                      The Attorney                 General of Texas
                                     September      14,    1978

JOHN L. HILL
Attorney General


                   Honorable Henry Wade                           Opinion No. H-1243
                   District Attorney
                   Sixth Floor, Records Building                  Re: Whether the county clerk is
                   Dallas, Texas 75202                            required to mail notice required
                                                                  by section     36.13(e) of the
                                                                  Business and Commerce      Code
                                                                  when the commissioners     court
                                                                  has declined     to appropriate
                                                                  money for that purpose.

                   Dear Mr. Wade:

                         You have requested our opinion regarding the duty of the county clerk
                   to mail the notice required by section 36.13(e) of the Business and Commerce
                   Code. That statute provides:

                              The county clerk of each county shall notify in writing
                              each person that has conducted a business under an
                              assumed name and for which an assumed name
                              certificate  has been filed in the office of that clerk
                              pursuant to Articles 5924 and 5924.1, Revised Civil
                              Statutes of Texas, 1925, prior to the effective date of
                              this chapter, that under the provisions of Subsection
                              Cd)of this section the certificate shall become null and
                              void after December 31, 1976, unless a new certificate
                              is filed that complies with the provisions of this
                              chapter.    The written notice shall be effective by
                              being deposited with the United States Postal Service,
                              addressed to the name of the busmess at the office
                              address given in the certificate as last filed.

                   (Emphasis added).     Section 36.13(e) clearly requires the county clerk to
                   provide a mailed written notice to each assumed name certificate holder, the
                   number of which you estimate to be 140,000. You state that the clerk has
                   requested an additional appropriation     of $22,100 to cover expenditures
                   required by the statute, of which $14,100 represents the cost of postage, but




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Honorable Henry Wade      -   Page2    (H-1243)



that the Commissioners Court of Dallas County has declined to make any funds
available for this purpose. You ask whether, in these circumstances, the clerk must
comply with the statutory requirement.

       Section 36.13(e) directs the clerk, in absolute terms, to furnish the requisite
notice. In Attorney General Opinion H-595 (19751, we held that, where a statute
requires the sheriff to “execute all process,” an “inadequate operating budget will
not excuse [his] failure to execute process directed to him.” In our opinion, this
principle is equally applicable to your inquiry. The clerk cannot be relieved of his
duty under the statute merely because his budget is limited.

       On the other hand, we believe it is the duty of the commissioners court to
provide adequate funding to enable a county officer to carry out a statutory
directive.   In Attorney General Opinion H-499 (19751, we held that a commissioners
court is “under a duty to budget and order paid the amount of any reasonable
attorney’s fees properly set by a criminal court judge pursuant to article 26.05” of
the Code of Criminal Procedure.       In Attorney General Opinion H-544 (19751, a
commissioners court refused to pay the expenses of a court of inquiry. We said
that a district judge having statutory authority to conduct a court of inquiry may
obligate a county to pay any reasonable expenses related thereto.

        Since the clerk is himself without authority to incur any expense on behalf of
the. county without the approval of the commissioners court, we believe that his
alternative is to seek judicial relief, in the form of mandamus seeking to direct the
commissioners court to appropriate funds for fulfilling the statutory requirement.
In Commissioners Court of Hays County v. District Judge, 22d Judicial Dist., 506
S.W.%d 630 (Tex. Civ. App. - Austin 1974, writ rePd n.r.e.1, a statute authorized a
district judge to fix the salaries of probation officers, who were then to be paid
from county funds. When the commissioners court refused to provide the full
amount requested, the judge sought, by mandamus, to compel it to appropriate the
specified sum.       The trial court’s order granting mandamus was upheld by the
appellate court.

       You also ask about the liability of the county clerk for noncompliance with
the terms of section 36.13(e). Although the Business and Commerce Code imposes
no liability on the clerk for failure to comply, such omission might constitute an
offense under section 39.01 of the Penal Code. In addition, the clerk might be
liable to a potential recipient of the statutory notice who was injured by the clerk’s
omission. Whether civil or criminal liability would arise in any particular instance
of coume requires a determination    of facts which are not before us.

                                   SUMMARY

           A county clerk has a duty to provide mailed written notice
           to all assumed name certificate     holders under section
           36.13(e) of the Business and Commerce Code, and he is not

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        Honorable Henry Wade    -   Page3    (H-1243)



                  relieved of this duty because of budget limitations. It is the
                  duty of the commissioners court to furnish the clerk with
                  funds sufficient to carry out hi responsibilities under the
                  statute.




        APPROVED:




        Opinion Committee

        jsn




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