Honorable Bert Ford, Administrator

Texas Liquor Control Board Ahtin, Texas

Dear Sir8 OpinionHo. O-6644 Rer Rhere a foreign corporation,with of without P pemit to dohtsiness in Texas, is an appliornt for a nonresident Seller's Permit underthe Texas Liquor Control Act, and has filed in the office of the Secretary of State a power of attorney, designatingits service agent, under the provisions of House Bill Elo.709, has said foreign oorporationcompliedwith Sm. 16$ of Art. 666, P.C., and Sec. 12 of ht. 667, P.C.?

Is it the duty of the~Seoretaryof State to determinewhether the power of attorney is properly executedand does the Secretary of State and his suocessbrs in offioe have authority, Mder appointment by the applicant,to act as applicant"s serviceagent?

Your letter dated 4ugust 12, 1949, requestingan opinion of this department conserningthe above matter and submittingfor approval "CERTIFE CaTR OF ILPPOINTUE'~ RESIDENT STATEAGEMV,' reads in part, to-wits

"Section 14 of S.B. 117 enacted by-the Regular Session of the 48th Legislatum oreateda new Sectionto be known as Section 16& of Artiale 666 of the Penal Code. So far a8 this inquiry is concerned the pertinent parts of Section 15& aren

**Section 1%. A..(1) Non-residentSeller's Permits 1.Bon-resident Seller's Permit shallbp required of all distilleries,wineries, immporters, brokers, and others who sbll liquor to the holders of permit authorizingthe importationof liquor into Texas, regardlessof whether such sales am oonswmnetedwithin or without the State. Such pewit shallauthorizethe holder thereof tarHon. Bert Pord,'Page 2 (O-5544)

"'(a). Solicit or take orders for liquor from only the holders of permits authorieed to import liquor into this States
"'(b). Ship, or causeto be shipped, liquor into Texas only in consuunsation of salesmade to the holders of permits authorized to import liquor into Texas.
"e(2).,No permit shallbe granted to an applicant for a Non-residentSeller's Permit until it shall have been shown by the applioant that he has first filed with the Secretary of State a certificateoertif'ying that he has appointed an agent, residentwithin this State, togetherwith the streetaddress and business of such agent. All notices of hearing forrefusal, cancellation,
or suspensionmay be servedupon the designated agent as required herein, or upon the permittee,
or if a corporation,upon any officer thereof, or upon any other agent of thenon-msident seller authorisadas suoh to sell liquor in this state, and all proceedingsas to suoh hearings shall be
as is otherwiseprovided by this Aate Service of notice in suchmanner shall constitutedue processs provided further, that if any permittee shsll have failed tomaintain within this state a desigmated agent for serviceas herein required, servicemay be had on the Secretary of State, and it shallbe the duty of the Secretary of State to send any citation served on him to the holder of the permit by registeredmail, mturn receipt requested,and such receipt shallbe prdma facie evidemcs of service upon the permittee.*

"Section 12 of Article 667 of the Penal Code provides as followss

"QSec. 12. Any manufacturer,distributor, or person shippingor delivering beer into this State shall filewith the Secretary of %ate a certificate certifyingthe name of his agent uponwhom servicemay be had, and his or its street address and businessp and in the event such person fails to canplywith this requirementwithin fifteen (15) days from the effect$vedate hereof the servicemay be had
on the Secmtary of State in any cause of action arising out of the violation of thisAct, and it shall be the duty ofthe Secret&y of Stats to send any such citation served
on him to suchperson, rhomay be in a foreign state, by registeredmail, return reoeipt requested,and such receipt shallbe prima facie evidenoe of serviceon suahperson.'Hon. Bert Ford, Page 3 (O-5544)

I( 0

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"We respectfullyrequestyour opinion in snswerto the followquestions8

'1. Where a foreign corporationhas a permit to dobusiness in Texas and files in the Office ofthe Secretary of State a Power of Attorney under the provisions of l&se Bill Noe 709, is the filing of said Power of Attorney a complianoewith the provisions of Section 16$*Article 666 of the Penal Code and Section 12,Article 667 of the Penal Code or shall said oorporation be required to file another form of a Power of Attornay to comply with Section 15& Article 666 of the Penal Code and Se&ion 12, Article 667 of the Penal Code?

'2e Where a corporationdoesnot have a permit to do business in Texas, but files a Power of Attorney ap ointing an agent for service in the Office of the Secretaryof !tats under the provisions of House Bill l+or 709, is said filing a compliancewith the provisions of Section 15&, Artiole 666 of the PQnal Cbde and Seation 12, Artiole 667 of the Penal Code or shall said oorporation be requiredto file another form of a Power of &torney tocomply with Section I&, Article 666 of the Penal Code and Section 12, Article 667 of the Penal Code?

n30, Should this form provide for a showingas to whether the person filing the form is an individual,partnership,assooiation or a corporation?

-4. If it is a corporation,what officers of the corporation shall sign the Power of Attorney?

