The Unlicensed Clerk Who Called the Bids
Hank owns an auction company and holds a Texas auctioneer license. His regular caller is out sick. Hank has an unlicensed employee, Dev, who has watched hundreds of sales. Hank tells Dev to "get on the mic and keep it moving" for a Saturday livestock sale while Hank handles clerking and cashiering. Dev calls bids for three hours. A losing bidder later learns Dev is unlicensed and complains to the state. Hank's defense: "I was on-site the whole time, I supervised him, and I'm the licensee responsible for the sale."
1. Does Hank's supervision cure the problem of an unlicensed person calling bids? Explain the reasoning.
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No. Supervision by a licensee does not convert an unlicensed person into a lawful auctioneer. The licensing requirement attaches to the activity of calling or conducting the auction, not merely to who owns the company or who is in the building. If an unlicensed individual actually solicits and calls bids as the auctioneer, the fact that a licensee is present and "responsible" does not launder the conduct.
Hank's defense also fails because he was not merely supervising - he was clerking and cashiering, meaning the auction itself was being conducted by Dev. The presence of a licensee who is doing other jobs does not satisfy the requirement that the person exercising the auctioneer's function be licensed.
The complaint has substance, and Hank's exposure runs to both him and Dev, plus the company's ability to show it conducted the sale lawfully.
2. What should Hank have done when his caller was out sick, and what records should the company keep to show compliance at each sale?
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Compliant options:
- Postpone or reschedule the sale until a licensed auctioneer is available.
- Bring in another licensed auctioneer - an employee, a contract caller, or a reciprocal-license holder - to call the sale.
- Have Hank himself call the sale and reassign clerking/cashiering to Dev or others, since clerking and cashiering are tasks an unlicensed assistant can perform under the licensee's direction.
Records to keep per sale: the name and license number of the auctioneer who called the sale; the date, location, and sale type; the roster of licensed and unlicensed personnel and their roles; the contract/consignment terms; buyer and seller settlement records; and any trust-account or disbursement records. If a substitute caller is used, document who was engaged and when. Being able to produce a per-sale record showing a licensed caller is the best defense to a complaint like this one.