Untitled Texas Attorney General Opinion ( 1967 )

HEli RNE~CGENERAL
Q,F EXAS
suly 17 i 1967
Honorable Joe Reeweber -,
County Attorney
Harris Counts Courthouse Rei Whether the County Clerk,
Houston, Texk pursuant to Article 5569,
VeFnon’a Civil Statutes,
Is required to approve
fl!ld public Warehousemen’a
bonds, and certain other
questions relating to the
Dear Mr. Resweberr duties of the County Clerk,
You have requested the oplnlon of this office upon numerous
questions dealing with the dutiee of Oh6 Count Clerk in,connectlon
with the bonds and @&tificaDea %lit warehousemen pur-
reqtiired of pL\
suant to the provleion~ df ArttlcLe 5569, Vernon ‘8 Clyil Statutes.
The Pirat questlbn you have poaed ia set forth as follows:
“(1) Ie the Countiy Clerk aaqulred by statute
to perform the, dutieJ get oUt in the form l-etter,
a copy of which IS attached, I%i@ngdb Mr. R. T.
Williams, Dlrdtitor, ConeuNer Se*Xfce %lvikiion,
Texae Department of Agrloulture?
In connection with the foregoing questian, you have stated that
the form letter from $he Texae.DBpartment of Agriculture indicates
that the County Clerk ha@ the foIlowing duties In regard to the
bonds and certificated of public warehoueement
“(1) To aend aoplee of all certlflcatee,of
Public Warehoueemen, latiued, by the Clerk, to the
Texas Department of Agrioulturej
“(2) To notify the Texas Department of Agri-
culture of all notlficatlons received by the Clerk
that a Public Warehouseman bond has been canceled;
Hon. Joe Resweber, page 2 (~-106)
"(3) To keep on file in the Clerk’s Office all
Public Warehouseman Bonds filed therein,”
Prior to the enactment of the Uniform Commercial Code,
which became effective on June 30, 1966, the provisions of Article
5569 and Article 5661, Vernon’s Civil Statutes, set forth certain
duties and requirements In connection with bonds and certificates
of public warehousemen. Article 5661 required public warehousemen
to file a bond in the amount af $5,000.00 with the County Clerk In
the county where he Intended to do business. Article 5661 also pro-
vided ~that the County Clerk was to certify the filing of;the bond to
the Commissioner of Agriculture , and in addition, Article 5661 pro-
vided ~that the.Commlssloner of Agriculture would ~prescrlbe the form
of the bond to, be mused, and that such bond should Abe good for e nerlod
of one ‘year from the date of flllng. However, Section ‘lo-102 of
the Uniform Commercial Code repealed Article 5661, and as a result
the only statutory provisions now remaining In connection with the
bonds and certificates of public warehousemen are found In Article
5569. Such provlslons are set forth as followe:
“The owner, proprietor, lessee or’manager
: of any public warehouse, whetheran ,indlvldual,
firm or corporat%an,:-before transacting any .‘,
business in such, publla- warehouse ~!shalL procure 1,~
from the aounty alsyk of:,the ,aounty. ,ln wh$eh the ‘i :;,
warehouse or wharehouses are situated, a certificate
that he 1s transacting business as a public ware-
houseman under the laws af the State of Texas,
which certificate shall, be ls,sued by .sa,ld clerk
upon a written applkcatlon; .seftl,ng forth the
location and name of’such.warehouse or warehouses,.
and the name of, eaah ,person, :indlvidual or a
member of the firm; Interested asp owner or principal
In the management of the same, or, If the warehouse
Is owned or, managedT:by,a corporation; the name of the
president, secretary and treasurer of-such corpora-
tion shall be stated, which application shall be.
received and fl3ed by such clerk and, preserved In,
his office, and the sald certificate shall give
authority to carry on and conduct the business of
a public warehouse and shall be revocable only by
the district court of the, county In whiah the ware-
house or warehouses are situated, upon a proceeding
before the court, by written petltlon of any person,
setting forth the particular violation of the law,
and upon process, proaedure and proof, as. In other
civil cases. The person receiving a certificate, as
.
Hon. Joe Resweber, page 3 (M-106)
herein provided for P shall file with the county
clerk granting same, a bond payable to the State
of Texas, with good and sufficient surety, to be
approved by said clerk, in the penal sum of five
thousand dollars, conditioned for the faithful
performance of his duty a8 a public warehouseman,
which bond shall be filed and preserved ln the office
of such county clerk.”
