                HEli              RNE~CGENERAL
                            Q,F      EXAS




                         suly   17 i 1967


Honorable Joe Reeweber                       -,
County Attorney
Harris Counts Courthouse                    Rei   Whether the County Clerk,
Houston, Texk                                     pursuant to Article   5569,
                                                  VeFnon’a Civil Statutes,
                                                  Is required  to approve
                                                  fl!ld public Warehousemen’a
                                                  bonds, and certain other
                                                  questions relating  to the
Dear Mr. Resweberr                                duties of the County Clerk,
          You have requested the oplnlon of this office    upon numerous
questions dealing with the dutiee of Oh6 Count Clerk in,connectlon
with the bonds and @&tificaDea                   %lit warehousemen pur-
                                  reqtiired of pL\
suant to the provleion~  df ArttlcLe 5569, Vernon ‘8 Clyil Statutes.
           The Pirat   questlbn   you have poaed ia set forth   as follows:
           “(1)  Ie the Countiy Clerk aaqulred by statute
     to perform the, dutieJ get oUt in the form l-etter,
     a copy of which IS attached,    I%i@ngdb Mr. R. T.
     Williams,  Dlrdtitor, ConeuNer Se*Xfce %lvikiion,
     Texae Department of Agrloulture?
In connection with the foregoing    questian,   you have stated that
the form letter    from $he Texae.DBpartment of Agriculture    indicates
that the County Clerk ha@ the foIlowing     duties In regard to the
bonds and certificated    of public warehoueement
           “(1) To aend aoplee of all certlflcatee,of
     Public Warehoueemen, latiued, by the Clerk, to the
     Texas Department of Agrioulturej
           “(2) To notify   the Texas Department of Agri-
     culture of all notlficatlons   received by the Clerk
     that a Public Warehouseman bond has been canceled;
Hon. Joe Resweber,     page 2     (~-106)


              "(3) To keep on file  in the Clerk’s           Office    all
     Public    Warehouseman Bonds filed therein,”
            Prior to the enactment of the Uniform Commercial Code,
which became effective   on June 30, 1966, the provisions        of Article
5569 and Article 5661, Vernon’s Civil Statutes,       set forth certain
duties and requirements In connection with bonds and certificates
of public warehousemen.    Article   5661 required public warehousemen
to file a bond in the amount af $5,000.00 with the County Clerk In
the county where he Intended to do business.       Article    5661 also pro-
vided ~that the County Clerk was to certify     the filing    of;the bond to
the Commissioner of Agriculture , and in addition,       Article   5661 pro-
vided ~that the.Commlssloner   of Agriculture   would ~prescrlbe the form
of the bond to, be mused, and that such bond should Abe good for e nerlod
of one ‘year from the date of flllng.     However, Section ‘lo-102 of
the Uniform Commercial Code repealed Article      5661, and as a result
the only statutory provisions     now remaining In connection with the
bonds and certificates   of public warehousemen are found In Article
5569.   Such  provlslons are  set forth as followe:
             “The owner, proprietor,       lessee or’manager
    : of any public       warehouse, whetheran ,indlvldual,
      firm or corporat%an,:-before        transacting     any         .‘,
      business in such, publla- warehouse ~!shalL procure 1,~
      from the aounty alsyk of:,the ,aounty. ,ln wh$eh the ‘i :;,
      warehouse or wharehouses are situated,             a certificate
      that he 1s transacting        business as a public ware-
      houseman under the laws af the State of Texas,
      which certificate       shall, be ls,sued by .sa,ld clerk
      upon a written applkcatlon;        .seftl,ng forth the
      location    and name of’such.warehouse          or warehouses,.
      and the name of, eaah ,person, :indlvidual          or a
      member of the firm; Interested          asp owner or principal
      In the management of the same, or, If the warehouse
      Is owned or, managedT:by,a corporation;           the name of the
      president,     secretary   and treasurer of-such corpora-
      tion shall be stated, which application             shall be.
      received and fl3ed by such clerk and, preserved In,
      his office,     and the sald certificate         shall give
      authority to carry on and conduct the business of
      a public warehouse and shall be revocable              only by
      the district     court of the, county In whiah the ware-
      house or warehouses are situated,            upon a proceeding
      before the court, by written petltlon             of any person,
      setting forth the particular          violation    of the law,
      and upon process,       proaedure and proof, as. In other
      civil   cases.     The person receiving       a certificate,        as
           .




