Hen. J. W. Falkner 

Commissioner 

Department of Banking 

Austin, Texas 

Opinion No. C- 31 

'Re: Construction 

tion 4 and 5 - -_I. 

of Secof 

Article 1yNA, Vernon's 

Civil Statutes; narticularly concerning 

the operation of the 

Dear Mr. Falkner: proviso in Section k. 

You have requested the opinion of this office as to 

whether or not your departmental interpretation of Sections 4 

and 5 of Article 1524A, Vernon's Civil Statutes, is correct. 

Sections 4 and 5 of Article 1524A provide as follows: 

"Annual publication or filing of 

statement of financial condition. 

Sec. 4. Such corporation. . . .shall publish 

in some newspaper of general circulation in the 

county where it has its principal place of busizess, on or before the 1st day of February each 

year, a statement of its condition on the previous 31st day of December, in such form as may 

bz re~~ired by the anking Commissioner of Texas, 

s;howing under oath its assets and liabilities, 

and shall file a copy of such statement with the 

Zanking Commissioner of Texas together with a 

fee of Twenty-five ($25.00) Dollars for filing. 

Provided, however, that the Banking Commissioner 

r{Aq, for good cause shown, exLend the time 01 

Fulication and filing not more than sixty (501 

clays. 

Such corporation. . . .shall fiie with the 

Inking Commissioner of Texas on or before the 

1st day of February of each year a statement of 

its condition on the previous 3lst day of December. . . . 

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. . 

Honorable J. W. Falkner, Page 2 (C-31 ) 

. . 

Provided, however, that the Danking Commissioner may, for good cause shown, extend the time of publication and fil= 

not more than sixty (60) days. (Emphasis 

supplied.) 

Penalty for failure to 

publish statement. 

Sec. 5. If any such corporation shall 

fail to comply with Section 4 of this Act 

in the manner and within the time required, 

such failure shall subject such corporation 

to a penalty of not less than Two Hundred 

t 

$200.00) Dollars nor more than One Thousand 

$1000.00) Dollars, which shall be collected 

at the suit of the Attorney General if not 

paid within thirty (30) days after February 

first of each year." 

Your letter requesting this opinion reads in part: 

"It is our interpretation of the statute 

that we are not authorized to grant an extension of time for filing unless the request 

for the extension, showing good cause therefor, 

is made on or before February 1. If the Statement is not filed and a request for extension 

is not made on or before February 1, the 

statutory penalty is automatically inc-urred, in 

our vie>I. Where a Statement is filed subsequent 

to but within sixty (60) days after February 1, 

and a request is made at the time of filing for 

an extension to be granted retroactively from 

Febnl2ry 1, it is our position that we do not 

have discretion or authority to consider the 

request." 

Tie o+uestion presented here is simply whether or not an 

extsnsion of time for filing a statement of condition, as provided in the proviso of Section 4, can be made by the Danking 

comm. ssioner after February 1st. I:'e feel that your above 

quoted interpretation is correct; that, assuming there is no 

filing of the statement, an extension of time for such filing 

must be rade on or before February lst, or the extension of 

time xi11 not be allowed and the penalty provided in Section 

5 will be incurred. 

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. . 

Honorable J. W. Falkner, Page 3 (C- 31 ) 

It appears from the language of Section 4 that the provisions were intended to be mandatory; they provide that such 

corporations "shall" file such statements on or before February 

lst, unless the Banking Commissioner allows an extension of that 

time for good cause shown. With ,respect to statutes imposing 

criminal sanctions or penalties, the rule has been stated with 

particular clarity that, "Where a legislative provision his 

followed by a enalty for failure to observe it, the provision 

Is mandatory". E This rule.of statutory construction certainly 

is applicable to the statutory provisions here involved. Further, 

when a statute directs thin s to be done by a private person (as 

opposed to a public officer B within a specified time, and makes 

his rights dependent on 

5 

roper performance thereof, the statute 

is held to be mandatory. Therefore, the provision in Section 

4 for filing a statement of condition on or before February 1st 

must be strictly complied with, unless an extension of time Is 

made~by the Banking Commissioner for good cause shown. 

In'City of Corpus Christ1 v. McClangherty, 284 S.W.2d 927 

(Tex. Civ. ADD. 19%. _--_ error ref.). the court held that a statutorv 

amendment~prb~iding an exception-to a provision of the amended - 

statute must be strictly construed. 

to the provisos of Section 4, 

This rule readily applies 

since they were added by amendment 

in 1943. (Acts 48th Leg,, 19113, ch. 95, p. 125). Also, Texas 

Jurisprudence states that a proviso is to be s 

5 

rictly applied 

and not to be extended beyond its plain terms. 

and Phrases 615, 

In 15A Words 

"extend" is defined as meaning to stretch out 

or to draw out or to enlarge a thing; it implies something in 

existence; "extend" is a transitive verb requiring an object. 

Tnerefore, before the Banking Commissioner can extend the time 

of filing, there must be something In existence to extend. In 

other words, if a new filing date were to be set after February 

lst, it wouid be the mere setting of a new and armry date 

and not the prolongation of,a fixed date. 

i3 Sutherland on Statutory Construction (3rd Ed. 1943 

p. li0. 

2Ibid., p. 107. 

339 Tex. Jur. 277, Statutes, Sec. 148. 

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Honorable J. W. Falkner, Page 4 (C- 31 ) 

In Rodda v. Rodda, 185 Or. 140, 202 P.2d 638’(1949), the 

court stated: 

"Where, as is frequently if not usually the 

case, the statute reads that a court may 'extend' 

the time granted for doing an act, it is uniformly 

held that the order mast be made within the statutory 

time, because, as the court said in State v. Scott, 

113 MO. 559, 20 S.W. 1076, 1077 (1893): 'The word 

'extended', as employed in this statute, means 

lprolongedl; and of course a prolongation of time 

cannot occur after the time originally limited has 

expired.'" To the same effect see State v. Cutberth, 203 MO. 579, 102 S.W.~ 658 (1907); Schlosser 

Leat'ner Co. v. Gillespie, 157 Term. 166, 6 S.W.2d 

328 (1928); Crane Enamelware Co. v. Smith, 168 Tenn. 

203, 76 S.W.2d 644 (1934); Coast Electric Service, 

Inc. v. Jensen, 111 Cal.App. 124, 295 P. 346 (1931). 

The Ranking Commissioner should not, therefore, grant an 

extension of time for the filing~of a statement after the time 

for filing has already elapsed. 

SUIQVRY 

Under the terms of Section 4 of Article 152411, 

V.C.S., the failure to either file a statement, or 

obtain an extension of time for filing on or before 

February 1 of each year subjects the corporation to 

the penalty provided in Section 5 of Article l52kA. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

JNS:Jf 

James N. Storer 

Assistant 

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Honorable J. W. Falkner, P2ge 5 (C- 31 ) 

A?PROVED: 

OPINION COMMITTZE 

W. V. Geppert, Chairman 

Joe R. Long 

Brady Coleman 

Albert Pruett 

Jerry Srock 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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