TEZE AVTORNEY GENERAL 

OF mXAS 

November 1,190 

Honorable Joe Resweber 

County Attorney 

Harris County Courthouse 

Houston, Texas 17002 

Dear Mr. Resweber: 

Ophrion No. M-l 54 

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 have requested an opinion from this office regarding the following questions: 

“1. Is the County Tax Assessor and 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), governing the questions are as follows: 

“Section 1. that the term ‘going out of. business sale’ shall mean any 

offer to sell to the public or sale to the public of goods, wares and merchandise 

on the implied or direct representation by word of mouth or written or oral 

idvertiaing that such safe kin anticipation of the termination of a busfness at: 

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 assessor and 

collector of taxes of the cify or county, which hav furisdfction of his 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, 

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Honorable Joe Resweber, page 2, M-154 

wares or 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 

salo is to bo held. 

(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 sale in his own name, or such 

information in tho form of a copy of an itemized and doscriptive bill of sale from the oWner of the defunct business 

sold to any other person conducting the liquidation salo to be 

sold at such sale. Upon receipt thereof by the assessor and 

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 shall upon the receipt thereof and a renewal 

fee of 52 issue a renewal permit for 120 days; provided however, that at tho expiration of the 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 has been raised. 

kticle III, Section 35 is as follows: 

“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 

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honorable Joe Resweber, page 3, M-l 54 

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, as follows: 

“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 

tho following: 

“But it would, be useless and 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 moro repetition of the legislation itself, and would answer no purpose of abbreviated 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.Zd 676 (Tox.Civ.App., 1958, error 

ref.). 

The caption meets the test of constitutionality set out in Stone v. Brown, 54 Tex. 330; 

at page 334, wherein the Court stated: 

“None of tho provisions of a statute should be regarded as unconstitutional 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 ~10s promulgated by our courts, the caption of House Bill No. 2 14 

(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” is not 

Specifitiy mentioned, “sales” is clearly germane, incidktal to, and relevsnt to the subject of 

%ing out of business”. 

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Honorable Joe Resweber, page 4, M-l 54 

In response to Question No. 1, it is the opinion of this office that the facts furnished are 

insuftkient to determine whether the owner has advertised he is going out of business in such a 

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 assessor collector would not be required to accept 

sworn itemized inventories and issue permits as provided in Article 1137q. If the owner:& merely 

closing out a store at a particular location and advertises such 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 given location and in connection therewith is conducting a “going out of business sale,” the city or county 

tax asaessor~ollector, whichever has jursidiction, is required 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 of the 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 language throughout the statute pw 

vidcs that the owner can fde the statement with the county or city tax assessorcollector, whichever has jurisdiction. 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 

Petroleum Corp.. 135 Tex. 12, 137 S.W.2d 753 (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 

given its ordinary, rather than a conjunctive meaning.” 

Should the owner in such situation select the county tax assessor-collector, that officer will be 

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 is not 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 has juris- 

. . , . . . . . . 
. 

Honorable Joe Resweber. page 5, M-l 54 

provided by Article 1137q, Vernon’s Penal Code. The word “defunct” as used 

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 Assessor and Collector ls required to accept same. 

vT truly yours, 

‘~* 

m7= 

FOR C. MARTIN 

At ey General of Texas 

Prepared by Terry Reed Goodman 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns B. Taylor, Co-Ch+m~an 

w. v. Geppert 

Robert Owen 

Ralph Rash 

James McCoy 

STAFF LEGAL ASSISTANT 

A J. Cambbi, Jr. 

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