Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE A-ITORNEY GENERAL OF TEXAS
AUSTIN
Honorable U. 0. ylowers
Seoretary of State
tinatin, Texas
Dear Sir: Attention: iir. i?nais C, Favors
Opinton 30. o-72
He: Calculation of revi& fees
for corporatie who3e\rlght
to do business h.ls\bpeeh.
forfeited for r3ilury to'
py frs&shlse tax. .I'
\_
'XIare in receipt.df your la&t@ of Xovember 14,
1939, in which you submit the,icrllowinrj~/question to this De-
partment ror a5 opinion: I,
\.
Wmul& iha. 3ecrebar+ ~of State,
the SIX months
he figure and
for the entire
Artlole 7089, pro-
f Maroh of eaoh year, and imposes a
anwunt of the framhise tax for failure
Thereafter, on the let day of Xang the
e and payable to the Seoratarg of State
if the tax is not aaid :-rhendue, the tax-
payer then beooaes liable for an additional penalty of ZS$
of the amount of the tsx for late paDent (mt. 7091). The
Secretary of State is required, during the mnth of zay, fo
notify eaoh corporation which ha3 failed to pay its franchise
tnx on or before the 1st day of Ay, that unless such tax is
paid, together with penalties thereon, before the 1st day of
,
,
p
Honorable 3. C. Flowers, Page 2
July next following, the right of suoh corporation to do busi-
ness in this State will be forfeited without judicial ascertaia-
;nent (Art. 7092). suoh rorreiture being accomplished by noting
upon the records of the Offiae of the Secretary of State the
words **right to do bUSiUeS8 forfeited." (Art. 7091).
The method of reviving the right of such corporation
to do business is provided in Article 7092, which reads, in
part, a8 rOliOWS:
"Any corporation whose right to do
business say have been forfeited, 9s pro-
vided in this chaoter. shall be relieved
be less than five dollars. When 8UCh tax
and all penalties shall be fully paid to
the Secretary of State, he shall revive
the right of the corporation to do business
within this State by canoelling the words,
'right to do business forfeited,' upon his
records and endorsing thereon the word,
'revived,' and the date of such revival.
If any domestio corporation whose right to
do business within this State shall here-
after be forfeited under the provisions of
this chapter shall fail to pay to the
Secretary of State, on or before the first
day of January next following the revival,
(forfeiture) the amounts neoessary to en-
title it to have its right to do business
revived under the provision6 of this chap-
ter, such failnre shall constitute sufficient
ground for the forfeiture, by judgment of
any oourt of cospetent jurisdiction, of the
charter of such do:aestic corporation."
Article 7095, ;ievised Civil Statutes, i.925, provides,
in part, 3s follows:
:-Ionorable:ii.0. Flowers, Page 3
"The Attorney General shall bring
2ui.t therefor against any corporation
which may be or beoome subject to or
liable for any franchise tax or penalty
under this law; and, in ease there may
now be or shall hereafter exist valid
grounds for the forfeiture of the charter
of any domestic private corporation, or
failure to gay any franchise tax or
franchise taxes or penalty or penalties
to whioh it may have become or shall
hereafter be or become subject or liable
under this or former law, he shall bring
suit for a forfeiture of such charter;
* * *o
It was held in Federal Crude Oil Com~ny vs. Pount-
Lee Oil Company (Supreme Court, 1930), 52 S. 1:. (2d) 36, that t/
the language contained in Article 7092 quoted shove, providing
that the frsnchisq tar,and penalties due might be paid at any
time within six mnths after the'forfeiture, is directory, and
that the corporation may be relieved of the forfeiture by gay-
ing the franchise tax with accumulated penalties after the six
months period if at %he time payment is made the State hIa.not
availed itself of its right to bring suit against the corpora-
tion for the purpose of forfeiting its charter.
As we construe this statute, the six msntha aroviaion
does not refer to or fix a liait upon the time for calculating
the five ger cent per month revival fee, but is a limitation upon
the right of the State to forfeit the charter. It was intended
to allow the delinquent corporation six months from the date of
the forfeiture within which to revive its right to do business
and during such six months period, the Attorney Genera1 is with-
out authority to institute a suit to forfeit the cor_;roratechar-
ter and dissolve the corporation by reason of its failure to
pay the franchise tdx.
This oonstruotion is in accord with the conatruotion
and application of the statute made by the Secretsry of State
over a long period of time and we would not be justified in
departing therefrom unless good reason existed for such lotion.
I+* is our opinion that the Secretary of Ztsts should
collect a revival fee from a corporation whose right to do
business has been forfeited for failure to >a:r its r’r,mchise
tax, at the rate of 5;J per month, or frzatiocal ,art of 1
month for the entire period Prom the date of forfeiture until
*.
..
Honorable X. 0. Flowers, Tage 4
the accrued tax and penalties are aaid, rlthoua sapent :nay
be aade lore than six sonths after the date of forfeiture.
Yours very truly
ATI'ORNEY G3ERAL OF TEXAS
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