Statutes, set-
    ting out the seaurities   in which a life insurance company organ-
    ized under the laws of this State may invest or loan money,
    provides among other things:
Hono M. 0. Flowers,      page 2     (O-1925)

           ”. . ..It may also make loans upon rirst liens
     upon real estate,     the title to which is valid and
     the value of which is rmty (40%)per cent more
     than the amount loaned thereon; or upon first         liens
     upon leasehold    estates in real property and improve&
     ments situated thereon, the title       to which is valid,
     and the leasehold has not less than thirty         (30)
     years to run before explratlonj       provided that the
     duration of any loan upon such leasehold        estates
     shall not exoesd a period or ten (10) years; or upon
     any obUgatlon      secured collaterally     by any suah
     rlrst liens. a .n
           House Bill No. 17r as passed by the 46th Legislature,
commonly known and tit ad as “The Real Estate Dealers License
Act’1 reads in part as followsr
           ‘lSeo. 2, The following         terms shall   unless the
     context otherwise Indicates,          have the roilowing mean-
     Ings:
             ‘I (a) e (1) e The term ‘Real Estate Dealer’ shall
     include every person ,or company, other than a sales-
     man and licensed           and registered    attorneys,    who for
     anof her or others for compensation or other valuable
     consideration,         or who with the intention        or in the
     expectation        or upon the promise of receiving         or col-
     lectlng      compensation or other valuable consideration,
     list’s ror sale, sells,          exchanges, buys or rents           or
     o%rers,      or attempts,     or  agrees  to  nego e iate  a  sa  e,
                                                                      3.
     exchange, purchase, or rental of an estate or inter-
     emst in real estate,         or collects,    or offers,    “r at-
     tempts, or agrees to collect            rent for the use of
     real estate , or negotiates,           or offers, or attempts,
     or agrees to negotiate           a loan, secured or to be se-
     cured by mortgage or other lnaumbrance upon or trans-
     fer of real estate!          or auctions,    or offers,    or
     attempts, or agrees to auction any real estate;                  or
     appraises,        or offers,   or attempts, or agrees to ap-
     praise any real estate!           or who advertises,      or holds
     Itself,      himself,    or themselves out as engaged in the
     business of selling,          exchanging, buying, renting,          or
     leasing real estate,          or assists    or directs    in the
     procuring of prospects,           or the negotiation      or closing
     of any/transaction          which does or is calculated        to re-
     sult in the sale, exchange, leasing,              or renting of
     any real estate          or who buys or offers to buy, sells
     or ofrers to se i 1, or otherwise deals in options on
     real estate or in the Improvements thereon.
Hon. M. 0. Flowers,   page 3    (0-19,225)


            “(2).      The term ‘Real Estate Dealer’ shall
     also include any person or company employed by
     or on behalr of the owner or owners of lots or
     other parcels of real estate at a stated salary,
     or upon a oommission, or upon a salary aa .oom-
     mission basis, or otherwise,       to sell such real
     estate In any parts thereof,       in lots or other par-
     cels    and who shall sell or exchange, or offers,
     or ac tempts, or agrees to negotiate        the sale or
     exchange of any such lot or parcel of real es-
     tate; provided        however, if the owner of lots
     or other parce i s is engaged in the business of
     buying      selling    exchanging, leasing,   renting of
     properly and hoidlng himself out as a full or
     part-time     dealer in real estate,    then such person
     employed by said owner may be licensed         as a sales-
     man of said owner if said owner has been licensed
     as a dealer in real estate.
           ” (3). The term (Real Estate Dealer’ shall
     include any person or company engaged in the busi-
     ness of buying, selling,   exchanging, leasing
     renting 0r property on his or its own accoun 4 ana
     holding himself or ltselr   out as a full or part-
     time dealer in real estate.
           ” (b) . The term ‘Real Estate Salesman’ shall
     mean and include any person or company employed
     or engaged by or in behalf of a licensed     real
     estate dealer to do or deal in any act      acts, or
     transactions     set out and comprehended by the defi-
     nition of a ‘Real Batate Dealer’ In Seotlon 2,
     Subsection    (a) of this Act.
          “‘(0).  If the sense requires   it, words in
     the present tense include the future tense; in
     the masculine gender, Include the feminine or neu-
                  in the singular number, Include the
                     In plural number include the singu-
                        may be read ‘or’;    and Ior1 may

           “Sea. 3. The provisions  of this Act shall
     not apply to   and the terms ‘Real Estate Dealer’
     and ‘Real E&ate Salesman I, as above deflned,
     shall not Include:
           “(a).    Any person or company who, as owner
     or lessor,    shall perform any of the acts set out
                                                                 *
                                                                     .




