                                  The Attorney        General of Texas
                                                 Sl:ptember25, 1985
JIM MATTOX
AttorneyGeneral


Supreme
      Court
          Building
                                 Eooorablc Mike Dr:Lscoll         Opinion No. ~~-357
P. 0. BOX 1254S                  Rarrls County Attorney
Austin, TX. 78711. 2548          1001 Preston, Suite 634          Re:    County clerk's duties pursuant
512i4752501                      Houston. Texas   YiOO2           to Rouse Bill No. 385, 69th Legisla-
Telex 910/874-1367
Telecopier  51214750286
                                                                  ture, 1985. codified as Business and
                                                                  Commerce Code, sections 17.81 through
                                                                  17.93, which regulates going-out-of-
714 Jackson, Suite 700                                            business sales
Dallas. TX. 75202.4506
214/742-6944
                                 Dear Mr. Driscoll:

4824 Alberta   Ave., Suite 180        You ask several questions about a county clerk's duties under a
El Paso. TX. 799052793           recent law that regulates going-out-of-business sales. E.B. No. 385,
915/53334s4                      Acts 1985, 69th Lhl:., ch. 172, at 920 (to be codified as Bus. & Coarm.
                                 Code, 1517.81 through 17.93). Under the new law anyone who represents
1001 Texas,    Suite 7M)
                                 that a sale is in anticipation of the termination of a business must
Houston.   TX. 77002.3111        file various inventories and obtain a permit in order to conduct the
71312235886                      sale. A person who intends to couduct such a sale must first file an
                                 original inventory with the county clerk of the applicable county.
                                 Id. 117.83. The filing fee for the original inventory is $20. Id.
806 Broadway, Suite 312
Lubbock. TX. 79401.3479
                                 After the original inventory is filed, the clerk must issue a sale
8061747.5238                     permit. Id. 517 $84. For each 30-day period during the sale the
                                 permit-holder musi:file a sale inventory, and within 30 days after the
                                 end of the sale, he must file a final inventory. -Id. 0117.86, 17.87.
4309 N. Tenth. Suite S
McAllen. TX. 78501-1685
512/682-4547
                                      In your requezst letter and in subsequent correspondence you ask
                                 the following questions regarding Eouse Bill No. 385: (1) what
                                 information should be included in the permit issued by the county
 200 Main Plaza. Suite 400       clerk; (2) may the county clerk charge a fee each time an inventory is
 San Antonio, TX. 782052797
                                 filed as well as s fee for issuance of the permit; (3) how long must
 512/2254191
                                 the county clerk re:tainthe inventories and where should they be kept.

 An Equal OpportUnitYI                Eouse Bill NIJ. 385 contains the following language in regard to
 Affirmative Action Employer     the petit to be is,suedby the county clerk:

                                              (a) A.ftcrreceiving an original inventory, the
                                           county clerk shall issue to the applicant a permit
                                           for a gxlng out of business sale. The permit is
                                           valid fclr120 days after the day that it is issued
                                           and is r:atrenewable.




                                                            p. 1632
Aonorable Hike Driscoll - Page 2    (JM-357 )




             (b) The permit holder must post the permit in
          a conspicuous pla,:e at the location of the going
          out of business ss,le.

             (c) Before advertising a going out of business
          sale, the permit holder shall deliver a copy of
          the permit to the person publishing or broad-
          casting the adverl:isement.

Id. 517.84. The legislature did not specify the form or the content
ofthe   permit, but it obviously intended that someone who sees a
permit should realize that the person conducting the sale is subject
to a law that regulates go:.ng-out-of-businesssales. In order to be
useful, then, the permit should contain at least the following
information: the name and address of the person to whom it was issued,
the location of the sale, t'xedate on which the permit was issued and
the date on which the permit expires, the fact that the permit is not
renewable, and the fact that the sale is governed by House Bill No.
385.  A county clerk may exercise some discretion in designing the
permits. In doing so, however, he should bear in mind the purpose of
the permit.

     The original invento,ry filed with a county clerk must be
accompanied by a $20 filing !:ee. Although Bouse Bill No. 385 requires
the filing of subsequent irventories with the county clerk and the
issuance of a permit by the county clerk, it does not set any other
fees to be charged by the county clerk. You suggest that the $20 fee
is for the filing of the c~riginal inventory only and that a clerk's
authority to charge addit::onal fees for the permit and subsequent
inventories is to be found in article 3930(10). V.T.C.S., which
authorizes and requires county clerks to charge reasonable fees for
"such other duties prescribed, authorized, and/or permitted by the
Legislature for which no fee is set by this Act."

