Case Information
*1 THEATTORNEY GENERAL OFTEXAB * lS7ll AUOWIN.TNSAE April 23, 1975 Opinion No. *‘St39
The .Honorable Robert E. Stewart Commirrionar Re: Maximum rate of interest
Depertment of Banking which may be charged on a John H. Reagan State Office Bldg. pertnerrhip compored Aurtin, T-r ‘70701
rolely of two corporations. , Dear Com@rrioner Stewart:
You have requeoted our opinion regarding the meximum rate of intereet whichmay be cherged on e loen to a prtnerehip compored two corporatiomrt Article 16, rection 11 of the Texer Conrtitution provide8 t&t:
. . . in the ebsence of lcgirletion fixing maximum
r8tes of interert all contractr greeter rete of interert than ten per centum (10%) per 8nnum &all
be deemed ururioua Under article 5069-l. 02, the maximum rete of interert on ny lan il limited ten percent per annum unle## euch rete ia otherriae fixed by 18W. Article 1302-2.09, however, provida an exception to the rule where the debtor ie corporetion: . . . mey agree to end rtipulete
. . . corporation8 for eny rete of interert ea ouch corporetion may determine, not tbcrxceed one and one-helf percent (1 l/2%) month, on ny . . . debt . . . or other obligetion much corporation , . . , end much inrtencem, the cleim or defenre of uwry by ruch corporation, itm l uc cea ao rs, ‘guerentorr, aarignm anyone on itm beNlf io prohibited *2 . .
The Honorable Robert Shwrrt (H-589)
You 8rk whether a partnership solely of two corporrtiibnr m8y be deemed a “corporation” for purpoeer of article 1302-2.09, a0 ae to qu8lify for loan at rats of interaat in exceee ten percent per rnnuni.
By i 1973 amendment to the Texae Buainere Corporatidn Act, every corporation WIT granted the authority:
[t]o be en orgrnieer, partner, member, arrociate: o.r mana@er of any partnerrhip. . . . Tex. Buti. C&p; Act, art. 2.02A(lg).
It ie therefore clear that two corporetionr may form a partnerrhip purnuant to Texam law.
Although the Texae Uniform Partnerrhip Act provides that “[a]11 partnera Are liable jointly and severally for all debtr and obligations of the partnership, ” article 6132(b), rection 15, V. T. C. S. , it ir aleo true tbat the partnerehip itrelf ir liable for itr own debts. Rule 28, Texar Ruler of.Civil Procedure, grrntr to ny partnerrhip the authority to:
. . . sue or be sued in ita own partnership . . .
name the purpose ,of enforcing for againrt it a rubrtantive right. erticle 2223, V. T. C. S., provider that, in canon where a
Furtherm,ofe, suit ir brought: ” against reveral partnero jointly indebted
upon contract . . . judgment may be rendered therein gainrt euch partnerrhip and gainrt the pertnere actually served.
According to one court, the effect of Rule 28:
* . . ie treet the partnermhip ee a legal entity, at leert to the extent that 8 judgment may be obtained by it or a judgment may be enforced againrt it. . Johaaon v. Pioneer Mortgage Co., 264 S. W. td 761 (Tex. Civ. App. --El Paro 1954, writ dirm’d.) *3 The Honor8ble Robert Stewart (H- 589)
We h8ve diecovered no caee in any American jurisdiction which would lead to the conclusion that a partnerrhip composed of two ir 8nything other than a partnership. It is therefore our corporationa opinion tb8t 8 p8rtnerahip formed and existing in accord8nce with the terms the Texao Uniform Partnerrhip Act and composed solely of two corporationr,may not be deemed 8 “corporation” for purpoacn rrticle 1302-2.09, rnd that, aa 8 result, ten percent per annum is the m8ximum rate of intereat which may be charged on a loan to such an entity. You have not inquired, 8nd we do not rerch the question, whether 8 corpomte member of a partnership could itrclf interpose the defense of uaury 8 suit on a partnerrhip debt on which the rate of interest ~8s gre8ter th8n ten but leas than eighteen percent 8nnum.
SUMMARY Ten percent per annum in the, maximum rate of ‘. ‘: : interert which may be charged on a a p8rtnerehip of two corporations. Very truly yours, A?& JOHN L. HILL Attorney General of Texas APPROVED:
73LsP-wL
DAVID M. KENDALL, Firrt Aaairtant
Opinion Committee
1R