Case Information
*1 THEATTORNEY GENERAL OFTEXAS AUSTIN 11. TEXAS
GERALD C. MhNN
*-z-roHNzcY Gzzxu~HAz.
Honor&bile Will Mann Richardson As~lstant~S~cretarg of State hustln, Texas Opinion No. O-4353
Dear Sfr: Re: Corporations i Sections 2 and 9 of Article 1302, ,R.C.S.
Your request for opinion has.been received and‘carefullg considered by this department. We quote from your request as follows:
'We are enclosing herewith an application. foil a bhtititep for the Zion Lutheran Social Ass.o- ciatlon marked 'Exhibit B'.
-'"You will note that In the preamble of the charter IF is statd.that~a corp6ratlon wishes to-come under the provisions of chapter goof Trtle 32 bf the-Revisea civil Statutes, 1925: The purpose of the corpdration is'st&tsd.to be &.benevblent one 'The maintenance, operation, acqultiitlon an&control of recreational facill- ties for the exclu'srve benefit of and In the Interests' of its members aiia for which no profit shall accrue to the corporation'. We have ad- vised the'lncorporators that the corporation coul&be 'formed under Subdivision 9 oft Artl- cle 1302'as a sports club paying the $50.00 fll- ing fee and the annual franchise tax. .
"AttorMys for the incorporators, however, Insist that on~the basis of the case-.of Evans et ux v; Southside Place Park.Assoclatlon, 154 S.W. 2d, 194, that the corporation is of such a benevolent character that it should be exempt from,franchise tax and should pay only the $10.00 filing fee. We call your attentFon to the fact that the purpose clause contains the provision 'for the exclusive benefit of and in the interest of its members'.
"We w0ula appreciate an opinion from your Department as to whether such a corporation *2 Honorable Will Mann Richardson, page 2 o-4353
should pay the $50.00 filing fee and annual tax, or whether.there is such a benevolent corporation as should be exempt from tax and pay only the $10.00 filing fee." The case of Evans, et ux v. Southside Place Park Asso- ciation, 154 S.W. (2a) 914, referred ~to in your letter, Is not i?i point and does,not touch the question involvedin your request.
It is cur opinion that the proposed corporation can- not be chs~rtered under Subdivision 2 of Article 1302, Revised Civil Statutes, as a "benevolent" corporation., See authorities cited in opinion No. O-3991 of this department, a copy of which Is enclosed herewith for your information.
It is our further opinion that the proposed corporatiM. %danfiot be incorporated under Section 9 of Article 1x02, R.C.S., &s an "innocent sports" corporation. See authorities cited in 6pinlon'No. o-2866 of this department, a copy of which is en- closed herewith for your information. See also the case of Smith v:Wortham,'157 S.W. 740, (Sup; Ct; oft Texas). Also see opinion of this dkptirtment datea March 7, 1933~, wpitten by Honbrable Pat Dougherty, A5slstant Attoiney~General of Taxas-;. Vol. 344; pages 184-5, Letter Opinions of the Attorney General bf Texas, which holds that the purDose c1ause.M the chdter. of K'izkportitlon tinder Section 9 of Article 1302, R.C.S.; should tipecifically name the "Innocent sport or Innocent sports" to' be sponsored and that the Secretary of State should disapprove the charter of a'proposed corporation applying under said sed- tlon to %uppo*t, sponsor and encourage Innocent sports among Its memberss*ch as wrestling, boxing and various other and similar sports for the amusement of Its members".
Since the proposed corporation cannot be legally charter- ed iinder either Section 2 br Section 9 of Article 1302, R.C.S., sour question with reference to fees and franchise taxes there- fore becomes moot.
Yours very truly ATTORNEY GENERAL OF TEXAS By s/Wm. J. Fanning WJF:GO:wc
Wm. J:.Fanning Assistant hP&XlED FEE 10, 1942 s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By BWB Chairman