Actual Authority Express and Implied In Texas
Actual authority usually denotes the authority that a principal:
(1) intentionally confers upon an agent;
(2) intentionally allows the agent to believe that he or she possesses;
(3) allows the agent to believe that he or she possesses by want of care. See Sociedad De Solaridad Social "El Estillero" v. J.S. McManus Produce Co., 964 S.W.2d 332, 334 (Tex. App.-Corpus Christi 1998, no pet.).
Actual authority includes both express and implied authority. See Streetman v. Benchmark Bank, 890 S.W.2d 212, 215-16 (Tex. App.-Eastland 1995, writ denied).
Express authority exists where the principal has made it clear to the agent that he wants the act under scrutiny to be done. See Mexico's Indus., Inc. v. Banco Mex. Somex, S.N.C., 858 S.W.2d 577, 583 (Tex. App.-El Paso 1993, writ denied).
Implied authority exists where there is no direct proof of express authority but appearances justify finding that in some manner the agent was authorized to do what he did. See Insurance Co. of N. Am. v. Morris, 928 S.W.2d 133, 144 (Tex. App.-Houston [14th Dist.] 1996), rev'd on other grounds, 981 S.W.2d 667 (Tex. 1998).
Implied authority may rise:
(1) from some indication from the principal that the agent possesses the authority;
(2) from being the necessary implication of an expressly authorized act;
(3) from a previous course of dealing. See Pasant v. Jackson Nat'l Life Ins. Co., 52 F.3d 94, 97 (5th Cir. 1995); Texas Conservative Oil Co. v. Jolly, 149 S.W.2d 265, 267 (Tex. Civ. App.-El Paso 1941, no writ). Agency can be implied from the conduct of the parties under the circumstances. See Thornburgh, 39 F.3d at 1296-97; Grace Community Church v. Gonzales, 853 S.W.2d 678, 680 (Tex. App.-Houston [14th Dist.] 1993, no writ).
On the question of implied agency, it is the manifestation of the purported principal-agent relationship as between themselves that is decisive and not the appearances to a third party or what that third party should have known. See Esso Int'l, Inc. v. SS Captain John, 443 F.2d 1144, 1148 (5th Cir. 1971) (citing RESTATEMENT (SECOND) OF AGENCY 7 (1958)).
For an agency to be implied from the acts and conduct of the parties, there must be some act amounting to an appointment as agent. See Newell v. Lafarelle, 225 S.W. 853, 855 (Tex. Civ. App.-El Paso 1920, writ dism'd) (one has no authority to act as agent of another except by virtue of some act of the other amounting to appointment as agent); 3 TEX. JUR. 3D Agency 19 (1996).
Actual authority relies for its creation on some manifestations, written or spoken words or conduct of the principal, communicated to the agent. See Spring Garden 79U, Inc. v. Stewart Title Co., 874 S.W.2d 945, 948 (Tex. App.-Houston [1st Dist.] 1994, no writ).
The mere declarations of a purported agent, standing alone, are not competent to establish either the existence of the purported agency or the scope or extent of the purported agent's authority. See Ferguson v. Red Arrow Freight Lines, 580 S.W.2d 84, 88 (Tex. Civ. App.-Corpus Christi 1979, no writ); 3 TEX. JUR. 3D Agency 289 (1996).