Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
Sl:ptember25, 1985
JIM MATTOX
AttorneyGeneral
Supreme
Court
Building
Eooorablc Mike Dr:Lscoll Opinion No. ~~-357
P. 0. BOX 1254S Rarrls County Attorney
Austin, TX. 78711. 2548 1001 Preston, Suite 634 Re: County clerk's duties pursuant
512i4752501 Houston. Texas YiOO2 to Rouse Bill No. 385, 69th Legisla-
Telex 910/874-1367
Telecopier 51214750286
ture, 1985. codified as Business and
Commerce Code, sections 17.81 through
17.93, which regulates going-out-of-
714 Jackson, Suite 700 business sales
Dallas. TX. 75202.4506
214/742-6944
Dear Mr. Driscoll:
4824 Alberta Ave., Suite 180 You ask several questions about a county clerk's duties under a
El Paso. TX. 799052793 recent law that regulates going-out-of-business sales. E.B. No. 385,
915/53334s4 Acts 1985, 69th Lhl:., ch. 172, at 920 (to be codified as Bus. & Coarm.
Code, 1517.81 through 17.93). Under the new law anyone who represents
1001 Texas, Suite 7M)
that a sale is in anticipation of the termination of a business must
Houston. TX. 77002.3111 file various inventories and obtain a permit in order to conduct the
71312235886 sale. A person who intends to couduct such a sale must first file an
original inventory with the county clerk of the applicable county.
Id. 117.83. The filing fee for the original inventory is $20. Id.
806 Broadway, Suite 312
Lubbock. TX. 79401.3479
After the original inventory is filed, the clerk must issue a sale
8061747.5238 permit. Id. 517 $84. For each 30-day period during the sale the
permit-holder musi:file a sale inventory, and within 30 days after the
end of the sale, he must file a final inventory. -Id. 0117.86, 17.87.
4309 N. Tenth. Suite S
McAllen. TX. 78501-1685
512/682-4547
In your requezst letter and in subsequent correspondence you ask
the following questions regarding Eouse Bill No. 385: (1) what
information should be included in the permit issued by the county
200 Main Plaza. Suite 400 clerk; (2) may the county clerk charge a fee each time an inventory is
San Antonio, TX. 782052797
filed as well as s fee for issuance of the permit; (3) how long must
512/2254191
the county clerk re:tainthe inventories and where should they be kept.
An Equal OpportUnitYI Eouse Bill NIJ. 385 contains the following language in regard to
Affirmative Action Employer the petit to be is,suedby the county clerk:
(a) A.ftcrreceiving an original inventory, the
county clerk shall issue to the applicant a permit
for a gxlng out of business sale. The permit is
valid fclr120 days after the day that it is issued
and is r:atrenewable.
p. 1632
Aonorable Hike Driscoll - Page 2 (JM-357 )
(b) The permit holder must post the permit in
a conspicuous pla,:e at the location of the going
out of business ss,le.
(c) Before advertising a going out of business
sale, the permit holder shall deliver a copy of
the permit to the person publishing or broad-
casting the adverl:isement.
Id. 517.84. The legislature did not specify the form or the content
ofthe permit, but it obviously intended that someone who sees a
permit should realize that the person conducting the sale is subject
to a law that regulates go:.ng-out-of-businesssales. In order to be
useful, then, the permit should contain at least the following
information: the name and address of the person to whom it was issued,
the location of the sale, t'xedate on which the permit was issued and
the date on which the permit expires, the fact that the permit is not
renewable, and the fact that the sale is governed by House Bill No.
385. A county clerk may exercise some discretion in designing the
permits. In doing so, however, he should bear in mind the purpose of
the permit.
The original invento,ry filed with a county clerk must be
accompanied by a $20 filing !:ee. Although Bouse Bill No. 385 requires
the filing of subsequent irventories with the county clerk and the
issuance of a permit by the county clerk, it does not set any other
fees to be charged by the county clerk. You suggest that the $20 fee
is for the filing of the c~riginal inventory only and that a clerk's
authority to charge addit::onal fees for the permit and subsequent
inventories is to be found in article 3930(10). V.T.C.S., which
authorizes and requires county clerks to charge reasonable fees for
"such other duties prescribed, authorized, and/or permitted by the
Legislature for which no fee is set by this Act."
First, it is important to note that although article 3930(10)
allows a clerk to charge r'sasonablefees for duties for which no fee
is set "by this Act," that language does not permit a clerk to ignore
fees set by other statutes. Rather, when another statute sets a fee
to be charged for a service rendered by a county clerk, the fee set is
a legislative determination of what is a reasonable fee for the
services rendered. A clerk may not disregard that determination. -See
Attorney General Opinion MU-452 (1982).
