HEli RNE~CGENERAL 

Q,F EXAS 

suly 17 i 1967 

Honorable Joe Reeweber 

Houston, Texk 

County Attorney 

Harris Counts Courthouse 

-, 

Rei Whether the County Clerk, 

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 

questions dealing with the dutiee of Oh6 

of this office upon numerous 

Count 

% 

Clerk in,connectlon 

with the bonds and @&tificaDea reqtiired 

suant to the provleion~ df ArttlcLe 5569, 

of pL\ lit warehousemen purVernon ‘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@ngd b 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 Agriculture 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 provided ~that the County Clerk was to certify the filing of;the bond to 

the Commissioner of Agriculture , and in addition, Article 5661 provided ~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the Uniform Commercial Code repealed Article 5661, and as a result 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 warehouseman 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 corporation 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 warehouse 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 warehouseman 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 Commissioner 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 Agrlculture 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 preclude 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 prescrlbe 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 Agricu.lture$ copies attached 9 

requirements?” 

comply with the statutory 

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, 

1966, contains the 

the bond form prescribed p$ior to June 30, 

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. Consequently, the bond form prescribed by the Commissioner of Agriculture prior to June 30, 1966, would not meet the statutory requirements 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, contains 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 

follows: 

posed is set forth as 

“(5) Does the form of application for certificate 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+une of 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 warehouseman,. 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 application 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 required 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, pursuant to Article 5569, to send copies of certificates 

Issued to public warehousemen to the Texas Department of Agriculture or to notify the Texas Department 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 Commissioner 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 requirements 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 LEGAL A$SXBTANT 

A, J, Carubbl, Jr.