Case Information
*1 Honorable Paul T. Holt
County %totiney
Travis County
Austin, Texas Dear Sir: Opinion No. O-1630
Re: County Clerk's method of indexing '!Assumed Name" as required by Article 5'926, R.C.S.
We have for reply your letter of October 25, wherein you request the opinion of this Department as to the method to be employed by the county clerk in the indexing of "Assumed Name" certificates filed in that office pursuant to the-terms of Article Revised Civil Statutes.
The pertinent part of your request is: "9 * 4+ 3 should the (Assumed Name Index' be kept and indexed according to the person filing same or should this record be indexed according to the name set out in the assumed name certificate?" Your request is a natter of statutory construction necessi- tating diligent inquiry into the legislative intent fostering the enactment of this statute.
Clary V. Hurst9 138 S.W..566, 104 Tex. 423
Roy v. Schneider, 221 S,W. 880, 110 Tex.
Popham v. Patterson 51 S.W. (2) 680,.121 Tex. 61.5 A proper background must be provided by,setting out the pro- visions of Article 5924, Revised Civil Statutes.
"No person shall conduct or transact business in this State' under any assumed name or under any designation, name, style, corporate or otherwise other than the real name of each individual conducting or transacting such business, unless such person shall fine in the office of the county clerk of the counties in which such person conducts, or transacts or intends to conduct or transact such business, a certificate setting forth the name under which such business is, or is to be, conducted or transacted, and the true full name or names of each person conducting or transacting the same, with the post-office address of each. 3t +? 3bfl
Honorable Paul T. Halt? Page 2, 0-1630
Continuing, Article 5’926, Revised Civil Statutes, provides that:
"Each county clerk shall keep an alphabetical index of all persons filing certificates provided for herein, and for in- dexing and filing each certificate shall receive a fee of one dollar.% 0 it"
To properly arrive at the intent of the Legislature we must constantly keep before us the evil'sought to be remedied. A clue is afforded by the terms of the emergency clause.: "The fact that there is now no law providing for the registration of the names of persons doing business under assumed or ficti- tious names, and that absence of such law impairs the stability of credits in the stateit % 0 The 'Assumed Name Act', Acts of 37th Leg., Sec. 7."
Thus we see that the purpose of the Legislature in passing this act, as indicated in the emergency clause, was to prevent the impairment of credit,s in this State. See Bristol v. Noble Oil and Gas Co., 273 s.v~, 946. The ccurt in the Bristol case, supra, cites with approval the followin extract from the leading case of Cashin v. Pliter, 168 Mich. 3 6, 134 N.W. rendered by the Sup. ct. of Michigan.
"Parties doing business with those acting under an assumed name have a right under the law to know who they are. 5t +t <t" It is evident that our Legislature enacted this law, seeking thereby, to guard the economic and business mores of this State from the conceivable dangers lurking behind the use of a fictitious name by persons engaged in business. In furtherance of this design, they provided that the certificates showing the mythical names should be filed and indexed in the office of the county clerk for the benefit of al:~ persons fnterested. In essence9 Article .592b9 states that, "No perscn shail engage in business under an assumed name unless such person shall ffle a certificate with the county clerk giving each person connected therewith." Article provides'in express ianguage that, "Each county clerk shall keep an alphabetical index of all persons filing certificates f:- * 33 and for indexing and filing each certificate~shall receive a fee i:- % 5t.' (underscoring ours). We think that it is clear that the Legislature, by the use of the language set out above, intended to distinguish between an index of the persons filing certificates and an index of the certificates so filed. Since the extrsctlonof the truth from a fictitious cloak was the causa sui of the statute, it is incon-
Honorable Paul T. Holt, Page 3, 0-1630
ceivable that the Legislature intended to provide for an indexing according to the "Assumed Name" only.
Possibly, as you suggest, it would be more convenient to index the files according to the "Assumed Name" only; however, when the legislative intent can be gathered from the plain and unambiguous language of a statute a matter of convenience will not grant sufferance for the finding of some other intent. Obviously the single purpose of this statute is to afford the public an opportunity to know the identity of ,persons operating businesses under assumed names. See 30 Tex. Jur. Cooper Cotton Co. v. First State Bank, 37 ‘S.W. (2) 80.5.
Therefore, to adequately serve the'spirit of the statute, and to give force and effect to the intention of the Legislature, we clerk should cross-index the are of the opinion that the count 9 certificate files both as to the 'Assumed Name" and the name of the person filing said certificate; thus affording a two-way approach to the problem.
Trusting the above satisfactorily answers your inquiry, we are
Yours very truly ATTORNEY GENERAL OF TEXAS s/ Benjamin Woodall BY Benjamin Woodall Assistant By s/ Grundy Wiliiams Grundy willlams APPROVED NOVEMBER 14,
s/ W. F. Moore
FIRST ASSISTANT ATTORNEY GENERAL
GW:RS/cg
APPROVED OPINION COMMITTEE By BWB, Chairman