### THEATTORNEY GENERAL

OFTEXAS

GERALD C. MhNN AUSTIN 11. TEXAS

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Gzzxu~HAz.

Honor&bile

Will Mann Richardson As~lstant~S~cretargof State hustln, Texas

Dear Sfr: OpinionNo. 

### O-4353 Re: Corporations i Sections 2 and 9 of Article 1302, ,R.C.S.

Your request for opinion has.been received and‘carefullg consideredby this department. We quote from your request as follows:

'We are enclosingherewith an application. foil a bhtititep

for the Zion Lutheran Social Ass.ociatlonmarked 'ExhibitB'.

-'"You will note that In the preamble of the charter IF is statd.that~a corp6ratlonwishes to-comeunder the provisions of chapter goof Trtle 

### 32 bf the-Revisea civil Statutes, 1925: The purpose of the corpdration is'st&tsd.tobe &.benevblent one 'Themaintenance, operation, acqultiitlon

an&control of recreational facillties for the exclu'srve benefit of and In the Interests'

of its members aiia forwhich no profit shall accrue to the corporation'. We have advised the'lncorporators that the corporation coul&be 'formed

under Subdivision 9 oftArtlcle 1302'as a sports club paying the $50.00 flling 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 shouldbe exempt from,franchisetax and shouldpay only the $10.00 filing fee. We call your attentFon to the fact that the purpose clause contains the provision 'forthe exclusivebenefit of and in the interest of its members'.

"Wew0ula appreciate an opinion from your Department as to whether such a corporationHonorable Will Mann Richardson, page 2 

### o-4353

shouldpay the $50.00 filing fee and annual tax, or whether.there is such a benevolent corporationas should be exempt from tax and pay only the $10.00 filing fee."

The case of Evans, et ux v. Southside Place ParkAssociation, 

### 154S.W. (2a) 914, referred~toin your letter, Is not i?i

point and does,not touch the question involvedinyour request.

It is cur opinion that the proposed corporation cannot be chs~rtered

under Subdivision 2 of Article 1302, Revised Civil Statutes, as a "benevolent"corporation.,See authorities cited in opinionNo. O-3991 of this department, a copy of which Is enclosedherewith for your information.

It is our further opinion that the proposed corporatiM. %danfiot be incorporatedunder Section 9 of Article 1x02, R.C.S., &s an "innocent sports" corporation. See authorities cited in 6pinlon'No.

### o-2866of this department, a copy of which is enclosed herewith for your information. See also the case of Smith 

### v:Wortham,'157S.W. 740, (Sup; Ct; oft Texas). Also see opinion of this dkptirtment datea March 7, 1933~, wpitten by Honbrable PatDougherty, A5slstant Attoiney~Generalof 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

tinderSection 9 of Article 1302,R.C.S.; should tipecifically

name the "Innocent sport or Innocent sports" to' be sponsoredand that the Secretary of State shoulddisapprove the charter of a'proposed corporation applyingunder said sedtlon to %uppo*t, sponsor and encourage Innocent sports among Itsmemberss*ch as wrestling, boxing and various other and similar sports for the amusement of Its members".
Since the proposed corporation cannot be legally chartered iindereitherSection 2 br Section 9 ofArticle 1302, R.C.S., sour questionwith reference to fees and franchise taxes therefore becomes moot.

WJF:GO:wc

hP&XlED FEE 10, 1942 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL Yours very truly ATTORNEY GENERAL OF TEXAS
By s/Wm.J. Fanning Wm. J:.Fanning Assistant

Approved Opinion Committee By BWB Chairman