Hon. 14. 0. Flowers,   page 4   (04925)


     in Section 2, Subdivision    (a) with reference
     to property owner or leased by them, or to the
     regular employees thereof with reference     to the
     property owner or leased by such pers.on or corn-
     pany where such acts are performed in the regu-
     lar course of, or as incident to, the management
     of such property and the investment therein,
     unless such person or company is engaged In the
     business of buying, selling,    exchanging., leas-
     ing, or renting of property and holding himself
     or itselr   out as a full or part-time dealer in
     real estate.
           ” (b) o Persons acting as an attorney in
     fact under a duly executed power of attorney
     from the owner authorizing      the final consumma-
     tion by performance of any contract for the sale,
     leasfng,    or exchange of ,real estate;   services
     rendered by an attorney at law, recefver,        trus-
     tee in bankruptcy, adminfstrator,       or executor,
     or any person doing any of the acts speclfled          in
     Section 2, Subdlvislon     (a) ~of this Act under or-
     der of any court; a trustee acting under a trust
     agreement, deed of trust, or will,       or the regu-
     lar salaried    employees thereof.
            “Cc) 0 Any person, partnership,  or corpora-
     tion who has secured a license under Texas Se-
     curlties’    Act, House Bill No. 521, Regular Ses-
     sion, Forty-fourth    Legislature 0
             Wet. 4. An one act set out in Section
     ‘2, Subdivision    (a ‘; of this Act when performed
      ‘for another or others for compensation or valu-
      able consideration      or who with the intention    or
      in the expeotation      or upon the promise of receiv-
      ing or collecting      compensation shall constitute
      a person or company performing,      offering   or at-
      tempting to perform such act or acts, a real
       estate dealer or a real estate salesman within
      the meaning of this Act.”
           The provisions  of the above mentioned act do’not
apply to, and the terms   “Real Estate Dealer” and “Real Estate
Salesman’* as above defined by the statute,   do not include
any person or company who, as owner or lessor     perform any of
the acts set out in Section 2, Subdivision    (a3 with reference
to property owned or leased by them, or to the regular employ-
ees thereof with reference   to the property owned or leased by
such person or company where such acts are performed in the
Hon. M. 0. Flowers,     page 5   (O-1925)


regular course of   or as Incident to, the management of such
property and the investment therein,   unless such person or
company is engaged in the business of buying, selling,      ex-
changing, leasing,  or renting of property and holding himself
or itself  out as a full or part-time  dealer in real estate.
We believe that the buying, selling,  exchanging,   leasing,    or
renting of property obtained under foreclosure    proceedings    by
the companies above named or like companies would be acts per-
formed in the regular course of, or as Incident to, the man-
agement of such property and the investment therein.
           Therefore, you are respectfully   advised that it Ls
the opinion of this department that the John Hancock Mutual
Insurance Company and the Jefferson    Standard Life, Health and
Accident Insurance Company and like companies when engaged in
the above mentioned acts would not be subject to the Real Es-
tate Dealers License Act.
            Trusting   that the foregoing    fully   answers your in-
quiry,   we remain
                                   Very truly    yours
                                   ATTORNEY
                                          GENERALOF TEXAS
                                  By /s/    Ardell Williams
                                  Ardell    Williams,  Ass&stant
APPROVED FEB 16, 1%
/s/ Gerald C. Mann
ATTORNEY  GENERALOF TEXAS
APPROVED:OPINION COMMITTEE
BY:     BWB,CHAIRMAN
AW:AW:wb