Case Information
*1 The Attorney General of Texas Dwember 21, 1984 JIM MATTOX
.qttorney General Rooorable Margaret Moore Opinion No. JN-259
Supreme Court Building Travis County Attomey P. 0. BOX 1234S Re: Meaning of “registrant” for Austin. TX. 78711. 234S P. 0. Box 1748 5121475.2301 Austin, Texas 781167 purposes section 36.10 of the Telex 9101874.1387 Business and Commerce Code Telecopier 5121473.0233
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- ments apparently stem from the ambiguity of the term “registrant” 4824 Alberta Ave.. State 160 section 36.10(a)(Z) the Texas Business and Commercial Code. El Paso. TX. 799052793 SlY332-3484 According1.y. you zwk whether “registrant” refers the business or professional entity which will operate under the assumed name or to the partner(s) or beher beneficial owner(s) of the entity. x01 Texas, Suite 700 “ouston. TX. 77002.3111 Section 36.10(a) first indicates which unincorporated businesses 713l22MSS3 or professions must file assumed name certificates and then sets forth tb,at must appear on the certificates. 803 Broadway. Suite 312 that: Lubbock. TX. 7S401-3479 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 McAllen. TX. 78501.1883 shall fiih. . . a certificate setting forth: 3121582.4347
(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 [51212254191] or rendered;
(2) 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) full name of each venturer joint $;eneral partner and his residence address if he is an individual its office address if not an Individual;
Honorable Margaret Moore - PII~C 2 (m-259)
(C) an estate, (I) the name of the eetate, ‘~~)thCstate’s office address, any, and (iii) full name of each the If and his representa t~lve of estate the residence address if he is an individual office address not an or its 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 or associated, organized, incorporated. and (iii) its office address. . . . (Emphasis added). construing the! portion of subsection which
Before and which governs the content of the employs the term “registrant” certificate, a preliminary ,Jnderstanding of the scope of “any person” This term colerols which unincorporated businesses and is necessary. professions must file assumck name certificates.
Section 36.02 contains the definitions generally applicable chapter 36 of the code and defines “person” as follows:
In this chapter, unless the context otherwise requires:
. . . .
(4) ‘Person’ includes an individual, corporation. . . . partnersbip, company, (Emphasis added).
Neither corporations nor estates fall within the definition “any person” as employed i,n section 36.10(s). Because subsection quoted above applies the operation of businesses professions “other than as a corporation” context
“any person” 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 definition of “person” upon rationale that representatl.ves administering an estate can be easily *3 tlonorablc Margaret goore - I’rgc 3 , See Cement of Eiar Committee, Bus. 6 Cm. Code 136.02.
identified. 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). neither corporations 612 S.W.Zd 307 1967).
fl, (TsK. ThUl, ated file an assunled name certificate when they operate as estates such under assumed names. .Thc present confusion arose because the remainder of subsection contains a refererlce to these two entities, which have been excluded from the category of unincorporated “persons” who must file The provision includes a corporate an assumed name certificate. “registrant ,‘I see 536.10(s) (2)(E), and an estate “registranc.‘i See - (2) (C)y
You suggest that the express inclusion of these references corporations and estates Lndicstcs legislative intent term “registrant” refers to each beneficial owner a business profession which operates undzn assumed name. Because you state is on,! who must file a certificate, under your that a “registrant” interpretation each benefi:lsl owner would have to separately.
We disagree with your conclusion that a “registrant” is one who must file. but we agree that “registrant” refers to the beneficial owners 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 (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 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 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) from l quJting “any
The Jmbi~ity of the tc:m "registrant" rcsultr in $ubJeCtiOn 36.10(~) vith “regiStrant” in the JJUIJ Sub- peroou" AJ indicJted, JecKloa 36.10(~) raquirsr any UninCOKpOrJted Section. "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- It do&J not require em unincorporated “registrant” to file a c(lte. certificate. Although Attorney General Opinion W-263 (1980) referred to section 36.10(~)(2)(B) 4:s requiring the “registrant” file an to rhe 1Jtent ambiguity the term WJS not assumed name CertifiCJte, 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 under the Drovisions this Chapter or of:her lav. (Empbasi s added). nowhere does the statute require each “registrant” to
Nevertheless. an assumed name cel:tlficate. Therefore, we conclude “registrant” does refer to the various beneficial owners of unincorporated business or profession operating under an assumed name but does not require each beneficial file aF assumed name owner certificate.
The statute merely requires that each of the “registrants” be included on 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 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 file an assumed name c~crtlficate. the provision need not expli- must 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 owners falling within the list of various possible “registrants” must provide :,pecified 36.10(a)(2). For example, assume the entic), conducting business under an assumed name *5 Aonorable hargaret Moore - Page 5
is a partnership (named C) with two partners, A and 8. 36.10(a) requires the filing one certificate for C which contains ~11 of the beneficial ouners l=ed 36.10(a)(2) as Thus, A mwt provide the information required of A in “registrants.” the information and B must also provide subsection 36.10(a) (2). 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 or by his stated therein representative attorney in fact, and in the case of any person not an individual, the name of vhich is required be stated theresin, 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, anyone having comparable autho,c:Lty, as the case may be, of such Any c&!lficatc executed and acknowledged person. by an attorney l.n fact shall include J statement such attorney fact has been duly authorized In writing by his principals to execute same, and acknowledge (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 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 JJCh unincor- porated entity l,perating under an assumed name to one certi?icate lists which owner(s) appear:.ng as “registrants” in subsections (2) (A)-1:X). The certificate must contain about each “registrant” required by subsections Xi. IO(a) (2) (A)-(E).
Honorable Margaret Moore - Page 6 36.10(b) does not require esch partner of a reSistrant partnership indivi- dually execute the assumed name certificate.
truly you 3,iLa Ver .
JIM MATTOX Attorney General Texas TOM GREEN
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