## TEZE AVTORNEY GENERAL OF mXAS

November 1,190
Honorable Joe Resweber County Attorney HarrisCounty Courthouse Houston, Texas 17002

DearMr.Resweber: Ophrion No.M-l54 Re: Whether the County Tax AssessorCollecror is required under the provisions of H.B. No. 214, Acts 60th Leg,(Art. 113?q, V.P.C) to accept sworn itemixed inventories and issue permits where a business is not defunct, but is merely closing a store at one particular location, and related question. You haverequested an opinion from this office regarding the following questions:

“1. Is the County Tax Assessorand Collector required to accept sworn itemized inventories and issue permits where a business is not defunct, but is merely closing a store at one particular location? “2. Is the County Tax Assessor and Collector required to accept a sworn itemized statement from a business rolating to a store which is located within the County, but which is also located within the territorial boundaries of an incorporated town or oity?” The applicable provisions of the statute, House Bill No. 214, Acts 60th Legislature (Article 1137q, Vernon’s Penal Code), governingthe questions are asfollows:

“Section 1. that the term ‘going out of.business sale’ shall mean any offer to sell to the public or saleto the public of goods, wares and merchandise on the implied or direct representation by word of mouth or written or oral idvertiaing that such safekin anticipation of the termination of a busfnessat: its present location. / 4‘

. . .

“Sec. 3. To conduct a ‘going out of business sale,’any person. firm, or corporation shall file a sworn itemized inventory with the assessorand collector of taxes of the cify or county, which havfurisdfctionofhis location, togother with a filing fee of $2. Said sworn inventory shall include the following: (1) Name and address of the owner of the goods, -715- -Honorable Joe Resweber, page 2, M-154

waresor merchandise to be sold. (2) The name and address of the ownor of the de funct business, the former stock in trade of which is to be offered for sale, and tho full name of such defunct business. (3) A description of the place where the liquidation saloisto boheld. (4) The commencement and termination date of the liquidation sale. (5) A complete and detailed Inventory of the goods, wares, and merchandise to be offered at the liquidation sale if the owner is conducting said salein his own name, or such information in tho form of a copy of an itemized and doscriptive bill of sale from the oWnerof the defunct business sold to any other person conducting the liquidation saloto be sold at such sale. Upon receipt thereof by the assessorand collector of tares of the cfry or counry, the applicant should be issued a permit for ‘going out of business’ sale; for 120 days. If at the expiration of the 120 days of the original permit the applicant has not terminated his business, he shall fde with the assessor and collector of taxer of the city or county an Inventory reflecting the remaining merchandise which shall include the information as stated in the original application and the messor and collector of taxes of the city or county shallupon the receipt thereof and a renewal fee of 52 issue a renewal permit for 120days; provided however, that at tho expiration ofthe fust permit and any subsequent renewal an amended inventory stating any additional items, not included in the original inventory initially filed, which have been offered for sale shall be filed with the authority which received the initial inventory.” (Emphasis added) In an additional memorandum, the question concerning whether the captionviolatr Article 3, Section 35 of the Texas Constitution hasbeen raised. kticle III, Section 35 is asfollows: “No bill, (except general appropriation bills, which may embrace the various aubjoctr and accounts, for and on account of which moneys are appropriated) shall contain more than ono subject, which shall be expressed in -716.honorableJoe Resweber, page 3, M-l54

its title. But if any subject shall bo embraced in an act, which shall not be oxpressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.” The caption of House Bill No. 214,6Oth LegMature, Regular Session 1967, chapter 434, page 1003, (Article 1137q, Vemon’s Penal Code), reads, in part, asfollows:

“An Act regulating the ‘Going.Out of Business’;providing a penalty for violation; providing for sevonbility; and declaring an emergency.” In Consolidated Underwriters v. Kirby Lumber Co., a Commission of Appo@ case, 267 S.W.703, approved and adopted by tho Supreme Court, 1924, the Court stated at page 105 thofollowing: “But it would, be uselessand impracticable for tho title to express all of the provisions of a particular act and the dotails of each provision. For, in such a case, this introductory matter would amount to a mororepetition of the legislation itself, and would answer no purpose ofabbreviated notice.

