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