Untitled Texas Attorney General Opinion ( 1963 )

Hen. J. W. Falkner Opinion No. C- 31
Commissioner
Department of Banking 'Re: Construction of Sec-
Austin, Texas tion 4 and 5 of
- -_I.
Article 1yNA, Vernon's
Civil Statutes; narti-
cularly 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:
"Annual publication or filing of
statement of financial condition.
Sec. 4. Such corporation. . . .shall publish
in some newspaper of general circulation in the
county where it has its principal place of busi-
zess, on or before the 1st day of February each
year, a statement of its condition on the pre-
vious 31st day of December, in such form as may
bz re``ired by the anking Commissioner of Texas,
s;howingunder oath its assets and liabilities,
and shall file a copy of such statement with the
Zanking Commissioner of Texas together with 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. . . .shall fiie with the
Inking Commissioner of Texas on or before the
1st day of February of each year a statement of
its condition on the previous 3lst day of Dec-
ember. . . .
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. .
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Honorable J. W. Falkner, Page 2 (C-31 )
Provided, however, that the Danking Com-
missioner may, for good cause shown, ex-
tend the time of publication and fil=
not more than sixty (60) days. (Emphasis
supplied.)
Penalty for failure to
publish statement.
Sec. 5. If any such corporation shall
fail to comply with 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
$200.00) Dollars nor more than One Thousand
t$1000.00) Dollars, which shall be collected
at the suit of the Attorney General if not
paid within thirty (30) days after February
first of each year."
Your letter requesting this opinion reads in part:
"It is our interpretation of the statute
that we are not authorized to grant an ex-
tension of time for filing unless the request
for the extension, showing good cause therefor,
is made on or before February 1. If the State-
ment is not filed and a request for extension
is not made on or before February 1, the
statutory penalty is automatically inc-urred,in
our vie>I. Where a Statement is filed subsequent
to but within sixty (60) days after February 1,
and a request is made at the time of filing for
an extension to be granted retroactively from
Febnl2ry 1, it is our position that we do not
have discretion or authority to consider the
request."
Tie o+uestionpresented here is simply whether or not an
extsnsion of time for filing a statement of condition, as pro-
vided in the proviso of Section 4, can be made by the Danking
comm.ssioner after February 1st. I:'efeel 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 or before 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 pro-
visions were intended to be mandatory; they provide that such
corporations "shall" file such statements on or before February
lst, unless the Banking Commissioner allows an extension of that
time for good cause shown. With ,respectto statutes imposing
criminal sanctions or penalties, the rule has been stated with
particular clarity that, "Where a legislative provision his
followed by a enalty for failure to observe it, the provision
Is mandatory".E This rule.of statutory construction certainly
is applicable to the statutory provisions here involved. Further,
when a statute directs thin s to be done by a private person (as
opposed to a public officerB within a specified time, and makes
his rights dependent on roper performance thereof, the statute
is held to be mandatory. 5 Therefore, the provision in Section
4 for filing a statement of condition on or before 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 court held that a statutorv
amendment~prb~iding an exception-to a provision of the amended -
statute must be strictly construed. This rule readily applies
to the provisos of Section 4, 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 s rictly applied
and not to be extended beyond its plain terms.5 In 15A Words
and Phrases 615, "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
other words, 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 (3rd Ed. 1943
p. li0.
2Ibid., p. 107.
339 Tex. Jur. 277, Statutes, Sec. 148.
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Honorable J. W. Falkner, Page 4 (C- 31 )
In Rodda v. Rodda, 185 Or. 140, 202 P.2d 638’(1949), the
court stated:
"Where, as is frequently if not usually the
case, the statute reads that a court may 'extend'
the time granted for doing an act, it is uniformly
held that the order mast be made within the statutory
time, because, as the court said in State v. Scott,
113 MO. 559, 20 S.W. 1076, 1077 (1893): 'The word
'extended', as employed in this statute, means
lprolongedl; and of course a prolongation of time
cannot occur after the time originally limited has
expired.'" To the same effect see State v. Cut-
berth, 203 MO. 579, 102 S.W.~658 (1907); Schlosser
Leat'nerCo. v. Gillespie, 157 Term. 166, 6 S.W.2d
328 (1928); Crane Enamelware Co. v. Smith, 168 Tenn.
203, 76 S.W.2d 644 (1934); Coast Electric Service,
Inc. v. Jensen, 111 Cal. App. 124, 295 P. 346 (1931).
The Ranking Commissioner should not, therefore, grant an
extension of time for the filing~of a statement after the time
for filing has already elapsed.
SUIQVRY
Under the terms of Section 4 of Article 152411,
V.C.S., the failure to either file a statement,or
obtain an extension of time for filing on or before
February 1 of each year subjects the corporation to
the penalty provided in Section 5 of Article l52kA.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
James N. Storer
JNS:Jf Assistant
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Honorable J. W. Falkner, P2ge 5 (C- 31 )
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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