The Attorney General of Texas 

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: 

You have requested our opinion regarding the duty of the county clerk 

to mail the notice required by section 36.13(e) of the Business and Commerce 

Code. That statute provides: 

The county clerk of each county shall notify in writing 

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) of this section the certificate shall become null and 

void after December 31, 1976, unless a new 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 in the certificate as last 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 $14,100 represents the cost of postage, but 

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Honorable Henry Wade - Page2 (H-1243) 

that the Commissioners Court of Dallas County has declined to make any funds 

available for this purpose. You ask whether, in these circumstances, the clerk must 

comply with the statutory requirement. 

Section 36.13(e) directs the clerk, in absolute terms, to furnish the requisite 

notice. In Attorney 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 of his 

duty under the statute merely because his budget is limited. 

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, we held that a commissioners 

court is “under a duty to budget and order paid the amount of any reasonable 

attorney’s fees properly set by a criminal 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. We said 

that a district judge having statutory authority to conduct a court of inquiry may 

obligate a county to pay any reasonable expenses related thereto. 

Since the clerk is himself without authority to incur any expense on behalf of 

the. county without the approval of the commissioners court, we believe that his 

alternative is to seek judicial relief, in the form of mandamus seeking to direct the 

commissioners court to appropriate funds for fulfilling the statutory requirement. 

In Commissioners Court of Hays County v. District Judge, 22d Judicial Dist., 506 

S.W.%d 630 (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 39.01 of the Penal Code. In addition, the clerk might be 

liable to a potential recipient of the statutory notice who was injured by the clerk’s 

omission. Whether civil or criminal liability would arise in any particular instance 

of coume requires a determination of facts which are not before us. 

SUMMARY 

A county 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 

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Honorable Henry Wade - Page3 (H-1243) 

relieved of this duty because of budget limitations. It is the 

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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