Untitled Texas Attorney General Opinion ( 1967 )

TEZE AVTORNEY GENERAL
OF mXAS
November 1,190
Honorable Joe Resweber Ophrion No. M-l 54
County Attorney
Harris County Courthouse Re: Whether the County Tax AssessorCollecror
Houston, Texas 17002 is required under the provisions of H.B.
No. 214, Acts 60th Leg, (Art. 113?q, V.P.C )
to accept sworn itemixed inventories and
issue permits where a business is not de-
funct, but is merely closing a store at one
Dear Mr. Resweber: particular location, and related question.
You have requested an opinion from this office regarding the following questions:
“1. Is the County Tax Assessor and Collector required to accept sworn
itemized inventories and issue permits where a business is not defunct, but is
merely closing a store at one particular location?
“2. Is the County Tax Assessor and Collector required to accept a
sworn itemized statement from a business rolating to a store which is located
within the County, but which is also located within the territorial boundaries
of an incorporated town or oity?”
The applicable provisions of the statute, House Bill No. 214, Acts 60th Legislature (Article
1137q, Vernon’s Penal Code), governing the questions are as follows:
“Section 1. that the term ‘going out of. business sale’ shall mean any
offer to sell to the public or sale to the public of goods, wares and merchandise
on the implied or direct representation by word of mouth or written or oral
idvertiaing that such safe kin anticipation of the termination of a busfness at:
its present location.
/
4‘. . .
“Sec. 3. To conduct a ‘going out of business sale,’any person. firm,
or corporation shall file a sworn itemized inventory with the assessor and
collector of taxes of the cify or county, which havfurisdfction of his location,
togother with a filing fee of $2. Said sworn inventory shall include the fol-
lowing:
(1) Name and address of the owner of the goods,
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Honorable Joe Resweber, page 2, M-154
wares or merchandise to be sold.
(2) The name and address of the ownor of the de
funct business, the former stock in trade of which is to be
offered for sale, and tho full name of such defunct business.
(3) A description of the place where the liquidation
salo is to bo held.
(4) The commencement and termination date of the
liquidation sale.
(5) A complete and detailed Inventory of the goods,
wares, and merchandise to be offered at the liquidation sale
if the owner is conducting said sale in his own name, or such
information in tho form of a copy of an itemized and do-
scriptive bill of sale from the oWner of the defunct business
sold to any other person conducting the liquidation salo to be
sold at such sale. Upon receipt thereof by the assessor and
collector of tares of the cfry or counry, the applicant should
be issued a permit for ‘going out of business’sale; for 120
days. If at the expiration of the 120 days of the original
permit the applicant has not terminated his business, he shall
fde with the assessor and collector of taxer of the city or
county an Inventory reflecting the remaining merchandise
which shall include the information as stated in the original
application and the messor and collector of taxes of the
city or county shall upon the receipt thereof and a renewal
fee of 52 issue a renewal permit for 120 days; provided how-
ever, that at tho expiration of the fust permit and any subse-
quent renewal an amended inventory stating any additional
items, not included in the original inventory initially filed,
which have been offered for sale shall be filed with the au-
thority which received the initial inventory.” (Emphasis
added)
In an additional memorandum, the question concerning whether the captionviolatr
Article 3, Section 35 of the Texas Constitution has been raised.
kticle III, Section 35 is as follows:
“No bill, (except general appropriation bills, which may embrace the
various aubjoctr and accounts, for and on account of which moneys are ap-
propriated) shall contain more than ono subject, which shall be expressed in
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honorable Joe Resweber, page 3, M-l 54
its title. But if any subject shall bo embraced in an act, which shall not be ox-
pressed in the title, such act shall be void only as to so much thereof, as shall
not be so expressed.”
The caption of House Bill No. 214,6Oth LegMature, Regular Session 1967, chapter 434,
page 1003, (Article 1137q, Vemon’s Penal Code), reads, in part, as follows:
“An Act regulating the ‘Going. Out of Business’; providing a penalty
for violation; providing for sevonbility; and declaring an emergency.”
In Consolidated Underwriters v. Kirby Lumber Co., a Commission of Appo@ case,
267 S.W. 703, approved and adopted by tho Supreme Court, 1924, the Court stated at page 105
tho following:
“But it would, be useless and impracticable for tho title to express all of
the provisions of a particular act and the dotails of each provision. For, in such
a case, this introductory matter would amount to a moro repetition of the legis-
lation itself, and would answer no purpose of abbreviated notice.
“h a result, doubtless, of these and othor practicable difficulties,
while constitutional provisiona regarding the expression of the subject-
matter in the title of bii have always been held mandatory, still they’have
been interpreted liberally and substantially and not strictly or literally.
