# The Attorney General ofTexas September 14, 1978 JOHN L.HILL Attorney General
Honorable Henry Wade District Attorney Sixth Floor, Records Building Dallas, Texas 75202 Opinion No.H-1243 Re: Whether the county clerk is required to mail notice required by section 36.13(e) of the Business and Commerce Code when the commissioners court has declined to appropriate money for that purpose. Dear Mr.Wade: Youhave requested our opinion regarding the duty of the county clerk to mail the notice required by section 36.13(e)ofthe Business and Commerce Code. That statute provides:

The county clerk ofeach county shall notify inwriting each person that has conducted a business under an assumed name and for which an assumed name certificate has been filed in the office of that clerk pursuant to Articles 5924 and 5924.1, Revised Civil Statutes of Texas, 1925,prior to the effective date of this chapter, that under the provisions of Subsection Cd)ofthis section the certificate shall become null and void after December 31,1976,unless anew certificate is filed that complies with the provisions of this chapter. The written notice shall be effective by being deposited with the United States Postal Service, addressed to the name of the busmess at the office address given inthe certificate aslast filed. (Emphasis added). Section 36.13(e) clearly requires the county clerk to provide a mailed written notice to each assumed name certificate holder, the number of which you estimate to be 140,000. You state that the clerk has requested an additional appropriation of $22,100 to cover expenditures required by the statute, of which $14,100represents the cost ofpostage, but

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that the Commissioners Court of Dallas County has declined to make any funds available for this purpose. Youask whether, inthese circumstances, the clerk must comply with the statutory requirement. Section 36.13(e)directs the clerk, in absolute terms, to furnish the requisite notice. InAttorney General Opinion H-595 (19751,we held that, where a statute requires the sheriff to “execute all process,” an “inadequate operating budget will not excuse [his] failure to execute process directed to him.” In our opinion, this principle is equally applicable to your inquiry. The clerk cannot be relieved ofhis duty under the statute merely because hisbudget islimited. On the other hand, we believe it is the duty of the commissioners court to provide adequate funding to enable a county officer to carry out a statutory directive. In Attorney General Opinion H-499 (19751,weheld that acommissioners court is “under a duty to budget and order paid the amount of any reasonable attorney’s fees properly set by acriminal court judge pursuant to article 26.05” of the Code of Criminal Procedure. In Attorney General Opinion H-544 (19751,a commissioners court refused to pay the expenses of a court of inquiry. Wesaid that adistrict judge having statutory authority to conduct a court of inquiry may obligate acounty topay anyreasonable expenses related thereto. Since the clerk ishimself without authority to incur any expense onbehalf of the.county without the approval of the commissioners court, we believe that his alternative is to seek judicial relief, inthe form ofmandamus seeking to direct the commissioners court to appropriate funds for fulfilling the statutory requirement. InCommissioners Court of Hays County v. District Judge, 22dJudicial Dist., 506 S.W.%d630(Tex. Civ. App. - Austin 1974,writ rePd n.r.e.1, a statute authorized a district judge to fix the salaries of probation officers, who were then to be paid from county funds. When the commissioners court refused to provide the full amount requested, the judge sought, by mandamus, to compel it to appropriate the specified sum. The trial court’s order granting mandamus was upheld by the appellate court. You also ask about the liability of the county clerk for noncompliance with the terms of section 36.13(e). Although the Business and Commerce Code imposes no liability on the clerk for failure to comply, such omission might constitute an offense under section 39.01of the Penal Code. In addition, the clerk might be liable to apotential recipient ofthe statutory notice whowasinjured bythe clerk’s omission. Whether civil or criminal liability would arise inany particular instance of coume requires adetermination offacts which are not before us. SUMMARY Acounty clerk has a duty to provide mailed written notice to all assumed name certificate holders under section 36.13(e) of the Business and Commerce Code, and he is not p. 4947I

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relieved of this duty because ofbudget limitations. Itisthe duty of the commissioners court to furnish the clerk with funds sufficient to carry out hi responsibilities under the statute.

APPROVED:

Opinion Committee jsn

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