     First, it is important to note that although article 3930(10)
allows a clerk to charge r'sasonablefees for duties for which no fee
is set "by this Act," that language does not permit a clerk to ignore
fees set by other statutes. Rather, when another statute sets a fee
to be charged for a service rendered by a county clerk, the fee set is
a legislative determination of what is a reasonable fee for the
services rendered. A clerk may not disregard that determination. -See
Attorney General Opinion MU-452 (1982).

      IU our opinion the legislature intended the $20 fee paid at the
 time the original inventory is filed to cover all the services
 rendered by the clerk contemplated by Bouse Bill NO. 385. The fact
 alone that the statute makes no mention of any fee other than the $20
 fee to be collected the first time the clerk renders any service to an
 applicant suggests that the legislature intended the $20 fee to be the
 only fee for services renifzredby a county clerk pursuant to Douse



                                   p. 1633
t

    Honorable Mike Driscoll - Page 3 (JM-357)




    Bill No. 385. Also, the amount of the fee set in Rouse Bill No. 385,
    by comparison to the filing:fee iu the prior statute OP the subject,
    indicates that the 1egislal:ureintended it to be the only fee. The
    prior law governing going-aut-of-business sales required an applicant
    to file an inventory "togethterwith a filing fee of $2" with the city
    or county tax assessor or collector in order to obtain a sale permit.
    At the expiration of 120 dars the permit-holder could obtain a renewal
    permit by filing another inventory and paying a "renewal fee" of two
    dollars. Acts 1967, 60th Leg., ch. 434, at 1004 (codified at art.
    9011, V.T.C.S.; repealed by H.B. No. 385). The prior law required
    neither sales inventories nor a final inventory. Under that law each
    $2 fee was a charge for the filing of one inventory and the issuance
    of one permit. The increase in the filing fee from $2 for filing one
    inventory and the issuance of one permit by a tar assessor under the
    prior law to $20 for sim1l.a.r but expanded service by county clerks
    under the new law indicates that the legislature took into account the
    numerous filings required under the new law and the burden those
    filings would place on counl:yclerks aad that the $20 fee was intended
    to cover all services rendered by a clerk pursuant to Rouse Bill No.
    385. This one-time fee is analagous to the initial fee paid to cover
    various services rendered b.r the clerk in court uroceedinas. See.
    a,     V.T.C.S. art. 3930(.,ji(B)(l)(a)(i)(setting~initial feesfor
    various probate matters); ---
                               888salso Rodeheaver v. Aldridge, 601 S.W.2d
    51, 54, (Tex. Civ. App. -' Houston [lst Dist.] 1980, writ ref'd
    n.r.e.). "Thus, the statutory fee is, in effect, an advance payment
     for the cost of services which have not been rendered at the time the
     fee is collected." Id.      'Furthermore, fee statutes are strictly
     construed, and fees are not permitted by implication." Attorney
    General Opinion SW-346 (1981i)'(see
                                    -   cases cited therein).

         Finally you ask how loag the county clerk must retain the iaven-
    tories and where the inventories should be kept. House Bill No. 385
    makes no provision for the destruction or return of the inventories.
    Cf. Bus. 6 Comm. Code 536.14. (provides for the withdrawal of assumed
    Ge   certificates from the :cecordsof the county clerk). Thus, the
    county clerk must retain the: inventories unless they are microfilmed
    in accordance with article :.941(a),V.T.C.S.

         From our correspondenc,ewith you we understand that you are
    referring to the seven clane,esof records set out in article 1941(a)
    when you ask where the inven,toriesmust be kept. The decision to put
    public records on microfilr in accordance with article 1941(a) is in
    the sole discretion of the county clerk. If a clerk chooses to do so,
    however, he must organize the records according to the seven classes
    listed in article 1941(a), section 2(b). Because inventories filed
    pursuant to Eouse Bill No. 385 do not fit into any of the other
    classes listed, they should be recorded in the class for miscellaneous
    records, which is known as "Official Public Records of Governmental,
    Business and Personal Matte%."   V.T.C.S. art. 1941(a), 52(b)(7).




                                     p. 1634
Bonorable Mike Driscoll - Page 4 (JM-357)




                               SUMMARY

             The legislatwe did not prescribe a specific
          form for the pernit to be issued pursuant to Rouse
          Bill No. 385. The form of the permit should make
          clear that a pc:rson conducting a going-out-of-
          business sale is subject to Eouse Bill No. 385.
          The $20 fee covers all services of the clerk
          required by House!Bill No. 385. The county clerk
          must retain thlt inventories unless they are
          microfilmed in rtccordance with article 1941(a),
          V.T.C.S. If the i,nventoriesare microfilmed. they
          should be put in the class for miscellaneous
          records. V.T.C.S. art. 1941(a), 02(b)(7).




                                         Attorney General of Texas

TOM GREEN
First Assistant Attorney Goneral

DAVID R. RICBARDS
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICE GILPIN
Chairman, Opinion Comnitte~!

Prepared by Sarah Woelk
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk




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