Hen. J. W. Falkner

Commissioner Department of Banking Austin, Texas OpinionNo. 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:

"Annualpublication or filing of statement of financial condition.
Sec. 4. Such corporation.

. . .shallpublish in some newspaper of general circulation in the county where it has itsprincipal place of busizess, on orbefore 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 statementwith the Zanking Commissioner of Texas togetherwith 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.

. . .shallfiiewith the Inking Commissioner ofTexas 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 Commissionermay, for good cause shown, extend the time of publicationand fil= not more than sixty (60)days. (Emphasis supplied.) Penalty for failure to

publish statement.
Sec. 5. If any such corporation shall fail to complywith 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 shallbe collected at the suit of the Attorney General if not paidwithin thirty (30) days after February first of eachyear."
Your letter requesting this opinion reads inpart:
"It is our interpretation of the statute thatwe are not authorized to grant an extension of time for filingunless the request for the extension, showinggood cause therefor, ismade on orbefore February 1. If the Statement isnot filed and a request for extension isnot made on or before February 1, the statutorypenalty is automatically inc-urred,in ourvie>I. Where a Statement is filed subsequent to but within sixty (60) days after February 1, and a request ismade at the time of filing for an extension to be granted retroactively from Febnl2ry 1, it is ourposition that we do not have discretion or authority to consider the request." Tie o+uestion

presentedhere is simplywhether ornot 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.ssionerafter 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 orbefore 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 provisionswere intended to be mandatory; they provide that such corporations "shall" file such statements on or before February lst,unless the Banking Commissionerallows an extension of that time for good cause shown. With ,respectto statutes imposing criminal sanctions or penalties, the rulehas been statedwith particular clarity that, "Wherea legislativeprovisionhis followedby a enalty for failure to observe it, the provision Ismandatory".E This rule.of statutory construction certainly is applicable to the statutoryprovisionshere 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 5roper performance thereof, the statute isheld to be mandatory. Therefore, the provision in Section 4 for filing a statement of condition on orbefore 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 courtheld that a statutorv _--_ amendment~prb~idingan exception-to a provision of the amended - statutemust 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 s5rictly 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 otherwords, 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 (3rdEd. 1943 p. li0. 2Ibid.,p. 107. 339Tex. Jur. 277, Statutes, Sec. 148.

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

"Where,as is frequently ifnot usually the case, the statute reads that a courtmay 'extend' the time granted for doing an act, it isuniformly held that the ordermast be made within the statutory time, because, as the court said in State v. Scott, 113 MO. 559, 20 S.W. 1076, 1077 (1893): 'Theword 'extended',as employed in this statute,means lprolongedl;and of coursea prolongation of time cannot occur after the time originally limitedhas expired.'" To the same effect see State v. Cutberth, 203 MO. 579, 102 S.W.~658 (1907);Schlosser Leat'ner

Co. v. Gillespie, 157Term. 166, 6 S.W.2d 328 (1928); CraneEnamelware Co. v. Smith, 168Tenn. 203, 76 S.W.2d 644 (1934);Coast Electric Service, Inc.v. Jensen, 111 Cal.App. 124, 295 P. 346 (1931). The Ranking Commissioner shouldnot, therefore,grant an extension of time for the filing~of a statementafter the time for filinghas already elapsed. SUIQVRY Under the terms of Section 4 ofArticle 152411, V.C.S., the failure to either file a statement, or obtainan extension of time for filing on or before February 1 of eachyear subjects the corporationto the penaltyprovided in Section 5 ofArticle l52kA.
Yours very truly,
WAGGONER CARR Attorney General ofTexas

JNS:Jf James N. Storer Assistant

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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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