After a study of the foregoing statutory provisions,
we are of the oplnlon that Article 5569 places no-duty upon the
County Clerk to send copies (of the certificates issued to public
warehousemen) to the Texas Department of Agriculture or to notify
the Texas Department of Agriculture of any notification received
by the County Clerk in connection wlth a public warehouseman’s
bond, However, we are of the oplnlon that the County Clerk Is
‘required. by Article 5.569 to flle and preserve those ,publlc ware-
houseman bonds flled~ wlth’the ‘County Clerk.
The second question you have posed’ 1s set forth as
follows:
‘(2) If the Plrat question is answered in
the negative in whole or In part, does the Commis-
sioner of:the Texas Department of Agriculture
have the authority to prescribe such duties?”
While the provisions of Article 5611, Vernon’s Civil
Statutes, and Article 5577a, Vernon’s Clvll’Statutes, give to
the Commissioner of Agriculture of the Texas Department of Agrl-
culture extension duties ,and authority inconnection with various
types of warehouse operations, we are of the opinion that such
general statutory provisions do not give the Commissioner of
Agriculture the authority to prescribe duties for the County Clerks
concerning bonds and certificates of public warehousemen over and
above those duties required of the County Clerks by virtue of
Article 5569.
However, the fact that the County Clerk has no mandatory
duty concerning bonds and certificates of public warehousemen,
other than those duties set forth In Article 5569, would not pre-
clude the County Clerk from furnishing certain information or
assistance to the Commissioner of Agriculture lf the County Clerk
so desired.
The third question you have posed 1s set forth as
follows~
- 483 -
Hon. Joe Resweber, page 4(M-106)
“(3) Is the County Clerk under a duty to
approve bonds of public warehousemen only when
such bonds are filed on a form prescribed by the
Commissioner of the Texas Department of Agrlcuiture,
and to reject such bonds filed on other forms?
Prior to the enactment of the Uniform Commercfal Code,
the provisions of Article 5661 set forth certain requirements in
connection with the bond required of public warehousemen, One
of these requirements was that the form of the bond was to be
prescribed by the Commissioner of Agriculture, However 1 the
Uniform Commercial Code repealed Article 5661, and there no longer
exists the requirement that the Commissioner of Agriculture pres-
crlbe the form of the warehouseman bond to be filed with the County
Clerk.
In view of the foregoing, we are of the opinion that the
County Clerk may approve any bond filed by a public warehouseman,
regardless of whether or not It is on a form prescribed by the
Commissioner, If such bond meets the requirements set forth In
Article 5569.
The fourth question you have posed is set forth as
followsl
“(4) Does either of the bond forms prescrzlbed
by the Commfssfoner of the Texas Department af Agri-
cu.lture$ copies attached 9 comply with the statutory
requirements?”
As concerns the bond to be filed by public warehousemen
with the County Clerk, Article 5569 provfdes In part that:
I, .a bond payable to the State of Texas>
with good and sufficient surety3 to be approved
by said clerks in the penal sum of five thousand
dollars, conditioned for the fait.hful perfo;mance
of his duty as a public warehouseman, y y I
Both the bond form prescribed by the Commissioner of
Agriculture prior to June 30, 1966, and the bond form prescribed
by the Commissioner of Agriculture after June 30, 1966, specify
that the bond is payable to the State of Texas in the sum of five
thousand dollars and conditioned upon the ffler of such bond
faithfully performing his duty as a public warehouseman. In
these respects> we are of the opinion that each of the bonds
comply wfth the statutory requirements of Artiicle 5569”
- 484 -
Hon. Joe Resweber, page 5 (M-l06),
However, the bond form prescribed p$ior to June 30,
1966, contains the additional__ condition
- that . . .the
_ same iz to
remain in full force ana ersect for one year from date. . . ;’ and
the bond form pzescrlbed after June 30, 1966, contains the additional
condition that e D .the same is to remain In full force and effect
until notification of cancellation or notice of failure to renew is
received by the Ttxas Department of Agriculture from the Clerk of
the County Court.
We are of the opinion that the bond form prescribed prior
to June 30, 1966, met the statutory requirements In its use prior
to June 30, 1966, for the reason that prior to June 30, 1966, Article
5661 provided for a one (1) year bond. However, we are of the further
opinion that after the repeal of Article 5661, which was effective
on June 30, 1966, the bond form prescribed prior to June 30, 1966,
would no longer comply with the statutory requirements, as Article
5569 does not provide for a time limitation upon the bond. Con-
sequently, the bond form prescribed by the Commissioner of Agri-
culture prior to June 30, 1966, would not meet the statutory re-
quirements of Article 5569 if used after June 30, 1966.