Hon. Joe Resweber,         page 3 (M-106)


      herein provided for P shall file with the county
      clerk granting same, a bond payable to the State
      of Texas, with good and sufficient     surety, to be
      approved by said clerk,    in the penal sum of five
      thousand dollars,  conditioned   for the faithful
      performance of his duty a8 a public warehouseman,
      which bond shall be filed and preserved ln the office
      of such county clerk.”
             After a study of the foregoing   statutory provisions,
 we are of the oplnlon that Article    5569 places no-duty upon the
 County Clerk to send copies (of the certificates      issued to public
 warehousemen) to the Texas Department of Agriculture       or to notify
 the Texas Department of Agriculture of any notification       received
 by the County Clerk in connection wlth a public warehouseman’s
 bond,    However, we are of the oplnlon that the County Clerk Is
‘required. by Article  5.569 to flle and preserve those ,publlc ware-
 houseman bonds flled~ wlth’the ‘County Clerk.
               The second question      you have posed’ 1s set forth    as
follows:
            ‘(2)  If the Plrat question is answered in
      the negative in whole or In part, does the Commis-
      sioner of:the Texas Department of Agriculture
      have the authority to prescribe   such duties?”
            While the provisions   of Article 5611, Vernon’s Civil
Statutes,   and Article   5577a, Vernon’s Clvll’Statutes,  give to
the Commissioner of Agriculture     of the Texas Department of Agrl-
culture extension    duties ,and authority inconnection   with various
types of warehouse operations,     we are of the opinion that such
general statutory provisions     do not give the Commissioner of
Agriculture   the authority to prescribe    duties for the County Clerks
concerning bonds and certificates      of public warehousemen over and
above those duties required of the County Clerks by virtue of
Article   5569.
            However, the fact that the County Clerk has no mandatory
duty concerning bonds and certificates    of public warehousemen,
other than those duties set forth In Article     5569, would not pre-
clude the County Clerk from furnishing    certain information  or
assistance   to the Commissioner of Agriculture   lf the County Clerk
so desired.
               The third   question    you have posed 1s set forth     as
follows~

                                -   483 -
Hon. Joe Resweber,   page 4(M-106)


            “(3)   Is the County Clerk under a duty to
      approve bonds of public warehousemen only when
      such bonds are filed on a form prescribed    by the
      Commissioner of the Texas Department of Agrlcuiture,
      and to reject   such bonds filed on other forms?
            Prior to the enactment of the Uniform Commercfal Code,
the provisions   of Article 5661 set forth certain requirements in
connection with the bond required of public warehousemen,      One
of these requirements was that the form of the bond was to be
prescribed   by the Commissioner of Agriculture,   However 1 the
Uniform Commercial Code repealed Article    5661, and there no longer
exists the requirement that the Commissioner of Agriculture      pres-
crlbe the form of the warehouseman bond to be filed with the County
Clerk.
            In view of the foregoing, we are of the opinion that the
County Clerk may approve any bond filed by a public warehouseman,
regardless   of whether or not It is on a form prescribed  by the
Commissioner, If such bond meets the requirements set forth In
Article   5569.
           The fourth   question   you have posed is set forth   as
followsl
             “(4) Does either of the bond forms prescrzlbed
      by the Commfssfoner of the Texas Department af Agri-
      cu.lture$ copies attached 9 comply with the statutory
      requirements?”
            As concerns the bond to be filed by public warehousemen
with the County Clerk, Article     5569 provfdes In part that:
            I,    .a bond payable to the State of Texas>
     with good and sufficient     surety3 to be approved
     by said clerks in the penal sum of five thousand
     dollars,   conditioned  for the fait.hful perfo;mance
     of his duty as a public warehouseman, y y I
            Both the bond form prescribed    by the Commissioner of
Agriculture   prior to June 30, 1966, and the bond form prescribed
by the Commissioner of Agriculture     after June 30, 1966, specify
that the bond is payable to the State of Texas in the sum of five
thousand dollars    and conditioned upon the ffler   of such bond
faithfully   performing his duty as a public warehouseman. In
these respects> we are of the opinion that each of the bonds
comply wfth the statutory requirements of Artiicle 5569”

                             - 484 -
Hon. Joe Resweber,   page 5    (M-l06),


            However,  the bond form prescribed    p$ior to June 30,
1966, contains the additional__ condition
                                      -      that    . . .the
                                                          _   same iz to
remain in full force ana ersect for one year from date. . . ;’ and
the bond form pzescrlbed    after June 30, 1966, contains the additional
condition   that   e D .the same is to remain In full force and effect
until notification    of cancellation   or notice of failure   to renew is
received by the Ttxas Department of Agriculture        from the Clerk of
the County Court.
           We are of the opinion that the bond form prescribed     prior
to June 30, 1966, met the statutory requirements In its use prior
to June 30, 1966, for the reason that prior to June 30, 1966, Article
5661 provided for a one (1) year bond. However, we are of the further
opinion that after the repeal of Article    5661, which was effective
on June 30, 1966, the bond form prescribed    prior to June 30, 1966,
would no longer comply with the statutory requirements,    as Article
5569 does not provide for a time limitation    upon the bond.   Con-
sequently,  the bond form prescribed  by the Commissioner of Agri-
culture prior to June 30, 1966, would not meet the statutory re-
quirements of Article   5569 if used after June 30, 1966.
            As to the bond form prescribed     by the Commissioner of
Agrlaulture   for use after June 30, 1966, we are of the opinion
that the provision   in such bond form, that the bond was to stay
in full force and effect    until notification    of cancellation or
notice of failure   to renew we- receSved by the Texas Department of
Agriculture Contains a condition    not provided in the statute.
           Furthermore, such a superadded condition    which the statute
does not require and which would limit or avold or measure liability
by the giving or receipt  of notice Is withouteffect     and would be
invalid.   United States Fidelity   Co. v. Poetker, 180 Ind. 255, 102
N.E. 372 (1 1     w t     C      & Guaranty Ins s do. v. Board of
Commissione~s~)&O ~~1??14~~‘15p     P. 655 (lglb) * In the latter   case,
In which a notice requirement was placed In a statutory bond and
not provided for in the statute,    the Court said:
            “Here the statute fixes the conditions     of
     the deposZtory bond e y .The Board has no authority
     to waive any part of the statute nor add anything
     to Ii;.   The bond In controversy,   as executed,    con-
     tains all the conditions    required by the statute,
     with the addition of a condition requiring      notice,
     which tends to modify the statute and to limit
     the liability,    This additfonal   condition,  we think,
     may not be imposed,”     (159 P. 659)