Murphy v. Menard, 11 Tex. 673; Austfon v. G.,C. & SF.RR.Co., 45 Tex.
267;Breen v. T.&P.R.R.Co.. 44 Tox. 305.. .”
Accord, Continental @s System v. Ckmey, 310 S.W.Zd 676 (Tox.Civ.App., 1958, error
ref.).
The caption meets the test of constitutionality set out in Stone v. Brown, 54 Tex. 330;
at page 334, wherein the Court stated:
“None of tho provisions of a statute should be regarded as unconstitu-
tional where they relate, directly or indiit!y. to the same subject, have a
mu&l connection, and are not foreign to the subject expressed in the title.”
Therefore, under the ~10s promulgated by our courts, the caption of House Bill No. 2 14
(Article 1137q, Vernon’s Penal Code) does not contravene Article 3, Section 35, Constitution of
Texas.
The subject of the bilkis “going out of business” and despite the fact that “sales” is not
Specifitiy mentioned, “sales” is clearly germane, incidktal to, and relevsnt to the subject of
%ing out of business”.
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Honorable Joe Resweber, page 4, M-l 54
In response to Question No. 1, it is the opinion of this office that the facts furnished are
insuftkient to determine whether the owner has advertised he is going out of business in such a
manner as to come within the scope of the new act. In the event that the owner is merely closing
out a store without advertising pursuant to Article 1137q, the owner would not be subjeot to the
Act, and, therefore, the county or city tax assessor collector would not be required to accept
sworn itemized inventories and issue permits as provided in Article 1137q. If the owner:& merely
closing out a store at a particular location and advertises such fact pursuant to Article 1137q, he
would be subject to that Act and must comply with the provisions thereof.
In all cases where a business is being terminated or becoming “defunct” at a given loca-
tion and in connection therewith is conducting a “going out of business sale,” the city or county
tax asaessor~ollector, whichever has jursidiction, is required to accept sworn itemized inventories
and issue permits, as provided by Article 1137q, Vernon’s Penal Code. In our opinion, the word
“dotknct,” as used by the Legislature, in view of the definition of a “going out of businesssale,”
contemplates the termination of a business at a given location and even if the business of the
owner continues to operate at other locations.
In response to Question No. 2, WCobservo that the language throughout the statute pw
vidcs that the owner can fde the statement with the county or city tax assessorcollector, which-
ever has jurisdiction. Inasmuch as the Legislature used the word “or,” it would appear that the
owner has an election, when there is a county tax assessorcollector and a city tax assessor-
collector,. to file the sworn list with either. In the case of Shell Petroleum Corp. v. Royal
Petroleum Corp.. 135 Tex. 12, 137 S.W.2d 753 (1940), it is stated at page 758:
“In its ordinary use the term ‘or’ is disjunctive, and alternative in its
effect. See the analogous cases of Oxsheer v. Watt, 91 Tex. 402, 44 S.W. 67.
Unless there is some impelling reason apparent in the context, it should be
given its ordinary, rather than a conjunctive meaning.”
Should the owner in such situation select the county tax assessor-collector, that officer will be
required to accept the list. Therefore, it is the opinion of this office that the answer to Question
No. 2 is yes.
SUMMARY
Tho caption of House Bill No. 214, 60th Le.gislature (Article 1137q,
Vernon’s Penal Code) does not contravene Article III, Section 35, Constitu-
tion of Texas, and the statute is not unconstitutional on that ground.
Whenever a business is being terminated or becoming “defunct” at a
given location and in connection therewith is conducting a “going out of
business sale,” the city or county tax assessorcollector, whichever has juris-
. . ,. . . . ..
.
Honorable Joe Resweber. page 5, M-l 54
provided by Article 1137q, Vernon’s Penal Code. The word “defunct” as used
by the Legislature, ln view of the deftition of a “going out of business sale”
contemplates the terrninatlon of a business at a given location and even if the
business of the owner continuter to operate at other locations.
If the owner tknlshes a sworn itemized statement to the County Tax
Assessor-Collector, relating to a store which is located within a county, and
also within the terrltorlal ‘boundaries of an incorporated town or city, the
County Tax Assessor and Collector ls required to accept same.
vT
truly yours,
m7=
FOR C. MARTIN
At ey General of Texas
‘~*
Prepared by Terry Reed Goodman
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns B. Taylor, Co-Ch+m~an
w. v. Geppert
Robert Owen
Ralph Rash
James McCoy
STAFF LEGAL ASSISTANT
A J. Cambbi, Jr.
-719.