As to the bond form prescribed by the Commissioner of
Agrlaulture for use after June 30, 1966, we are of the opinion
that the provision in such bond form, that the bond was to stay
in full force and effect until notification of cancellation or
notice of failure to renew we- receSved by the Texas Department of
Agriculture Contains a condition not provided in the statute.
Furthermore, such a superadded condition which the statute
does not require and which would limit or avold or measure liability
by the giving or receipt of notice Is withouteffect and would be
invalid. United States Fidelity Co. v. Poetker, 180 Ind. 255, 102
N.E. 372 (1 1 w t C & Guaranty Ins s do. v. Board of
Commissione~s~)&O ~~1??14~~‘15p P. 655 (lglb) * In the latter case,
In which a notice requirement was placed In a statutory bond and
not provided for in the statute, the Court said:
“Here the statute fixes the conditions of
the deposZtory bond e y .The Board has no authority
to waive any part of the statute nor add anything
to Ii;. The bond In controversy, as executed, con-
tains all the conditions required by the statute,
with the addition of a condition requiring notice,
which tends to modify the statute and to limit
the liability, This additfonal condition, we think,
may not be imposed,” (159 P. 659)
- 485 -
Hon. Joe Resweber, page 6 (w-106)
The fifth question you have posed is set forth as
follows:
“(5) Does the form of application for cer-
tificate of public warehouseman, a copy of which
Is attached, comely with the requirements of Article
5569, V.A.C.S.7”~
Article 5569 provides in part that:
n
.rhlah certlflcate shall be issued by
said clerk upon a written appllcatlon, setting
forth the looatlcn and name of such warehouse or
warehouses, and the name of each pergon, Individual
or a member of the firm, Interested as owner or
principal in the management of the same, or, If
the warehouse is owned-or managed by a corporation,
the n+uneof the president , secretary and t;easurer
of such carporation shall be stated. , , ,
After a study of the application form attached, which
was prescribed by the Texas Department of Agriculture, we are of
the opinion that it complies with the requirements of Article
5569, as 8UOh application form pravides for the setting forth of
the lnformatlon required by Art1al.e 5569.
The sixth and seventh questions you have posed are set
forth as follows:
“(6) Does the County Clerk have any duty
with respect to an application for public ware-
houseman,. tendered to him, other than the filing
of same?”
“(7) Does the County Clerk have any duty
with respect to the bond submitted with the ap-
plication mentioned in (6) above, other than the
approval and filing of such bond? N
After a study of the provlslons of Article 5569, we are
of the oplnlon that a County Clerk has the duty, prior to issuing
a certificate to a public warehouseman, to ascertain whether the
application for such certificate contains t.he Information required
to be set forth in the application by Article 5569. In addition,
the County Clerk should examine the bond filed with the application
to ascertain whether it complies with the requirements set forth In
Article 5569. If both the application for certificate and the bond
meet the requirements of Article 5569, then the County Clerk is re-
quired to Issue a certificate to the public warehouseman, The bond
- 486 -
-. .
Hon. Joe Resweber, page 7 (,M.+l.C$)
and the application for the certiffcate are required to be filed
by the County Clerk, and In addition , such bond and application
are to be preserved In the office of the County Clerk.
SUMMARY
The County Clerk has no statutory, duty, pur-
suant to Article 5569, to send copies of certificates
Issued to public warehousemen to the Texas Depart-
ment of Agriculture or to notify the Texas Depart-
ment of Agriculture of any notiflcatlons,the County
Clerk has received concerning a public warehouseman’s
bond.
The Commissioner of Agriculture has no authority,
to prescribe duties for County Clerks concerning
bonds and certificates of public warehousemen over
and above those duties set forth In Article 5569.
The County Clerk may approve any bond flied
by a public warehouseman so long as such bond meet,s
the requirements of Article 5569. Such bonds do
not have to be in the form prescribed by the Com-
missioner of Agriculture.
Neither of the bond forms submitted presently
comply with Article 5569.
The application for certificate f,or public
warehousemen prescribed by the Commissioner of
Agriculture complles~wlth the provlslons of
Article 5569.
A County Clerk has the d.uty, prior to Issuing
a certificate to a public warehouseman, to ascertain
whether the application for such certificate and
the bond filed with such application meets the re-
quirements of Article 5569. The County Clerk also
has the duty to fl.le and preserve the applications
and bonds filed with him by public warehousemen.
V&truly yours,
Prepared by Pat Bailey
Assistant Attorney Qeneral
- 487 -
.- -
Hon. Jae Reaweber, pae;e 8 (M&6)
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
John Fainter
Howard Fender
Dyer Moore, Jr.
John Reeves
STAFF LEGALA$SXBTANT
A, J, Carubbl, Jr.