Untitled Texas Attorney General Opinion

Hen. J. W. Falkner Opinion No. C- 31 Commissioner Department of Banking 'Re: Construction of Sec- Austin, Texas tion 4 and 5 of - -_I. Article 1yNA, Vernon's Civil Statutes; narti- cularly concerning the operation of the Dear Mr. Falkner: proviso in Section k. You have requested the opinion of this office as to whether or not your departmental interpretation of Sections 4 and 5 of Article 1524A, Vernon's Civil Statutes, is correct. Sections 4 and 5 of Article 1524A provide as follows: "Annual publication or filing of statement of financial condition. Sec. 4. Such corporation. . . .shall publish in some newspaper of general circulation in the county where it has its principal place of busi- zess, on or before the 1st day of February each year, a statement of its condition on the pre- vious 31st day of December, in such form as may bz re~~ired by the anking Commissioner of Texas, s;howingunder oath its assets and liabilities, and shall file a copy of such statement with the Zanking Commissioner of Texas together with a fee of Twenty-five ($25.00) Dollars for filing. Provided, however, that the Banking Commissioner r{Aq, for good cause shown, exLend the time 01 Fulication and filing not more than sixty (501 clays. Such corporation. . . .shall fiie with the Inking Commissioner of Texas on or before the 1st day of February of each year a statement of its condition on the previous 3lst day of Dec- ember. . . . -134- . . . . Honorable J. W. Falkner, Page 2 (C-31 ) Provided, however, that the Danking Com- missioner may, for good cause shown, ex- tend the time of publication and fil= not more than sixty (60) days. (Emphasis supplied.) Penalty for failure to publish statement. Sec. 5. If any such corporation shall fail to comply with Section 4 of this Act in the manner and within the time required, such failure shall subject such corporation to a penalty of not less than Two Hundred $200.00) Dollars nor more than One Thousand t$1000.00) Dollars, which shall be collected at the suit of the Attorney General if not paid within thirty (30) days after February first of each year." Your letter requesting this opinion reads in part: "It is our interpretation of the statute that we are not authorized to grant an ex- tension of time for filing unless the request for the extension, showing good cause therefor, is made on or before February 1. If the State- ment is not filed and a request for extension is not made on or before February 1, the statutory penalty is automatically inc-urred,in our vie>I. Where a Statement is filed subsequent to but within sixty (60) days after February 1, and a request is made at the time of filing for an extension to be granted retroactively from Febnl2ry 1, it is our position that we do not have discretion or authority to consider the request." Tie o+uestionpresented here is simply whether or not an extsnsion of time for filing a statement of condition, as pro- vided in the proviso of Section 4, can be made by the Danking comm.ssioner after February 1st. I:'efeel that your above quoted interpretation is correct; that, assuming there is no filing of the statement, an extension of time for such filing must be rade on or before February lst, or the extension of time xi11 not be allowed and the penalty provided in Section 5 will be incurred. -135- . . Honorable J. W. Falkner, Page 3 (C- 31 ) It appears from the language of Section 4 that the pro- visions were intended to be mandatory; they provide that such corporations "shall" file such statements on or before February lst, unless the Banking Commissioner allows an extension of that time for good cause shown. With ,respectto statutes imposing criminal sanctions or penalties, the rule has been stated with particular clarity that, "Where a legislative provision his followed by a enalty for failure to observe it, the provision Is mandatory".E This rule.of statutory construction certainly is applicable to the statutory provisions here involved. Further, when a statute directs thin s to be done by a private person (as opposed to a public officerB within a specified time, and makes his rights dependent on roper performance thereof, the statute is held to be mandatory. 5 Therefore, the provision in Section 4 for filing a statement of condition on or before February 1st must be strictly complied with, unless an extension of time Is made~by the Banking Commissioner for good cause shown. In'City of Corpus Christ1 v. McClangherty, 284 S.W.2d 927 (Tex. Civ. ADD. 19%. _--_ error ref.). the court held that a statutorv amendment~prb~iding an exception-to a provision of the amended - statute must be strictly construed. This rule readily applies to the provisos of Section 4, since they were added by amendment in 1943. (Acts 48th Leg,, 19113,ch. 95, p. 125). Also, Texas Jurisprudence states that a proviso is to be s rictly applied and not to be extended beyond its plain terms.5 In 15A Words and Phrases 615, "extend" is defined as meaning to stretch out or to draw out or to enlarge a thing; it implies something in existence; "extend" is a transitive verb requiring an object. Tnerefore, before the Banking Commissioner can extend the time of filing, there must be something In existence to extend. In other words, if a new filing date were to be set after February lst, it wouid be the mere setting of a new and armry date and not the prolongation of,a fixed date. i3 Sutherland on Statutory Construction (3rd Ed. 1943 p. li0. 2Ibid., p. 107. 339 Tex. Jur. 277, Statutes, Sec. 148. -136- Honorable J. W. Falkner, Page 4 (C- 31 ) In Rodda v. Rodda, 185 Or. 140, 202 P.2d 638’(1949), the court stated: "Where, as is frequently if not usually the case, the statute reads that a court may 'extend' the time granted for doing an act, it is uniformly held that the order mast be made within the statutory time, because, as the court said in State v. Scott, 113 MO. 559, 20 S.W. 1076, 1077 (1893): 'The word 'extended', as employed in this statute, means lprolongedl; and of course a prolongation of time cannot occur after the time originally limited has expired.'" To the same effect see State v. Cut- berth, 203 MO. 579, 102 S.W.~658 (1907); Schlosser Leat'nerCo. v. Gillespie, 157 Term. 166, 6 S.W.2d 328 (1928); Crane Enamelware Co. v. Smith, 168 Tenn. 203, 76 S.W.2d 644 (1934); Coast Electric Service, Inc. v. Jensen, 111 Cal.App. 124, 295 P. 346 (1931). The Ranking Commissioner should not, therefore, grant an extension of time for the filing~of a statement after the time for filing has already elapsed. SUIQVRY Under the terms of Section 4 of Article 152411, V.C.S., the failure to either file a statement,or obtain an extension of time for filing on or before February 1 of each year subjects the corporation to the penalty provided in Section 5 of Article l52kA. Yours very truly, WAGGONER CARR Attorney General of Texas James N. Storer JNS:Jf Assistant -137- Honorable J. W. Falkner, P2ge 5 (C- 31 ) A?PROVED: OPINION COMMITTZE W. V. Geppert, Chairman Joe R. Long Brady Coleman Albert Pruett Jerry Srock APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone -138-