*se Should a copy of the minutes of the Board of Direotors of the corporationappointing the agent for 8QrvioQ acceanpany the Power of Attorney or would it be sufficient for the Power of Attorney to provide that the officers are aoting under the authority of the Board of Directors of the corporation,if the Power of Attorney is properly sworn to?

"6e Is it the duty of the Secmtary of Stats to determinewhether the Power of Attorneys are properly executed or shallthe Seoretary of Statemerely file the instrumentswhether they= properly executed or in proper form?

*7. If a person, partnershi or corporation in complyingwith 5B the provisionsof Section 1 Q, Article 666 of the Penal Code and Section 12,Article 667 of ths Penal Code desires to make the Secretary of State and his successors in office in their- r

Hon. Bert Ford, Page 4 (O-6544)

official capacity their agent for service in Texas, does the Secretary of State have authority to act as their agent for service?

"Ifyou answer question 7 in the affirmative,then please inserta provision to that effect in the Power of Attorney if it is necessary to make corrections inthe instrument.

"If in your opinion the attached form is not a sub. stantial compliancewith the lawn then we would appreciate it if you would prepare one that in your opiniondoes substantially complywith the lawe"

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. . . e

"House Bill No. 709, Sec. 2. The power of attorney required by this hot shall, in addition to stating the name and address of the agent, also stipulate that saidagent is appointed as a corporation's serviceagent in Texas, and that said foreign corporation consentsto the serpioe.ofprocessupon said agent and that he shallbe deemed as the sex-vice agent of said oorporationfor all intents end purposes as oontmsplatedby the statutes requiring such designationand appointment; said power of attorhey shall be acknowledgedby the president orvice president,attested by the secretary and acknowledged in themanner and form as is required in acknowledgmentof deeds in the State of Texas; said power of attorney shall, when executed, be filed in the office of the Secretary of State and shall beccme a part of the records in said office."
Paragraph (2) under seotion 1% of Senate Bill 117 and Sea. 12 of Art. 667, P. C., provide that the certificateof appointmentof the servioe agent show that the said service agent is a residentwithin this state, give the streetaddress and business of such agent. The power of attorney under Section 2 of House Bill 709 does not require that the business of the agent be given.

"house Bill No. 709e Sec. 1. No foreign corporation shall transact or do sny business in this State without first having filed in the office of the Secretary of State a power of attorneydesignating some individualwho is a resident citizen of this state, as its serviceagent, upon whom processmay be served in all suits, proceedings and causes of actions pending or hereafter filed in this state, in whioh said foreign corporationis a party, or is to'bemade a party,"Hon. Bert Ford, Page 5 (O-5544)

In answer to your first and seoond questions, it is the opinion of this departmentthat where a foreign aorporetion,with or without a permit to do business in Texas, is an applicant for a Non-ResidentSeller's Permit under the Texas Liquor ControlAct, it is required to file a power of attorney appointinga service agent in compliancewith Sec. 15& ofArt. 666, P.C., and Sec. 12 ofArt. 667, P.C. The filing in the office of the Secretaryof State of a power of attorney, designatinga servics agent, under the provisions of House Bill 709, is not a compliancewith Sec. lf& of Art. 666, P.C., and SQO. 12, of ht. 667, P.C.

In answer to your third question, it is the opinion of this department that where a corporationappoints a servioeagent the power of attorney shouldbe signed by the president or vice presidentand attested by the seoretaryand acknowledged.

In ansrsringyour fifth question, it is the opinion of this department that where the form appointing said serviceagent shows on its faos that the Board of Directorshas authorized the president or vice president to appoint the semice agent and is properly 811)~n to, it is not necessary that a oopy of theminutes of the Board of Directorsaccompany the power of *ttorney.

In answer to your sixth question, it is the opinion of this departmentthat it is the duty of the Secretary of State to determinewhether the powers of attorney are properly executedbefore they are filed.

In answer to your seventh question, it is the opinion of this department that where a person, partnership or corporationappoints a service agent in compliancewith the provisionsof Sec. 15$, Art. 666, P.C. and Sec. 12,Art. 667, P.C., desires tomake the Secretary of State of Texas and his
suooessors in office his or its agent for service in Texas, the Secretary of State has authority to act as such agent for service.

lVshave carefully studied the form, "CERTIFICATIONOF APPOIRTED RESIDENT STATEAGENT," which you submittedfor approval and ws are of the opinion that said form isnot a substantialcompliancewith Sec. 15-2, Art. 666, P.C., and Sec. 12,Art. 667, P.C. We are attaching, hereta a form approved by this department as being in compliance,withSec. l&,.Art, 666 P.C., end Sac, 12, Art. 667, P.C.
Very truly your*

JOsFOregw Enclsoure APPROVED SEP 14, 1943 's/Gerald C. &ran ATTORNEY GENERAL OF TEXAS ATTORBEY GEEERAL OF TEXAS
By s/ Jesse Owens Jesse Owsns ~ssistmt
Bpproved Opinion Committee By GWB Chairman