Untitled Texas Attorney General Opinion ( 1943 )


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  •                     HEATTORNEY                   GENERAL
    OFTEXAS
    AUSTIN     II.TEXAS
    Gerald C . Mann
    Eouorable Sidney Letham
    Secretary of state
    Austin, Texas
    Dear Sir:                                   Opinion Ilo. O-5508
    Re: Adoption of Cooperative
    Marketing Act (Chapter 8,
    Title 93, Revleed Civil
    Statutes) by corporstione
    organized under Article
    1302, subdivision 81; and
    payment of franchise taxes.
    In your letter of llovember8, 1943, regarding the above captioned
    matter, you ask the following queetione:
    1.   "Should thie office under the provlaioua of
    Article 5760 approve and file amendments to charters
    of corporatloue organized under the provleloue of Title
    32 of the Revised Civil Statutes changing the cor-
    porate structure of said corporations to come under
    the provialous of Chapter 8, Title 93 of the Revised
    Civil Statutes?
    2.   "If your answer to the first question la in
    the afffrmatlve, should auoh a corporation after coming
    under the provlelons of Chapter 8, Title 93 continue
    to pay franciee taxes to this department?"
    You handed ua in connection therewith the original charter of
    the Booker Rqulty Union Rxhange, a corporation created May 17, 1920, under
    the provisions of Subdlvlslou 81, of Article 1302, Vernon's Annotated
    Civil Statutes, together with two (2) amendments, filed September 10,
    1940, and July 7, 1941.
    Both amendments were approved and filed with the Secretary of
    State D The 1940 amendment adopted the provisiona of the Cooperative
    Marketing Act (Chapter 8, Title 93, Revised Civil Statutea), and the 1941
    amendment increased the capital stock of the association from $31,238.00
    to $40,000.00.
    The pertinent statutes are:
    Honorable Sidney Latham, Page 2, 0-5508
    "To construct orpurchase, or purchase and maintain
    milla, gins, cotton compresses, grain elevators, wharves,
    and public warehouses for the storage of products
    and coamodltles by grain elevator and public warehouse
    companies; the loan of money by such elevator and
    public warehouse companies; and to act as general
    coamerclal brokers and as custom brokers in the
    United States sod foreign countries." (Subdivision
    81, Article l302, Revimed Civil Statutes)
    "An association may be organized to engage
    in any activity in connection with the production,
    cultivation, and care of citrus groves or the
    markatiug or selling of agricultural products
    and citrus fruits produced by and marketed for
    its members, or in the harvesting, preaervlng,
    drying, processing, canning, atorlug, handling,
    shipping, or utilization thereof, or the manufacturing
    or marketing of the by-products thereof; or in
    connection with the manufacturing, selling, or
    supplying to its members of machinery, equipment
    or supplies; or in the financing of tho above
    enumerated activities; or in any one or more
    of the activities specified herein. Provided,
    however, any such activities may extend to non-members
    and to the production, cultivation, and care of lands
    owed or cultivated by them and their products
    llmited by Article 5738 as heretofore amended."
    (Article 5740, Cooperative Marketing Act).
    "Each association formed under this Act
    must prepare and file Articles of Incorporation,
    setting forth: (a) The name of the association.
    (b) The purposes for which it is formed. (c)
    The Place where its principal business will be
    transacted. (d) The term for vhlch it is to
    exist, not exceeding fifty (50) years. (e)
    The nmber of directors thereof, vhloh must not
    be less than five (5) and may be any number In
    excess thereof, and the term of office of such
    directors. (f~) If organized without capital
    stock, whether the property rfghts and interest
    of each member shall be equal or unequal; and
    if unequal, the Articles shall set forth the
    general rule or rules applicable to all members
    by which the property rfghts and interests, re-
    spectively, of each member may and shall be de-
    termined and fixed; and the association shall have
    m.   .
    Honorable Sidney Latham, Page 3,   0-5508
    to power to admit new members who shall be en-
    titled to share in the property of the assocla-
    tlou with the old members, in accordance with
    such general rule or rules. This provision of
    the Articles of Incorporation shall not be al-
    tered, amended or repealed except by the written
    consent or the vote of three-fourths of the mm-
    bars. (g) If organized with capital stock, the
    amount of such capital stock and the number of shares
