### E:TT~BBNEY 

### GENERAL OFTEXAS

PRICE DANIEL ATTOIlNEYGENERAL 

### AU~TXN II. TEXAS March 9, 1948

Reoonsideration of Opinion

No. V-4194. Hon. Paul H. Brown Secretary of Stats 'Austin,Texas ATTN: Wm. E. Stapp chief )Charter Division
Dear Sir: This Department has carefully considered your request of December 4, 1947, for a reconsideration of Opinion No. V-419, together with thebriefs submitted by the attorneys for the United States Trust Company of New York and other similar corporations. The entire opinion file, together with thebriefs above referred to,have been carefully conaSdered individually and in conference by various members of this Department; and in such consideration the intention of the Legislature and the equities governing the fndividual factual situations have been carefully weighed.
It is.the view of this Department that prior to the enactment of theTexas Banking Code of 1943 (Title 16, Chapters 1-9,Arts. 342-101 to 342-911, inclusive, Vernon's Annotated Civil Statutes), the sole statutory authority concerning the use of theword "trust"by a corporation in itsname, stationery, or advertisSng existed by virtue ofArt. 491, Revised Civil Statutes of Texas, 1925, which is inpart as follows:
"It shall be unlawful for any incorporated bank other than State bsnking corporations and national banks to advertise orput forth any sign as a bank, bank and trust company or savings bank, or inany way solicit or receive business as such or as any auah, or to use as their name or part of their name, or in or upon any sign, advertising, letterhead or envelope thework 'bank', rbanker,f 'banking,' 'truat,r'truat company,? rsavings bank,' *savings,' or any other which may be confused with the~name ofcorporations organized under this title.~,, Corporations heretofore organized under the general laws of this State, and foreign corporatrona heretofore orhereafter authorseed to dobusiness in this State,-. -. .
Hon. Paul H. Brown, Page 2,Reconsideration ofV-419

forfeit its charter, or if

### a foreigncorporation, itspermit to dobusiness within this State.
. . .'I(Emphasis ours).
It ismanifest from a reading of the foregoing statute that from the time of thepassage of this Act In 1905no domeatio corporation other than State banking corporations and national banks oould be granted a charter inTexas if the oorporate name contained 

### anyof the forbidden words named in the statute. However, it

### waspossible 

### forany foreign corporation, whloh was authorized by its charter provisions touse such prohibited name orpart thereof, which had theretofore obtained apermit to dobusiness in Texas or which might thereafter obtain such a permit to use the prohibited words ss a part of its corporate name, provided that such name was followed by words "without banking privileges," Although this article was a part of the general provisions of Title 169 Revised Civil Statutes of 1925, which dealt generally with the subject ofbanks and banking, nevertheless, it was a general statute affecting all corporations. Under the prov isiona of this law, permits were granted to foreign corporations which contained the forbidden words in their corporate names;and it ispresumed that the terms ofArt. 491 relating to theuse of the words %ithout banking privileges" were complied with by such corporations. However, 1943, when the Forty-eight Legislature enacted the Texas Banking Code of 1943, it specifically repealed Art. 491, Revised Civil Statutes of Texas, 1925, by the terms ofArticle 342-911, V.A.C.S., and enacted in lieu thereof Art. 

### 342-902, V.A.C.S., quoted inOpinion No. V-419. Here therewas a specific repeal of the only legislative authority for the use of theforbidden words in the corporate names of foreign carporations obtaining a permit in this State, andno such authority then existed for the granting of such permit. In fact itwas specifically forbidden by theprovisions ofArticle 342-902 above referred to. That thiswas the intention of the Legislature was further evidenced by that part ofArt. 342-902 which states as follows: "This article shall not bar an individual from acting in sny fiduciary capacity, ifhe doesnot hold out to the public thathe is conducting anybranch of the trust business." (Emphasis ours) While it is true that there 

### aremany decisionsto the effect that the word "individual" shall be construed to include the word "corporation" where the context clearly so indicates, nevertheless, such inclusion isnot apparent when Art. 342-902 isread as a whole.Hon. Paul II.Brown, Page 3, Reconsideration of V-419

Inview of the foregoing, we are constrained toadhere to our original Opinion No. V-419.

* Yours very truly ATTORNEY GENERAL OFTEXAS s/ C. K.Richards


### BY C. K. Richards

Assistant
CKR/JCP/cg