JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 1254S 

Austin, TX. 78711. 2548 

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An Equal OpportUnitYI Eouse Bill NIJ. 385 contains the following language in regard to 

Affirmative Action Employer the petit to be is,sued by the county clerk: 

The Attorney General of Texas 

Sl:ptember 25, 1985 

Eooorablc Mike Dr:Lscoll 

Rarrls County Attorney 

1001 Preston, Suite 634 

Houston. Texas YiOO2 

Opinion No. ~~-357 

Re: County clerk's duties pursuant 

to Rouse Bill No. 385, 69th Legislature, 1985. codified as Business and 

Commerce Code, sections 17.81 through 

17.93, which regulates going-out-ofbusiness sales 

Dear Mr. Driscoll: 

You ask several questions about a county clerk's duties under a 

recent law that regulates going-out-of-business sales. E.B. No. 385, 

Acts 1985, 69th Lhl:., ch. 172, at 920 (to be codified as Bus. & Coarm. 

Code, 1517.81 through 17.93). Under the new law anyone who represents 

that a sale is in anticipation of the termination of a business must 

file various inventories and obtain a permit in order to conduct the 

sale. A person who intends to couduct such a sale must first file an 

original inventory with the county clerk of the applicable county. 

Id. 117.83. The filing fee for the original inventory is $20. Id. 

After the original inventory is filed, the clerk must issue a sale 

permit. Id. 517 $84. For each 30-day period during the sale the 

permit-holder musi: file a sale inventory, and within 30 days after the 

end of the sale, he must file a final inventory. Id. 0117.86, 17.87. - 

In your requezst letter and in subsequent correspondence you ask 

the following questions regarding Eouse Bill No. 385: (1) what 

information should be included in the permit issued by the county 

clerk; (2) may the county clerk charge a fee each time an inventory is 

filed as well as s fee for issuance of the permit; (3) how long must 

the county clerk re:tain the inventories and where should they be kept. 

(a) A.ftcr receiving an original inventory, the 

county clerk shall issue to the applicant a permit 

for a gxlng out of business sale. The permit is 

valid fclr 120 days after the day that it is issued 

and is r:at renewable. 

p. 1632 
Aonorable Hike Driscoll - Page 2 (JM-357 ) 

(b) The permit holder must post the permit in 

a conspicuous pla,:e at the location of the going 

out of business ss,le. 

(c) Before advertising a going out of business 

sale, the permit holder shall deliver a copy of 

the permit to the person publishing or broadcasting the adverl:isement. 

Id. 517.84. The legislature did not specify the form or the content 

ofthe permit, but it obviously intended that someone who sees a 

permit should realize that the person conducting the sale is subject 

to a law that regulates go:.ng-out-of-business sales. In order to be 

useful, then, the permit should contain at least the following 

information: the name and address of the person to whom it was issued, 

the location of the sale, t'xe date on which the permit was issued and 

the date on which the permit expires, the fact that the permit is not 

renewable, and the fact that the sale is governed by House Bill No. 

385. A county clerk may exercise some discretion in designing the 

permits. In doing so, however, he should bear in mind the purpose of 

the permit. 

The original invento,ry filed with a county clerk must be 

accompanied by a $20 filing !:ee. Although Bouse Bill No. 385 requires 

the filing of subsequent irventories with the county clerk and the 

issuance of a permit by the county clerk, it does not set any other 

fees to be charged by the county clerk. You suggest that the $20 fee 

is for the filing of the c~riginal inventory only and that a clerk's 

authority to charge addit::onal fees for the permit and subsequent 

inventories is to be found in article 3930(10). V.T.C.S., which 

authorizes and requires county clerks to charge reasonable fees for 

"such other duties prescribed, authorized, and/or permitted by the 

Legislature for which no fee is set by this Act." 

First, it is important to note that although article 3930(10) 

allows a clerk to charge r'sasonable fees for duties for which no fee 

is set "by this Act," that language does not permit a clerk to ignore 

fees set by other statutes. Rather, when another statute sets a fee 

to be charged for a service rendered by a county clerk, the fee set is 

a legislative determination of what is a reasonable fee for the 

services rendered. A clerk may not disregard that determination. - See 

Attorney General Opinion MU-452 (1982). 