IU our opinion the legislature intended the $20 fee paid at the
time the original inventory is filed to cover all the services
rendered by the clerk contemplated by Bouse Bill NO. 385. The fact
alone that the statute makes no mention of any fee other than the $20
fee to be collected the first time the clerk renders any service to an
applicant suggests that the legislature intended the $20 fee to be the
only fee for services renifzredby a county clerk pursuant to Douse
p. 1633
t
Honorable Mike Driscoll - Page 3 (JM-357)
Bill No. 385. Also, the amount of the fee set in Rouse Bill No. 385,
by comparison to the filing:fee iu the prior statute OP the subject,
indicates that the 1egislal:ureintended it to be the only fee. The
prior law governing going-aut-of-business sales required an applicant
to file an inventory "togethterwith a filing fee of $2" with the city
or county tax assessor or collector in order to obtain a sale permit.
At the expiration of 120 dars the permit-holder could obtain a renewal
permit by filing another inventory and paying a "renewal fee" of two
dollars. Acts 1967, 60th Leg., ch. 434, at 1004 (codified at art.
9011, V.T.C.S.; repealed by H.B. No. 385). The prior law required
neither sales inventories nor a final inventory. Under that law each
$2 fee was a charge for the filing of one inventory and the issuance
of one permit. The increase in the filing fee from $2 for filing one
inventory and the issuance of one permit by a tar assessor under the
prior law to $20 for sim1l.a.r but expanded service by county clerks
under the new law indicates that the legislature took into account the
numerous filings required under the new law and the burden those
filings would place on counl:yclerks aad that the $20 fee was intended
to cover all services rendered by a clerk pursuant to Rouse Bill No.
385. This one-time fee is analagous to the initial fee paid to cover
various services rendered b.r the clerk in court uroceedinas. See.
a, V.T.C.S. art. 3930(.,ji(B)(l)(a)(i)(setting~initial feesfor
various probate matters); ---
888salso Rodeheaver v. Aldridge, 601 S.W.2d
51, 54, (Tex. Civ. App. -' Houston [lst Dist.] 1980, writ ref'd
n.r.e.). "Thus, the statutory fee is, in effect, an advance payment
for the cost of services which have not been rendered at the time the
fee is collected." Id. 'Furthermore, fee statutes are strictly
construed, and fees are not permitted by implication." Attorney
General Opinion SW-346 (1981i)'(see
- cases cited therein).
Finally you ask how loag the county clerk must retain the iaven-
tories and where the inventories should be kept. House Bill No. 385
makes no provision for the destruction or return of the inventories.
Cf. Bus. 6 Comm. Code 536.14. (provides for the withdrawal of assumed
Ge certificates from the :cecordsof the county clerk). Thus, the
county clerk must retain the: inventories unless they are microfilmed
in accordance with article :.941(a),V.T.C.S.
From our correspondenc,ewith you we understand that you are
referring to the seven clane,esof records set out in article 1941(a)
when you ask where the inven,toriesmust be kept. The decision to put
public records on microfilr in accordance with article 1941(a) is in
the sole discretion of the county clerk. If a clerk chooses to do so,
however, he must organize the records according to the seven classes
listed in article 1941(a), section 2(b). Because inventories filed
pursuant to Eouse Bill No. 385 do not fit into any of the other
classes listed, they should be recorded in the class for miscellaneous
records, which is known as "Official Public Records of Governmental,
Business and Personal Matte%." V.T.C.S. art. 1941(a), 52(b)(7).
p. 1634
Bonorable Mike Driscoll - Page 4 (JM-357)
SUMMARY
The legislatwe did not prescribe a specific
form for the pernit to be issued pursuant to Rouse
Bill No. 385. The form of the permit should make
clear that a pc:rson conducting a going-out-of-
business sale is subject to Eouse Bill No. 385.
The $20 fee covers all services of the clerk
required by House!Bill No. 385. The county clerk
must retain thlt inventories unless they are
microfilmed in rtccordance with article 1941(a),
V.T.C.S. If the i,nventoriesare microfilmed. they
should be put in the class for miscellaneous
records. V.T.C.S. art. 1941(a), 02(b)(7).
Attorney General of Texas
TOM GREEN
First Assistant Attorney Goneral
DAVID R. RICBARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICE GILPIN
Chairman, Opinion Comnitte~!
Prepared by Sarah Woelk
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk
p. 1635