Untitled Texas Attorney General Opinion

Honorable Bert Ford, Administrator Texas Liquor Control Board Ahtin, Texas Dear Sir8 Opinion Ho. O-6644 Rer Rhere a foreign corporation, with of without P pemit to dohtsiness in Texas, is an appliornt for a non- resident Seller's Permit under the Texas Liquor Control Act, and has filed in the office of the Secretary of State a power of attorney, designating its service agent, under the provisions of House Bill Elo.709, has said foreign oorporation complied with Sm. 16$ of Art. 666, P.C., and Sec. 12 of ht. 667, P.C.? Is it the duty of the~Seoretary of State to determine whether the power of attorney is properly executed and does the Secretary of State and his suocessbrs in offioe have authority, Mder appointment by the applicant, to act as applicant"s service agent? Your letter dated 4ugust 12, 1949, requesting an opinion of this department conserning the above matter and submitting for approval "CERTIFE CaTR OF ILPPOINTUE'~RESIDENT STATE AGEMV,' reads in part, to-wits "Section 14 of S.B. 117 enacted by-the Regular Session of the 48th Legislatum oreated a new Section to be known as Section 16& of Artiale 666 of the Penal Code. So far a8 this inquiry is concerned the pertinent parts of Section 15& aren **Section 1%. A.. (1) Non-resident Seller's Permits 1.Bon-resident Seller's Permit shall bp required of all distilleries, wineries, immporters,brokers, and others who sbll liquor to the holders of permit authorizing the importation of liquor into Texas, regardless of whether such sales am oonswmneted within or without the State. Such pewit shall authorize the holder thereof tar Hon. Bert Pord,'Page 2 (O-5544) "'(a). Solicit or take orders for liquor from only the holders of permits authorieed to import liquor into this States "'(b). Ship, or cause to be shipped, liquor into Texas only in consuunsationof sales made to the holders of permits authorized to import liquor in- to Texas. "e(2)., No permit shall be granted to an appli- cant for a Non-resident Seller's Permit until it shall have been shown by the applioant that he has first filed with the Secretary of State a certificate oertif'yingthat he has appointed an agent, resident within this State, together with the street address and business of such agent. All notices of hearing for refusal, cancellation, or suspension may be served upon the designated agent as required herein, or upon the permittee, or if a corporation, upon any officer thereof, or upon any other agent of the non-msident seller authorisad as suoh to sell liquor in this state, and all proceedings as to suoh hearings shall be as is otherwise provided by this Aate Service of notice in such manner shall constitute due processs provided further, that if any permittee shsll have failed to maintain within this state a desigmated agent for service as herein required, service may be had on the Secretary of State, and it shall be the duty of the Secretary of State to send any citation served on him to the holder of the permit by registered mail, mturn receipt requested, and such receipt shall be prdma facie evidemcs of ser- vice upon the permittee.* "Section 12 of Article 667 of the Penal Code provides as followss "QSec. 12. Any manufacturer, distributor, or person shipping or delivering beer into this State shall file with the Secretary of %ate a certificate certifying the name of his agent upon whom service may be had, and his or its street address and businessp and in the event such person fails to canply with this requirement within fifteen (15) days from the effect$ve date hereof the service may be had on the Secmtary of State in any cause of action arising out of the violation of this Act, and it shall be the duty ofthe Secret&y of Stats to send any such citation served on him to such person, rho may be in a foreign state, by registered mail, return reoeipt requested, and such receipt shall be prima facie evidenoe of service on suah person.' Hon. Bert Ford, Page 3 (O-5544) I(0 . . "We respectfully request your opinion in snswerto the follow- questions8 '1. Where a foreign corporation has a permit to do business in Texas and files in the Office ofthe Secretary of State a Power of Attorney under the provisions of l&se Bill Noe 709, is the filing of said Power of Attorney a complianoe with the provisions of Section 16$* Article 666 of the Penal Code and Section 12, Article 667 of the Penal Code or shall said oor- poration be required to file another form of a Power of Attor- nay to comply with Section 15& Article 666 of the Penal Code and Se&ion 12, Article 667 of the Penal Code? '2e Where a corporation does not have a permit to do business in Texas, but files a Power of Attorney ap ointing an agent for service in the Office of the Secretary of !tats under the pro- visions of House Bill l+or709, is said filing a compliance with the provisions of Section 15&, Artiole 666 of the PQnal Cbde and Seation 12, Artiole 667 of the Penal Code or shall said oor- poration be required to file another form of a Power of &torney to comply with Section I&, Article 666 of the Penal Code and Section 12, Article 667 of the Penal Code? n30, Should this form provide for a showing as to whether the person filing the form is an individual, partnership, assooia- tion or a corporation? -4. If it is a corporation, what officers of the corporation shall sign the Power of Attorney? *se Should a copy of the minutes of the Board of Direotors of the corporation appointing the agent