JIMMATTOX Attorney

General

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An Equal OpportUnitYI Eouse Bill NIJ.385 contains the following language in regard to Affirmative Action Employer thepetit to be is,sued by the county clerk: 

# The Attorney General of Texas

Sl:ptember

25, 1985

EooorablcMike Dr:Lscoll Rarrls CountyAttorney 1001Preston, Suite 634 Houston.Texas YiOO2 OpinionNo. ~~-357

Re: County clerk's dutiespursuant 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-businesssales. E.B. No. 385, Acts 1985,69th Lhl:.,ch. 172, at 920 (tobe codified as Bus. & Coarm. Code, 1517.81 through 17.93). Under the new law anyonewho represents that a sale is in anticipation of the termination of a business must filevarious inventories and obtain a permit in order to conduct the sale. A personwho intends to couduct such a salemust 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-holdermusi:file a sale inventory, andwithin 30 days after the end of the sale,he must file a final inventory. Id. 0117.86, 17.87. -
In your requezstletter and in subsequent correspondenceyou 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 longmust the countyclerk re:tain the inventoriesandwhere should theybe kept.

(a) A.ftcrreceiving an original inventory, the county clerk shall issue to the applicant a permit for a gxlng out of business sale. The permit is valid fclr120days after the day that it is issued and is r:atrenewable.

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(b) The permit holder must post the permit in
a conspicuouspla,:eat the location of the going out of business ss,le.
(c) Before advertisinga going out ofbusiness sale, the permit holder shall deliver a copy of the permit to the person publishing or broadcasting theadverl:isement.

Id. 517.84. The legislaturedid 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:thename and address of the person towhom itwas issued, **the** locationof the sale, t'xe date on which the permit was issued and the date onwhich 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** shouldbear inmind the purpose of thepermit.

The original invento,ryfiled with a county clerk must be accompaniedby 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 chargedby the county clerk. You suggest that the $20 fee is for the filing of the c~riginalinventory only and that a clerk's authority to charge addit::onalfees 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 forwhichno fee is set by thisAct."
First, it is important to note that although article 3930(10) allows a clerk to charge r'sasonablefees 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 tobe charged for a servicerenderedby a county clerk, the fee set is
a legislative determination of what is a reasonable fee for the servicesrendered. A clerkmay not disregard thatdetermination. See - AttorneyGeneralOpinionMU-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 statutemakes no mention of any fee other than the $20 fee tobe collectedthe first time the clerk renders any serviceto an applicant suggests that the legislatureintended the $20 fee tobe the only fee for services renifzred by a county clerk pursuant to Douse

p. 1633t

HonorableMike 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:ureintended it to be the only fee. The prior law governing going-aut-of-businesssales 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 120dars thepermit-holder couldobtain 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 inventoriesnor a final inventory. Under that law each $2 feewas 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 legislaturetook into account the
numerous filings required under the new law and the burden those filingswould place on counl:y clerksaad that the $20 feewas intended to cover all services renderedby 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.rthe clerk in court uroceedinas. See. a, V.T.C.S. art. 3930(.,ji(B)(l)(a)(i) (setting~initial feesfor various probate matters); 888salso Rodeheaverv. 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 serviceswhich 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)' (seecases cited therein). - Finally you ask how loag the county clerkmust 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 :cecordsof the county clerk). Thus, the county clerk must retain the:inventoriesunless they are microfilmed in accordancewith article :.941(a), V.T.C.S.

From our correspondenc,ewith you we understand that you are referring to the seven clane,es of records set out in article 1941(a) when you askwhere 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 countyclerk. 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 shouldbe recorded in the class formiscellaneous records, which is known as "Official Public Records of Governmental, Business and PersonalMatte%." V.T.C.S. art. 1941(a),52(b)(7).

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SUMMARY

The legislatwe did not prescribe a specific form for thepernit tobe issuedpursuant toRouse BillNo. 385. The form of the permit shouldmake clear that a pc:rsonconducting a going-out-ofbusiness sale is subject to Eouse Bill No. 385. The $20 fee covers all services of the clerk requiredby House!Bill No. 385. The county clerk must retain thlt inventories unless they are microfilmed in rtccordancewith article 1941(a), V.T.C.S. If the i,nventories aremicrofilmed.they should be put in the class for miscellaneous records. V.T.C.S. art. 1941(a), 02(b)(7).

AttorneyGeneral of Texas

TOM GREEN First AssistantAttorneyGoneral

DAVID R. RICBARDS ExecutiveAssistantAttorney General

ROBERT GRAY SpecialAssistantAttorney General

RICE GILPIN Chairman,OpinionComnitte~!
Preparedby SarahWoelk AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE
Rick Gilpin, Chairman Colin Carl SusanGarrison Tony Guillory Jim Moellinger JenniferRiggs Nancy Sutton SarahWoelk

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