                     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