    into which it is divided and the par value
    thereof. The capital stock may be divided into
    preferred and common stock. If so divided, the
    Articles of Incorporation must contain a etate-
    ment of the number of shares of stock to which
    preference is granted and the number of shares
    of stock to vhlch no preference is granted and
    the nature and extent of the preferences and
    privileges granted to each. The Articles must
    be subscribed by the incorporators and acknowl-
    edged by one of them before an officer authorized
    by the law of this State to take and certify
    acknowledgments of deeds and conveyances; and shall
    be filed in accordance with the provisions
    of the general oorporatlon law of this State;
    and when 80 filed the said Articles of Incor-
    poration, or certified copies thereof, shall be
    received in all courts of this State, and other
    places, a8 prima facie evidence of the facts cou-
    talned therein, and of the due incorporation of
    such association, O * . .' (Article 5744, Co-
    operative Marketing Act)
    "Any corporation or aesooiation organized
    under previously existing statutes, may by a
    majority vote of its stockholders or members
    be brought under the provisions of this chapter
    by limitlog its membership and adopting the
    other restrictions aa provided herein. It
    shall make out in duplicate a statement signed
    and sworn to by ft.6directors, upon forms sup-
    plied by the Secreta~ of State, to the effect
    that the corporation or association has by a
    maJorlty vote of its stockholders or members
    decided to accept the benefits and be bound by
    the provisions of this chhpter. Articles of
    Incorporation shall be filed as required in
    the eighth article of this chapter, except
    that they ehall be signed by the members of the
    Honorable Sidney Latham, Page 4, 0-5508
    board of directore.  The flllng fee shall be the
    same as for filing an amendment to Articles of
    Incorporation." (Article 5760, Cooperative
    Uarketlng Act)
    Article 5760, last quoted above, provides that an Aseociation
    may adopt the provisions of the Cooperative Marketlug Act by: (1) Ita
    Directors filing a worn statement with the Secretary of State to the effect
    that by a majority vote of its stockholders, it has decided to accept the
    benefits and be bound by the provisions of Chapter 8, of Title 93, of
    the Revised Civil Statutes, as amended; (2) Filing articles of lncor-
    poratlon as required by Article 5744, Vernon's Annotated Civil Statutes,
    signed by the members of the Board of Directors.
    An examiuation of the instruments submitted discloses that the
    Booker Bquity Union Exchange has complied with these requirements, and
    that the papere they submitted are in order except that when it was decided
    to come under the provisions of Chapter 8, of Title 93, it filed what was
    denominated au amendment of its charter rather than new articles of
    incorporation.
    However, the ameudmeut filed In your office September 10,
    1940, contains all that is required by Article 5744 for articles of lnoor-
    poratlou, and is signed and acknovledged by the directora. It was
    accompanied by the statement required by Article 5760.
    Your first question is therefore ansvered in the affirmative;
    and this will apply to other corporations desiring to change their cor-
    porate structure to come under the provisiona of Chapter 8 of Title 93,
    when such an amendment contains all the information required by Articles
    5744 and 5760, and is executed as there preacrlbed.
    Article 5764, Vernon's Annotated Civil Statutes, is pertinent
    to your second question, and reads as followsz
    "Each association organized hereunder shall
    pay tc the Commlseloner an annual license fee of
    ten dollars but shall be exempt from all franchise
    or license taxes. For ffllng articles of lncor-
    poratfon, an association organized hereunder shall
    pay ten dollars, and for filing an amendment there-
    to, two dollars and fifty cents."
    You are advieed that, in our opinion, when a corporation changes
    its corporate structure In the manner provided in Article 
    5760, supra
    .
    it is entitled to the benefits of Article 5764 just as a corporation
    orignlally organized under the provisions of the Cooperative Marketing
    Honorable Sidney Latham, Page 5, 0-5508
    Act, and le exempt from the payment of franchise taxes.
    very truly yours
    AlTOFdIlETGElVXBALOF!FEfAS
    BY
    Jama   D. Smullen
    A~alstant
    JD9:ff
    

Document Info

Docket Number: O-5508

Judges: Gerald Mann

Filed Date: 7/2/1943

Precedential Status: Precedential

Modified Date: 2/18/2017