### HEli RNE~CGENERAL Q,F EXAS

suly 

### 17i 

### 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 duties of the County Clerk, Dear Mr. Resweberr

Youhave requested the oplnlon questions dealing with the dutiee of Oh6of 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, ConeuNerSe*Xfce %lvikiion, Texae Department of Agrloulture? In connection with the foregoing questian, you have stated that the form letter from $heTexae.DBpartment of Agriculture indicates that the County Clerk ha@the foIlowing duties In regard to the bonds and certificated of public warehoueement

“(1) Toaend 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 Warehousemanbond has been canceled;Hon. Joe Resweber, page 2 (~-106)



### "(3) To keep on file in the Clerk’s Office all Public WarehousemanBonds filed therein,” Prior to the enactment of the Uniform Commercial Code, which became effective on June 30, 1966, the provisions of Article 

### 5569 andArticle 

### 5661,Vernon’s Civil Statutes, set forth certain duties andrequirements In connection with bonds and certificates of public warehousemen. Article 

### 5661required public warehousemen to file abond in the amountaf $5,000.00 with the County Clerk In the county where he Intended to do business. Article 

### 5661also provided ~that the County Clerk was to certify the filing of;the bond to the Commissioner of Agriculture , and in addition, Article 

### 5661provided ~that the.Commlssloner of Agriculture would~prescrlbe the form of the bond to, bemused,andthat such bond should Abegood for e nerlod of one‘year from the date of flllng. However, Section ‘lo-102 of the Uniform Commercial Coderepealed Article 5661, and as aresult the only statutory provisions nowremaining 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 anypublic warehouse, whetheran ,indlvldual, firm 

### or corporat%an,:-before transacting any
.‘, business in such,publla- warehouse~!shalLprocure 1,~ from the aounty alsyk of:,the ,aounty.,ln wh$ehthe ‘i :;, warehouse or wharehouses are situated, a certificate that he 1s transacting business as a public warehousemanunder the laws af the State of Texas, which certificate shall, be ls,sued by.sa,ld clerk upon awritten applkcatlon; .seftl,ng forth the location andnameof ’such.warehouse or warehouses,. andthe nameof, eaah,person, :indlvidual or a memberof the firm; Interested aspowner or principal In the managementof the same, or, If the warehouse Is ownedor,managedT:by ,a corporation; thename of the president, secretary andtreasurer of-such corporation shall be stated, which application shall be. received andfl3ed by such clerk and,preserved In, his office, andthe 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 anyperson, setting forth the particular violation of the law, andupon process, proaedure andproof, as.In other civil cases. Theperson receiving a certificate, as.

Hon. Joe Resweber, page 

### 3(M-106)

herein provided forPshall 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 sumof five thousand dollars, conditioned for the faithful performance of his duty a8 apublic warehouseman, which bond shall be filed andpreserved ln the office of such county clerk.” After a study of the foregoing statutory provisions, weare 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, weare of the oplnlon that the County Clerk Is

‘required. by Article 5.569to flle and preserve those ,publlc warehousemanbonds flled~ wlth’the ‘CountyClerk.

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, andArticle 5577a, Vernon’s Clvll’Statutes, give to the Commissioner of Agriculture of the Texas Department of Agrlculture extension duties ,andauthority inconnection with various types of warehouse operations, weare 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 nomandatory 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.Thethird 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, andto reject such bonds filed on other forms? Prior to the enactment of the Uniform Commercfal Code, the provisions of Article 

### 5661set 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, However1the Uniform Commercial Coderepealed Article 

### 5661,andthere no longer exists the requirement that the Commissioner of Agriculture prescrlbe the form of the warehousemanbond to be filed with the County Clerk. In view of the foregoing, weare of the opinion that the County Clerk mayapprove anybond 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 

### 5569provfdes 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 sumof 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,andthe 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 sumof five thousand dollars and conditioned upon the ffler of such bond faithfully performing his duty as a public warehouseman. In these respects> weare 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 sameiz 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 sameis 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.

Weare 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 

### 5661provided for a one (1) year bond. However, weare of the further opinion that after the repeal of Article 5661, which was effective onJune 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 

### 5569if used after June 

### 30,1966.

Asto the bond form prescribed by the Commissioner of Agrlaulture for use after June 

### 30,1966,weare of the opinion that the provision in such bond form, that the bond wasto 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 andwhich would limit or avold or measure liability by the giving or receipt of notice Is withouteffect andwould be invalid. United States Fidelity Co. v. Poetker, 

### 180Ind. 255, 102 N.E. 372 (1 1 w t C &Guaranty Inssdo. 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;. Thebond 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 andto limit the liability, This additfonal condition, wethink, maynot be imposed,” (159 P. 659)

- 

### 485-Hon. Joe Resweber, page 

### 6 (w-106)

Thefifth 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 

### 5569provides in part that:
n .rhlah certlflcate shall be issued by said clerk upon awritten appllcatlon, setting forth the looatlcn andnameof such warehouse or warehouses, andthe nameof each pergon, Individual or amemberof the firm, Interested as owner or principal in the managementof the same, or, If the warehouse is owned-or managedby a corporation, the n+uneof the president , secretary andt;easurer of such carporation shall be stated. , , , After a study of the application form attached, which was prescribed by the Texas Department of Agriculture, weare 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 anapplication for public warehouseman,. tendered to him, other than the filing of same?” 

### “(7) Does the County Clerk have anyduty 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,weare 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.heInformation 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, Thebond

- 

### 486--. .

Hon. Joe Resweber, page 

### 7 (,M.+l.C$)

andthe application for the certiffcate are required to be filed by the County Clerk, and In addition , such bond andapplication 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 mayapprove anybond 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. ACounty 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 andpreserve the applications and bonds filed with himby public warehousemen. V&truly yours,

Prepared by Pat Bailey Assistant Attorney Qeneral

- 487-.- -

Hon. Jae Reaweber, pae;e8 (M&6)

APPROVED: OPINIONCOMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman John Fainter HowardFender Dyer Moore, Jr. John Reeves STAFFLEGAL

A$SXBTANT A, J, Carubbl, Jr.