Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MATTOX Dwember 21, 1984
.qttorney General
Supreme Court Building Rooorable Margaret Moore Opinion No. JN-259
P. 0. BOX 1234S Travis County Attomey
Austin. TX. 78711. 234S P. 0. Box 1748 Re: Meaning of “registrant” for
5121475.2301
Austin, Texas 781167 purposes of section 36.10 of the
Telex 9101874.1387
Telecopier 5121473.0233
Business and Commerce Code
Dear Ms. Moore:
714 Jackson, Suite 700
Dallas, TX. 752024506
You inform us that different counties presently apply differing
2 141742.8944
requirements for t’w assumed name certificates which must be filed for
unincorporated businesses and professions. The inconsistent require-
4824 Alberta Ave.. State 160 ments apparently stem from the ambiguity of the term “registrant” in
El Paso. TX. 799052793 section 36.10(a)(Z) of the Texas Business and Commercial Code.
SlY332-3484 According1.y. you zwk whether “registrant” refers to the business or
professional entity which will operate under the assumed name or to
x01 Texas, Suite 700
the partner(s) or beher beneficial owner(s) of the entity.
“ouston. TX. 77002.3111
713l22MSS3 Section 36.10(a) first indicates which unincorporated businesses
or professions must file assumed name certificates and then sets forth
the information tb,at must appear on the certificates. Subsection
803 Broadway. Suite 312
Lubbock. TX. 7S401-3479
36.10(a) requires that:
003/747-5233
[a]ny pwson who regularly conducts business or
renders -sessional services other than as a
4309 N. Tentn. Suite B
corporation in this state under an assumed name
shall fiih. . . a certificate
McAllen. TX. 78501.1883
3121582.4347 setting forth:
(1) the assumed name under which such business
200 Main Plaza. Suite 400 or profwsional service is or is to be conducted
San Antonio. TX. 782052797
or rendered;
51212254191
(2) if the registrant is:
An Equal OppOrtUnilYl
Affirmative Action EmPlOW
(A) an individual, his full name and
restdeoce address;
(B) a partnership, (i) the venture or
Flartnership name, (ii) the venture or
rlartnership office address, and (iii) the
full name of each joint venturer or
$;eneral partner and his residence address
if he is an individual or its office
address if not an Individual;
p. 1152
Honorable Margaret Moore - PII~C 2 (m-259)
(C) an estate, (I) the name of the
eetate, ‘``)thCstate’s office address,
If any, and (iii) the full name of each
representa t~lve of the estate and his
residence address if he is an individual
or its office address if not an
Individual;
(IO a real estate investment trust,
(i) the name .of the trust, (ii) the
address of the trust, (iii) the full name
of each tmstee manager and his residence
address i:! he is an individual and its
office address if not an individual; or
(E) a company other than a real estate
investment trust, or a corporation. (i)
the name of the company or corporation,
(Ii) the s’tate, couniry; or other juris-
diction uader the laws of which it was
organized, incorporated. or associated,
and (iii) its office address. . . .
(Emphasis added).
Before construing the! portion of subsection 36.10(a) which
employs the term “registrant” and which governs the content of the
certificate, a preliminary ,Jnderstanding of the scope of “any person”
is necessary. This term colerols which unincorporated businesses and
professions must file assumck name certificates.
Section 36.02 contains the definitions generally applicable in
chapter 36 of the code and defines “person” as follows:
In this chapter, unless the context otherwise
requires:
. . . .
(4) ‘Person’ includes an individual,
partnersbip, company, or corporation. . . .
(Emphasis added).
Neither corporations nor estates fall within the definition of
“any person” as employed i,n section 36.10(s). Because subsection
36.10(a) quoted above applies to the operation of businesses or
professions “other than as a corporation” the context requires that
“any person” in subsection 36.10(a) be read to exclude corporations.
Corporations operating as s:rs:h under an assumed name are dealt with in
section 36.11 of the code rather than in section 36.10. Similarly.
estates are excluded fron the definition of “person” upon the
rationale that representatl.ves administering an estate can be easily
p. 1153
tlonorablc Margaret goore - I’rgc 3 (JM-259) ,
identified. See Cement of Eiar Committee, Bus. 6 Cm. Code 136.02.