IU our opinion the legislature intended the $20 fee paid at the 

time the original inventory is filed to cover all the services 

rendered by the clerk contemplated by Bouse Bill NO. 385. The fact 

alone that the statute makes no mention of any fee other than the $20 

fee to be collected the first time the clerk renders any service to an 

applicant suggests that the legislature intended the $20 fee to be the 

only fee for services renifzred by a county clerk pursuant to Douse 

p. 1633 
t 

Honorable Mike Driscoll - Page 3 (JM-357) 

Bill No. 385. Also, the amount of the fee set in Rouse Bill No. 385, 

by comparison to the filing: fee iu the prior statute OP the subject, 

indicates that the 1egislal:ure intended it to be the only fee. The 

prior law governing going-aut-of-business sales required an applicant 

to file an inventory "togethter with a filing fee of $2" with the city 

or county tax assessor or collector in order to obtain a sale permit. 

At the expiration of 120 dars the permit-holder could obtain a renewal 

permit by filing another inventory and paying a "renewal fee" of two 

dollars. Acts 1967, 60th Leg., ch. 434, at 1004 (codified at art. 

9011, V.T.C.S.; repealed by H.B. No. 385). The prior law required 

neither sales inventories nor a final inventory. Under that law each 

$2 fee was a charge for the filing of one inventory and the issuance 

of one permit. The increase in the filing fee from $2 for filing one 

inventory and the issuance of one permit by a tar assessor under the 

prior law to $20 for sim1l.a.r but expanded service by county clerks 

under the new law indicates that the legislature took into account the 

numerous filings required under the new law and the burden those 

filings would place on counl:y clerks aad that the $20 fee was intended 

to cover all services rendered by a clerk pursuant to Rouse Bill No. 

385. This one-time fee is analagous to the initial fee paid to cover 

various services rendered b.r the clerk in court uroceedinas. See. 

a, V.T.C.S. art. 3930(.,ji(B)(l)(a)(i) (setting~initial feesfor 

various probate matters); 888s also Rodeheaver v. Aldridge, 601 S.W.2d --- 

51, 54, (Tex. Civ. App. -' Houston [lst Dist.] 1980, writ ref'd 

n.r.e.). "Thus, the statutory fee is, in effect, an advance payment 

for the cost of services which have not been rendered at the time the 

fee is collected." Id. 'Furthermore, fee statutes are strictly 

construed, and fees are not permitted by implication." Attorney 

General Opinion SW-346 (1981i)' (see cases cited therein). - 

Finally you ask how loag the county clerk must retain the iaventories and where the inventories should be kept. House Bill No. 385 

makes no provision for the destruction or return of the inventories. 

Cf. Bus. 6 Comm. Code 536.14. (provides for the withdrawal of assumed 

Ge certificates from the :cecords of the county clerk). Thus, the 

county clerk must retain the: inventories unless they are microfilmed 

in accordance with article :.941(a), V.T.C.S. 

From our correspondenc,e with you we understand that you are 

referring to the seven clane,es of records set out in article 1941(a) 

when you ask where the inven,tories must be kept. The decision to put 

public records on microfilr in accordance with article 1941(a) is in 

the sole discretion of the county clerk. If a clerk chooses to do so, 

however, he must organize the records according to the seven classes 

listed in article 1941(a), section 2(b). Because inventories filed 

pursuant to Eouse Bill No. 385 do not fit into any of the other 

classes listed, they should be recorded in the class for miscellaneous 

records, which is known as "Official Public Records of Governmental, 

Business and Personal Matte%." V.T.C.S. art. 1941(a), 52(b)(7). 

p. 1634 
Bonorable Mike Driscoll - Page 4 (JM-357) 

SUMMARY 

The legislatwe did not prescribe a specific 

form for the pernit to be issued pursuant to Rouse 

Bill No. 385. The form of the permit should make 

clear that a pc:rson conducting a going-out-ofbusiness sale is subject to Eouse Bill No. 385. 

The $20 fee covers all services of the clerk 

required by House! Bill No. 385. The county clerk 

must retain thlt inventories unless they are 

microfilmed in rtccordance with article 1941(a), 

V.T.C.S. If the i,nventories are microfilmed. they 

should be put in the class for miscellaneous 

records. V.T.C.S. art. 1941(a), 02(b)(7). 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney Goneral 

DAVID R. RICBARDS 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICE GILPIN 

Chairman, Opinion Comnitte~! 

Prepared by Sarah Woelk 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

p. 1635