Untitled Texas Attorney General Opinion ( 1961 )

E Y GENERAL OF TEXAS AUSTIN 11. TEXAS WILL W1lLa,80N March 29, 1961 AlTORNEYGENERAL Honorable. Robert S. Calvert Opinion No. MM-1032 Comptroller of Pub11.c Accounts Capitol Station Re: Under the facts stated, Austin, Texas whether the operation of the 303 stores by the Southland Corporation constitutes a continuous operation so as to place ‘. It under the licensing requirements and the penalty girovision of Art. Dear Mr. Calvert: 17.04, Title 122A, V.C.S. In requesting our opinion relative to Chapter 17, Title 122A, V.C.S., y~ou propounded the following questlons: ‘<’ “Does the operation of the 303 stores by The Southland Corporation In the State of Texas constitute a continuous operation 80 as to place them under the licensing requirements and neces- sarily the penalties provision of Article 17.04, Title 122A, V,A,T,S.? “If It is a ruling of your department that this corporation does not come under this provision, rArticle 17.042 in view of the fact that they were physically operating their stores on December 31, 1960, January 1, 1961 and January, 2,. 1961; will the late flllng penalties prevail for not having com- plied with Article 17.01, Title 122A, V,A.T,S., requtring the securing of the llcenses before operation may be begun? ” You have given us a statement of facts concerning 303 stores or mercantile establishments which were jointly operated by Southland Corporation and Cabell’s, .Inc. prior to January 1, 1961. It appears that Southland Corporation, a foreign corporation, filed an application for certificate of withdrawal with the Secretary of State to be effective January 1, 1961. Honorable Robert S. Calvert, ,Page 2 Opinion No. WW-1032 Cabell’ a, Inc. entered its withdrawal of permit to do business in Texas as of December 31, 1960. Southland Corporation above ‘referred to will be referred to hereafter for convenience as “Original Southland Corporation”. This “Original Southland Corporation” ceased to exist as of January 1, 1961. Southland Corporation, hereinafter referred to as “New Southland Corporation”, Is a completely new corporation, which acquired all of the assets and liabilities of the “Original Southland Corporation” and Cabell@s, Inc. The “New Southland Corporation” became qualified to do business In Texas on January 1, 1961. Notwithstanding the fact that this successor corporation maintained the same name and the same.management, this was a different and completely new corporation which did not own or operate any stores before the first day of January, 1961. On January 3, 1961, it mailed an application for store licenses to the Comptroller together with a check for the license fees, which was received on January 4th and duly processed and deposited. Article 17.02, Title 122A, V.C.S,, provides that “Any. . .corporation. . .deslrlng to operate, maintain, open or establish a store. . .in this State shall apply to the Comptroller of Public Accounts for a license so .to do. . . .I’ Article 17.04, Title 122A, V.C.S., provides for the renewal of licenses by a corporation already In business before the first day of January and desiring to continue In business under a renewed license. This Article provides, for a late filing penalty of~5$ of the license fee If the application ‘is not received on or before December 31. It 5.s our opinion under the facts stated that the “New Southland Corporation” only~ commenced to do business on the first day of January, 1961. Therefore, this corporation was required to file application for license as provided by Article 17.02, V.C.S., and not for renewal of license as provided by Article 17.04. Your first question Is ther.efore answered in the negative . ‘8, Article 17.01, .V.C.S., provides, in part, that 11D . .it shall be unlawful for any. 0 e corporation. . .to operate, maintain, open or establish any store or mercantile establishment In this State without first .~ having obtained a license so to ado’from the Comptroller of Public Accounts as hereinafter provided.” Honorable Robert S. Calvert, Page 3 Opinion No. WW-1032 Although Article 17.01 states that It shall be unlaw- 2 ful to operate stores without first obtaining a license, the '~ Legislature has not provided a penalty for such unlawful opera- tion. The only penalties provided in Chapter 17# is in connection with the failure to file application for a renewal license on or before December 31st (Article 17.04) and for the operation of stores without having displayed in a conspicuous place in the store the license receipt for the current year (Article 17.09). As thesepenalties are not applicable by their terms to Article 17.01 your second question is also answered In the negative. SUMMARY : A :new ao~gona``o~,'.q~a~if~ed todo.business as of January 1, 1961, is required to apply for license to operate stores as provided by Article 17.02, Chapter 17, Title 122A, V.C.S., and not under Article~l7.04 which provides for renewal of licenses of corporations already in business. The late filing penalties provided for In Article 17.04, V.C.S., Title 122A, are not i applicable for the operating of a store without . first having obtained a license so to do from the Comptroller of Public Amounts. Yours very truly, WILL WILSON Attorney General of Texas JHB:jp Aaeietant APPROVED: OPINION COMMITTEE: W. V. Ceppert, Chairman Jack N. Price John Reeves L. P, Lollar John Leonarz REVIEWEDFOR THE ATTORNEY QENERAL Byr Morgan Nesbltt