The express enumeration of a particular subject in a statute implies
the exclusion of all others. Carp v. Texas State Board of Examiners
of Optometq, 401 S.W.Zd 639, 642 (Tex. Civ. App. - Dallas 1966).
fl, 612 S.W.Zd 307 (TsK. 1967). ThUl, neither corporations or
estates ated file an assunled name certificate when they operate as
such under assumed names.
.Thc present confusion arose because the remainder of subsection
36.10(a) contains a refererlce to these two entities, which have been
excluded from the category of unincorporated “persons” who must file
an assumed name certificate. The provision includes a corporate
“registrant ,‘I see 536.10(s) (2)(E), and an estate “registranc.‘i -See
536.10(a) (2) (C)y
You suggest that the express inclusion of these references to
corporations and estates Lndicstcs the legislative intent that the
term “registrant” refers to each beneficial owner of a business or
profession which operates undzn assumed name. Because you state
that a “registrant” is on,! who must file a certificate, under your
interpretation each benefi:lsl owner would have to file separately.
We disagree with your conclusion that a “registrant” is one who must
file. but we agree that “registrant” refers to the beneficial owners
of the entity or “person” as used in section 36.10(a) which is
required to file an assumed name certificate.
You base your interpretation of “registrant” upon two related
maxims of statutory construction: first, that a statute be construed
so that its various parts ,s’re consistent and reasonable, Singleton v.
Pennington, 568 S.W.2d 367 l:Tex. Civ. App. - Dallas 1977). aff’d. 606
S.W.2d 682 (Tex. 1980). and second, that any construction bcoided
which would make a provision a useless appendage. Carson v. Hudson,
398 S.U.Zd 321, 323 (Tex. Civ. App. - Austin 1966. no writ).
Following these principles, your brief indicates that “[IIf ‘regis-
trant’ refers to the entity actually using the assumed name rather
than to the beneficial owner[s]. two portions of section 36.10 become
‘useless appendages.” You refer to subsections 36.10(a) (2)(C) and
36.10(a)(2)(E). which dea,l with estate “registrants” and corporate
“registrants,” respectivel:‘.,
However, an 1nterpret:‘r:ion of “registrant” which requires each of
the beneficial owner(s) of an unincorporated entity operating under an
assumed name to file a cer,::Lficate rather than requiring one filing by
the entity or “person” would make section 36.10(a) internnlly incon-
sistent. The subsection would begin by excluding corporations and
estates from filing an as!;umed name certificate and end by requiring
such entities to file a ct,rtificate. Corporations would have to file
under both sections 36.10 ,snd 36.11. Consequently, we disagree with
your construction of the :erm “registrant” in the context of section
36.10(a).
Honorable Narpret Moore*- hp;o 4 (J+259)
The Jmbi~ity of the tc:m "registrant" rcsultr from lquJting “any
peroou" in $ubJeCtiOn 36.10(~) vith “regiStrant” in the JJUIJ Sub-
Section. AJ indicJted, JecKloa 36.10(~) raquirsr any UninCOKpOrJted
"person" or entity (including an IodividuJl, partnerrhip. or UoioCOr-
porated CO~PJUY) who regulJrly cooductr buJinJJJ Or’renders profes-
SiOnJl JarviCeS under JU JsJu1ssd ClJme CO file JO JSSuWd CIJIDC Certifi-
c(lte. It do&J not require em unincorporated “registrant” to file a
certificate. Although Attorney General Opinion W-263 (1980) referred
to section 36.10(~)(2)(B) 4:s requiring the “registrant” to file an
assumed name CertifiCJte, rhe 1Jtent ambiguity of the term WJS not
then in ~JSUC. Thus, the opinion’s reference to “registrant” is not
controlling.
The definition of “registrant” prescribed by section 36.02 does
provide a source of confuskn:
‘Registrant’ mf?ans any person thJt has filed,
or on whose behalf there has been filed, Jn
Ed name certificate under the Drovisions of
this Chapter or of:her lav. (Empbasi s added).