                              - 485 -
Hon. Joe Resweber,         page 6 (w-106)


               The fifth    question   you have posed is     set forth   as
follows:
                “(5)   Does the form of application  for cer-
        tificate     of public warehouseman, a copy of which
        Is attached,     comely with the requirements of Article
        5569, V.A.C.S.7”~
              Article    5569 provides in part that:
               n
                     .rhlah certlflcate  shall be issued by
        said clerk upon a written appllcatlon,       setting
        forth the looatlcn     and name of such warehouse or
        warehouses, and the name of each pergon, Individual
        or a member of the firm, Interested      as owner or
        principal    in the management of the same, or, If
        the warehouse is owned-or managed by a corporation,
        the n+uneof the president , secretary     and t;easurer
        of such carporation     shall be stated.  , , ,
            After a study of the application form attached, which
was prescribed   by the Texas Department of Agriculture,  we are of
the opinion that it complies with the requirements of Article
5569, as 8UOh application   form pravides for the setting forth of
the lnformatlon   required by Art1al.e 5569.
               The sixth   and seventh      questions   you have posed are set
forth      as follows:
             “(6) Does the County Clerk have any duty
        with respect to an application   for public ware-
        houseman,. tendered to him, other than the filing
        of same?”
               “(7) Does the     County Clerk have any duty
        with respect to the      bond submitted with the ap-
        plication  mentioned     in (6) above, other than the
        approval and filing      of such bond? N
             After a study of the provlslons     of Article   5569, we are
of the oplnlon that a County Clerk has the duty, prior to issuing
a certificate     to a public warehouseman, to ascertain      whether the
application    for such certificate    contains t.he Information required
to be set forth in the application       by Article    5569.      In addition,
the County Clerk should examine the bond filed with the application
to ascertain     whether it complies with the requirements set forth In
Article    5569. If both the application      for certificate   and the bond
meet the requirements of Article 5569, then the County Clerk is re-
quired to Issue a certificate       to the public warehouseman, The bond
                                  - 486 -
  -.     .




Hon. Joe Resweber,     page 7 (,M.+l.C$)


and the application  for the certiffcate    are required to be filed
by the County Clerk, and In addition , such bond and application
are to be preserved In the office     of the County Clerk.
                         SUMMARY
             The County Clerk has no statutory, duty, pur-
       suant to Article   5569, to send copies of certificates
       Issued to public warehousemen to the Texas Depart-
       ment of Agriculture   or to notify the Texas Depart-
       ment of Agriculture   of any notiflcatlons,the   County
       Clerk has received concerning a public warehouseman’s
       bond.
            The Commissioner of Agriculture  has no authority,
       to prescribe  duties for County Clerks concerning
       bonds and certificates  of public warehousemen over
       and above those duties set forth In Article   5569.
             The County Clerk may approve any bond flied
       by a public warehouseman so long as such bond meet,s
       the requirements of Article  5569. Such bonds do
       not have to be in the form prescribed  by the Com-
       missioner of Agriculture.
            Neither of the bond forms submitted       presently
       comply with Article 5569.
             The application   for certificate  f,or public
       warehousemen prescribed    by the Commissioner of
       Agriculture   complles~wlth the provlslons    of
       Article   5569.
             A County Clerk has the d.uty, prior to Issuing
       a certificate  to a public warehouseman, to ascertain
       whether the application   for such certificate  and
       the bond filed with such application    meets the re-
       quirements of Article   5569. The County Clerk also
       has the duty to fl.le and preserve the applications
       and bonds filed with him by public warehousemen.
                                 V&truly     yours,




Prepared by Pat Bailey
Assistant Attorney Qeneral
                             - 487 -
                                     .-   -




Hon. Jae Reaweber,   pae;e 8 (M&6)


APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
John Fainter
Howard Fender
Dyer Moore, Jr.
John Reeves
STAFF LEGALA$SXBTANT
A, J, Carubbl, Jr.