for 8QrvioQ acceanpany the Power of Attorney or would it be sufficient for the Power of Attorney to provide that the officers are aoting under the authority of the Board of Directors of the corporation, if the Power of Attorney is properly sworn to? "6e Is it the duty of the Secmtary of Stats to determine whether the Power of Attorneys are properly executed or shall the Seore- tary of State merely file the instruments whether they= proper- ly executed or in proper form? *7. If a person, partnershi or corporation in complying with the provisions of Section 1 5B Q, Article 666 of the Penal Code and Section 12, Article 667 of ths Penal Code desires to make the Secretary of State and his successors in office in their - r Hon. Bert Ford, Page 4 (O-6544) official capacity their agent for service in Texas, does the Secretary of State have authority to act as their agent for service? "If you answer question 7 in the affirmative, then please insert a provision to that effect in the Power of Attorney if it is necessary to make corrections inthe in- strument. "If in your opinion the attached form is not a sub. stantial compliance with the lawn then we would appreciate it if you would prepare one that in your opinion does sub- stantially comply with the lawe" * ” . . . e "House Bill No. 709, Sec. 2. The power of attorney required by this hot shall, in addition to stating the name and address of the agent, also stipulate that said agent is appointed as a corporation's service agent in Texas, and that said foreign corporation consents to the serpioe .of pro- cess upon said agent and that he shall be deemed as the sex-v- ice agent of said oorporation for all intents end purposes as oontmsplated by the statutes requiring such designation and appointment; said power of attorhey shall be acknowledged by the president or vice president, attested by the secretary and acknowledged in the manner and form as is required in acknowledgment of deeds in the State of Texas; said power of attorney shall, when executed, be filed in the office of the Secretary of State and shall beccme a part of the records in said office." Paragraph (2) under seotion 1% of Senate Bill 117 and Sea. 12 of Art. 667, P. C., provide that the certificate of appointment of the servioe agent show that the said service agent is a resident within this state, give the street address and business of such agent. The power of attorn- ey under Section 2 of House Bill 709 does not require that the business of the agent be given. "house Bill No. 709e Sec. 1. No foreign corpora- tion shall transact or do sny business in this State with- out first having filed in the office of the Secretary of State a power of attorney designating some individual who is a resident citizen of this state, as its service agent, upon whom process may be served in all suits, proceedings and causes of actions pending or hereafter filed in this state, in whioh said foreign corporation is a party, or is to'be made a party," Hon. Bert Ford, Page 5 (O-5544) In answer to your first and seoond questions, it is the opinion of this department that where a foreign aorporetion, with or without a per- mit to do business in Texas, is an applicant for a Non-Resident Seller's Permit under the Texas Liquor Control Act, it is required to file a power of attorney appointing a service agent in compliance with Sec. 15& of Art. 666, P.C., and Sec. 12 of Art. 667, P.C. The filing in the office of the Secretary of State of a power of attorney, designating a servics agent, under the provisions of House Bill 709, is not a compliance with Sec. lf& of Art. 666, P.C., and SQO. 12, of ht. 667, P.C. In answer to your third question, it is the opinion of this department that where a corporation appoints a servioe agent the power of attorney should be signed by the president or vice president and attested by the seoretary and acknowledged. In ansrsring your fifth question, it is the opinion of this de- partment that where the form appointing said service agent shows on its faos that the Board of Directors has authorized the president or vice president to appoint the semice agent and is properly 811)~n to, it is not necessary that a oopy of the minutes of the Board of Directors accompany the power of *ttorney. In answer to your sixth question, it is the opinion of this de- partment that it is the duty of the Secretary of State to determine whether the powers of attorney are properly executed before they are filed. In answer to your seventh question, it is the opinion of this de- partment that where a person, partnership or corporation appoints a service agent in compliance with the provisions of Sec. 15$, Art. 666, P.C. and Sec. 12, Art. 667, P.C., desires to make the Secretary of State of Texas and his suooessors in office his or its agent for service in Texas, the Secretary of State has authority to act as such agent for service. lVshave carefully studied the form, "CERTIFICATION OF APPOIRTED RESIDENT STATE AGENT," which you submitted for approval and ws are of the opinion that said form is not a substantial compliance with Sec. 15-2,Art. 666, P.C., and Sec. 12, Art. 667, P.C. We are attaching,hereta a form ap- proved by this department as being in compliance ,with Sec. l&,.Art, 666 P.C., end Sac, 12, Art. 667, P.C. Very truly your* ATTORBEY GEEERAL OF TEXAS By s/ Jesse Owens JOsFOregw Jesse Owsns Enclsoure ~ssistmt APPROVED SEP 14, 1943 's/Gerald C. &ran Bpproved Opinion Committee ATTORNEY GENERAL OF TEXAS By GWB Chairman