Nevertheless. nowhere does the statute require each “registrant” to
file an assumed name cel:tlficate. Therefore, we conclude that
“registrant” does refer to the various beneficial owners of the
unincorporated business or profession operating under an assumed name
but does not require each beneficial owner to file aF assumed name
certificate.
The statute merely requires that each of the “registrants” be
included on the assumed name certificate. The context of “registrant”
in section 36.10 contains a’n Implicit requirement that each category
listed under subsection 36.10(a)(2) must be listed on the certificate
if they are part of the entity operating under an assumed name. One
entity or “person” for purposes of subsection 36.10(s) opernting under
JU asked name may be comprised of several “rJgiStrJnt6;” See; e.g.,
Luloc Oil Co. v. CJldwell County, 601 S.bl.Zd 789. 794 (Tex. (Xv. App.
- BeJuISOnt 1980, writ ref’d n.r.e.); Attorney General Opinion MW-263
(1980); see also Bus. 4 Comm. Code 136.15 (indexIn &stem distln-
guishes betveen certificate or statement and the individuals filing
it).
Because the various “registrants” are part of the entity which
must file an assumed name c~crtlficate. the provision need not expli-
citly repeat that each coqonent of the entity, or each “registrant,”
must be listed in the certl.f’icate.
Although only the “person” or entity operating under an assumed
name need file sn assumed nJme certificate, all of the beneficial
owners falling within the list of various possible “registrants” must
provide the information :,pecified in subsection 36.10(a)(2). For
example, assume the entic), conducting business under an assumed name
Aonorable hargaret Moore - Page 5 (JM-259)
is a partnership (named C) with two partners, A and 8. Subsection
36.10(a) requires the filing of one certificate for C which contains
~11 of the beneficial ouners l=ed in subsection 36.10(a)(2) as
“registrants.” Thus, A mwt provide the information required of A in
subsection 36.10(a) (2). and B must also provide the information
required of B by subsection 36.10(a)(2).
You also cl& about the execution and acknowledgement requirements
of section 36.10. Subsection 36.10(b) provides:
A certificate filed under Subsection (a) of
this section shall be executed and acknowledged by
each individual whose name is required to be
stated therein or by his representative or
attorney in fact, and in the case of any person
not an individual, the name of vhich is required to
be stated theresin, the certificate shall be
executed and ackwvledged under oath on behalf of
such person by iTs representative or attorney in
fact or by a j%nt venturer. general partner,
trustee manager: officer, or anyone having
comparable autho,c:Lty, as the case may be, of such
person. Any c&!lficatc executed and acknowledged
by an attorney l.n fact shall include J statement
that such attorney in fact has been duly
authorized In writing by his principals to execute
and acknowledge the same, (Emphasis added).
The language in sec!:!.on 36.10(b) is clear. The section dis-
tinguishes “persons” who ;Ire individuals from “persons” who are not.
In the partnership examplr above (of A and B as partners in C), any
general partner or person with comparable authority of the registrant
partnership may execute the certificate. It is not necessary for each
partner of a registrant partnership to individually execute the certi-
ficate.
SUNMARY
The term “auy person” rather than the term
“registrant” in section 36.10(a) of the Texas
Business and Coaxerce Code controls which unincor-
porated businesc,es and professions operating under
an assumed name must file an assumed name certi-
ficate. SeCtim 36.10(a) requires JJCh unincor-
porated entity l,perating under an assumed name to
file one certi?icate which lists the beneficial
owner(s) appear:.ng as “registrants” in subsections
36.10(a) (2) (A)-1:X). The certificate must contain
the information about each “registrant” required
by subsections Xi. IO(a) (2) (A)-(E).
p. 1156
Honorable Margaret Moore - Page 6 (JM-259)
Subsection 36.10(b) does not require esch
partner of a reSistrant partnership to indivi-
dually execute the assumed name certificate.
3,iLa
Ver truly you
.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First AssistJnt Attorney General
DAVID R. RICEARDS
Executive AJSiStJnt Attorney, General
RICK CILPIN
Chairman, Opinion Cossaittee
Prepared by Jennifer Riggs
Assistant Attorney General
APPROVED:
OPINION CONMITTEE
Rick Gilpin. Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1157