“h a result, doubtless, of these and othor practicable difficulties, while constitutional provisiona regarding the expression of the subjectmatter in the title of bii have always been held mandatory, still they’have been interpreted liberally and substantially and not strictly or literally. Murphy v. Menard, 11 Tex. 673; Austfon v. G.,C. & SF.RR.Co., 45 Tex. 267;Breen v. T.&P.R.R.Co.. 44 Tox. 305..
.” Accord, Continental @s System v. Ckmey, 310 S.W.Zd676 (Tox.Civ.App., 1958, error ref.). The caption meets the test of constitutionality set out in Stone v. Brown, 54 Tex. 330; atpage334, wherein the Court stated:

“None of tho provisions of a statute should be regarded asunconstitutional where they relate, directly or indiit!y. to the same subject, have a mu&l connection, and are not foreign to the subject expressed in the title.” Therefore, under the ~10spromulgated by our courts, the caption of House BillNo. 214 (Article 1137q, Vernon’s Penal Code) does not contravene Article 3, Section 35, Constitution of Texas. The subject of the bilkis “going out of business” and despite the fact that “sales” isnot Specifitiy mentioned, “sales” is clearly germane, incidktal to, and relevsnt to the subject of %ing out of business”
. -717-Honorable Joe Resweber,page4, M-l54

In response to Question No. 1, it is the opinion ofthis office that the facts furnished are insuftkient to determine whether the owner has advertised he is going out of businessin sucha manner as to come within the scope of the new act. In the event that the owner is merely closing out a store without advertising pursuant to Article 1137q, the owner would not be subjeot to the Act, and, therefore, the county or city tax assessorcollector would not be required to accept sworn itemized inventories and issuepermits asprovided in Article 1137q. Ifthe owner:&merely closing out a store at a particular location and advertisessuch fact pursuant to Article 1137q,he would be subject to that Act and must comply with the provisions thereof. In all cases where a business is being terminated or becoming “defunct” at a givenlocation and in connection therewith isconducting a “going out of businesssale,” the city or county tax asaessor~ollector, whichever hasjursidiction, isrequired to accept sworn itemized inventories and issue permits, as provided by Article 1137q, Vernon’s Penal Code. In our opinion, the word
“dotknct,” as used by the Legislature, in view ofthe definition of a “going out of businesssale,” contemplates the termination of a business at a given location and even if the business of the owner continues to operate at other locations. In response to Question No. 2, WC observo that the languagethroughout the statute pw vidcs that the owner can fde the statement with the county or city tax assessorcollector, whichever hasjurisdiction. Inasmuch as the Legislature used the word “or,” it would appear that the owner has an election, when there is a county tax assessorcollector and a city tax assessorcollector,. to file the sworn list with either. In the case of Shell Petroleum Corp. v. Royal PetroleumCorp.. 135Tex. 12, 137S.W.2d753 (1940), it is stated at page 758:

“In its ordinary use the term ‘or’ is disjunctive, and alternative in its effect. See the analogous cases of Oxsheer v. Watt,91 Tex. 402, 44 S.W.67. Unless there is some impelling reason apparent in the context, it should be givenits ordinary, rather than a conjunctive meaning.” Should the owner in such situation select the county tax assessor-collector, that officer willbe required to accept the list. Therefore, it is the opinion of this office that the answer to Question No. 2 is yes. SUMMARY

Tho caption of House Bill No. 214, 60th Le.gislature(Article 1137q, Vernon’s Penal Code) does not contravene Article III, Section 35, Constitution of Texas, and the statute isnot unconstitutional on that ground. Whenever a business is being terminated or becoming “defunct” at a given location and in connection therewith is conducting a “going out of business sale,” the city or county tax assessorcollector, whichever hasjuris-

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Honorable Joe Resweber. page 5, M-l54
provided by Article 1137q, Vernon’s Penal Code. The word “defunct” asused by the Legislature, ln view of the deftition of a “going out of business sale” contemplates the terrninatlon of a business at a given location and even if the business of the owner continuter to operate at other locations. If the owner tknlshes a sworn itemized statement to the County Tax Assessor-Collector, relating to a store which is located within a county, and also within the terrltorlal ‘boundaries of an incorporated town or city, the County Tax Assessorand Collector lsrequired to accept same. vT truly yours,

‘~* m7=

FOR C.MARTIN At ey General of Texas Preparedby Terry Reed Goodman Assistant Attorney General APPROVED: OPINIONCOMMITTEE Hawthorne Phillips, Chairman Kerns B.Taylor, Co-Ch+m~an w.v. Geppert Robert Owen Ralph Rash JamesMcCoy STAFFLEGAL ASSISTANT A J. Cambbi, Jr.

-719.