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Hon. Sidney Letham
Secretary of state
Austin, Texas

Dear Sirs

                                 Opinion No, O-6312
                                 Res Suffioiency of forma for notice of
                                      franahise tax liens under the provi-
                                      sions of House Bill No. 841, Acts 48th
                                      Legislature, 1943, and related matters.

         ylk,
            are in receipt of your letter of July 1, 1943, together with
 the four forms transmitted therewith., Two of these forms are denominated
"Notice of Franchise Tax Lien"8 one is designed for use where the amount
of the tax is known, and the ether is designed for u8e where the amount of
the tax is not known. The other two forms are denominated, respectively,
"Release of Franchise Tax Lien," and "Partial Release of Franchise Tax
Lien."

         The above named forms were prepared pursuant to the provisions of
House Bill No, 641. Acts 46th Legislature. 1943, which require8 the Secre-
of State to file notiae of lien to 8eoure the payment of franchise taxes
due under the provisions of Chapter 3 of Title 122,.R. C, S., 1925, and
authoriaes him to execute aomplete or partial release of such liens upon
payment thereof. Said II,B, No, 641 require8 that such forms be approved
by the Attorney General.

         You request the advice of this department in response to the fol-
lowing questionsr

         "1.   Are   the four form8 suffioient for the purposes intended?

         "2. Should the forms be acknowledged or 8worn to, or is the
signature of the Secretary of State under the Seal of State a sufficient
authentication to entitle the instruments to recordation?

         "3 0 Will the State be liable for the payment of a fee for filing
 and recording these instnunents, and, if 80, in what amount will the
County Clerk be entitled to charge therefor?

         "4. If you hold that the County Clerk is entitled to colleot a
filing and reaording fee, then Is this Department authorized to pay such
fees out of it8 appropriation for 'aontingent expensess being item 38, page
Hon. Sidney Latham, page 2     O-5312



1011, Volume 6, Vernon's Texas Session Law Service, 19437

         "5. Since the notioe of lien Is to be filed, recorded and indexed
both e8 a chettel mortgege end e8 8 mortgage on reel estate, should the
County Clerk retain the original instrument in his offioe es is done in the
case of e chattel mortgage, or should it be returned to this office es in
the da88 of e mortgage on reel estate?"

         The pertinent parts of H, B, No, 641 reed es follonsr

         "Article 70690 - Secretary of State Authorized to Record,

         "The Seoretery of State shell file end record with the Clerk of
 any County in which he has reescn to believe sny corporation owing fran-
chise taxes, penalties end interest, has reel or personal property e nc-
tice of the taxes, penalties end interest eocruing under this Chapter end
the liens securing the same on e form prepared or approved by the Attorney
General of the Stete of Texas showing the name of the corporation owing
suah taxes, penalties end interest, the franohise taxes then due end owing
and oalling ettention to the possible additional tares, penalties and in-
terest which might accrue in the future under the terms of this Chapter.

         "Article 7069d - Recording end Effect thereof, The County Clerk
of each county is hereby authorized to end rhall file, record end index
the notice provided for by the preceding paragraph, both es e Chattel
Mortgage end es e mortgage on reel estate in eooordanoe with the statutes
in such oases made end provided end when 80 filed, recorded end indexed,
the same shell be end constitute notice to all parties da8ling with the
real end personal property of such corporation in said county of the taxes,
penalties and interest then accrued end to accrue in the future end of the
liens herein granted the State of Texasan

         For convenience we era attaohing to this opinion copies of the
four forme, which we have marked, respectively, "Exhibits 'As, 'El0 eC",
 end 'Da," We have emended Exhibit "A", but the other three forms remain
es submitted to us0

         :7othink that eaoh of said four forms attaohed hereto is in ccm-
plience with the provisions of said Y, B, 641, end that each is sufficient
to accomplish the purpose for which it maa designed. Consequently, we
enswer your first question in the affirmative, end approve seid forms as
being in ccmplienoe with suah statute.

         Wo are of the opinion that it is not necessary that such forms be
acknowledged or swcrn to, but that under the provisions of Ha B, 641,
quoted above, the signature of the Secretary of State, under the seal of
the State of Texas, is a sufficient authentication to entitle the instru-
ments to be recorded, end to require the clerk to acospt end record same0

         No provision is made in this stetute for the payment of any fees
:    -




    Hon. Sidney Latham, page 3     o-5312



    for filing and reaording eny of the instruments r&ired   to be filed end
    recorded by the Secretary of State, In the absence of such e provision we
    think that the Stete is not liable for the payment of such fees, end that
    this is but another sx officio duty imposed upon the county clerk. Sinae
    such duty is to be performed on behalf of the State end without the benefit
    of any provision of law for the payment of any fees for such service, the
    county clerk would not be entitled to make any charge for suoh services,

             The law requires that the notioe of lien shell be filed, recorded
    and indexed both es 8 chattel mortgage end es a mortgege on reel estate.
    Since this is true, in order to eomply with the chattel mortgage statutes,
     it will be necessary for the county clerk to retain e copy of such lien
    in his files, You shculdtierefore send such notice of lien, in duplicate,
    to the county clerk where it is to be recorded, in order that such county
    clerk may retain one copy, end that he may record and show on the other
    such copy the date end plaoe of recording same, end at the sems time, by
    his certificate indicate that same has been recorded in the chattel mort-
    gage records of the county, end that a true copy thereof is on file in his
     office.

             It should be noted that this opinion simply passes upon the suf-
    ficiency of the forms hereto attaohed end is responsive only to the ques-
    tions asked,

             Trusting that the above fully enswors your inquiry, wo are

                                                     Yours very tNly

                                                  ATTORNEY GERERAL OF TEXAS



                                                   By S/Fcwler Roberts
                                                             Fcwlsr Roberts
                                                                  Assistant

    FRn ARM/WC

    APPROVED JULY 31, 1943
    s/Grover Sellers
    FIRST ASSISTANT
    ATTORNEY GENERAL

    Approved Opinion Committee By BWB Cheirman
