Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORMX GENERAL
OF TEXAS
Au-.-s 787ll
October 18, 1974
The Honorable Joe Resweber Opinion NO. H- 426
County Attorney
Harris County Courthouse Re: Whether County Clerk is
Houston, Texas 77002 authorized to file a “certificate
of ownership” in Assumed Name
Records.
Dear Mr. Resweber:
Your question concerns the authority of the county clerk to record
two written instruments submitted to his office in compliance with Article
5924.1, V.T.C.S., the “Business under assumed name” statute.
Article 5924.1, V. T. C. S., requires that anyone transacting business
under an assumed name must file with the county clerk in the county where
the business is to be transacted a certificate containing the following informa-
tion:
1. The name.under which such business is or is to
be conducted:
2. The true or real full name or names of the person
or persons conducting such business; and
3. The post-office address or the addresses of such
persons.
Of the two instruments given to the clerk under authority of this
article, one is executed by the “nominee” of an unincorporated business
trust, which is legally under the control of several trustees who reside
in another state. This first instrument contains the name and personal
address of the “nominee, ” the assumed name of the business, and the
names of the trustees, It does not contain the addresses of the trustees,
p. 1975
.
1
The Honorable Joe Resweber page 2 (H-426)
nor is it executed by them. The second inetrument gives the names of the
trustees, recites that they will conduct business under a certain assumed
name, provides the business address of the trust, but does not contain the
personal addresses of the trustees, individually.
The county clerk has questioned the sufficiency of both certificates
under Article 5924.1, V. T. C. S. Neither instrument discloses the personal
addresses of the trustees who legally own and control the business.
Certainly, the county clerk, before performing a ministerial duty such
as recording a document, is entitled to examine the face of the document
to determine if it is the type of instrument he is authorized to record.
Under Article 5924.1 the addresses of the persons who intend to transact
business under an assumed name is an essential element of the certificate.
Although the clerk is not responsible for verifying the accuracy of the
information contained in an assumed name certificate, we believe he may
refuse to record a certificate which is clearly defective on its face. See
Attorney General Opinion M-578 (1970) (information required in a declara-
tion of informal marriage);
Judged by these standards, it is our opinion that the certificate
executed by the nominee, stating that -he will conduct business, and providing
all information required as a condition of his transacting business under
an assumed name, is authorized to be recorded. Sinclair Refining Co. v.
M, 13 F.2d 68 (5th Cir. 1926).
The second certificate executed by the trustees, and stating that
they intend to do bus!ness under an assumed name, could properly be
denied registration because it gives only the business address of the
unincorporated trust. Article 5924.1 ins as’% purpose the protection of
the public who do business with persons operating under assumed business
names. Paragon Oil Syndicate v. Rhoades Drilling Co., 277 S.W. 1036
(Tex. 1925). The statute requires the filing of a certificate giving the real
identity and address of the person or persons doing business under an
assumed name. In our opinion neither the purpose of the law, nor its
literal requirements, can be satisfied by a document containing only the
business address of the unincorporated business trust. Consequently, the
county clerk is not authorized to record the instrument proferred by the
trustees as an “assumed name certificate. ”
p. 1976
. .
The Honorable Joe Resweber page 3 (H-426)
SUMMARY
An “assumed name certificate” under Article
5924.1, V.T.C.S., must contain all the informa-
tion required by law before the County Clerk is
authorized to record the instrument as a county
record.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
lg
p. 1977