## Tmc I%~~~~~~~ GENERAJ, OFTEXAS

AUSTXN. **%k?CAS** 78711 April 4, 1977

The Honorable Joe Resweber Harris County Attorney Harris County Courthouse Houston, Texas 77002 Opinion No. H-970

Re: Filing of assumed name certificates of limited partnerships.
Dear Mr. Resweber:
You have asked four questions about the duties of the county clerk with regard to filing assumed name certificates of limited partnerships. The assumed name statute, enacted in 1921 and now codified at articles 5924 through 5927,V.T.C.S., reads inpertinent part:

No person or persons shall carry on or 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 or names of the individual or individuals conducting or transacting suchbusiness unless such person or persons shall file in theoffice of the county clerk of the county or counties in which suchperson or persons conduct, or transact or intend to conduct or transact such business, acertificate setting forth the name under which suchbusiness is or is to be conducted or transacted, and the true or real fullname or names of the person or persons conducting or transacting the same, with thepost-office address or the addresses -of said person orpersons. Said certificate shall be executed and duly acknowledged by the person or persons so conducting or intending to conduct saidbusiness in the manner nowprovided for acknowledgment of conveyance of real estate.,

p. 4038The Honorable Joe Resweber -page 2 (H-970)

V.T.C.S. art 5924.1. The purpose of article 5924.1 is to let the public knowwho isoperating abusiness under an assumed name O'Donnell, 3;s~,~x2&~ gt-y;,g g31

nowrit). Article 5924.1 applies topartnerships. Eastei Poultry Co.v. Benefield, 268 S.W.2d 270 (Tex.Civ. App. -- Beaumont~S~ nowrit). You suggest that itdoes not apply to limited partnerships because theymust reveal the names of all partners in the certificate of limited partnership filedwith the Secretary of State. V.T.C.S. art. 6132a, 9 3. However, we believe that limited partnerships operating under an assumed namemust make the filing required by article 5924.1 The Legislature expressly excepted corporations from the assumed name statute, indicating that persons operating as other business entities must comply. V.T.C.S. art 5927a. In addition, theassumed name statute requires a filing with the clerk of every county where business is transacted, thus providing noticemore accessible topersons dealing with the firm thandoes the certificate filedwith the Secretary of State. Since theassumed name law does apply to limited partnerships, wewill address your questions relating to thepersons whomust sign the certificate.
Your first three questions are as follows:

1) Is the County Clerk required by law to file for record an assumed name certificate stating thename of a limited partnership as the assumed name, which certificate has been executed and acknowledged by ageneral partner of such limited partnership?
2) Is theCounty Clerk required to file such assumed name certificate when it is executed and acknowledged by all the general partners? 3) Is the County Clerk required to file such assumed name certificate when it is executed and acknowledged by all of the partners, both general and limited?

p. 4039The Honorable Joe Restieber - page 3 (R-970)

Article 5924.1 applies to all persons who transact business under any name "other than the real name or names of the individual or individuals conducting or transacting such business." The certificate must be executed and acknowledged by the "person or persons so conducting or intending to conduct saidbusiness." The business of a limited partnership isconducted by general partners, limited partners takins nopart in themanasement. V.T.C.S. art. 6132a. SS 8, 10; ll;-Delaney v. Fidelity Lease Ltd., 517 S.W.2d 420- (Tex.Civ. App. -- E Paso 19741, aff'd inpart, rev'd in ;;J:,o; ;gf:ezrounds, 526 S.W.2d 543 (TG. 1975). Thus,

partnership operates under aname other than thenames of its-general partners, thegeneral partners must file theassumed name certificate. Although some provisions of the assumed name statute refer to owners. we believe thev referonlv to those owners

- a ~~ ~~~ who exercise some control over the business. Cornare V.T.C.S. art. 5924.1with arts. 5925 and 592713. See HoI+-. tv. Giles, -- 240 S.W.Zd 991, 993-94 (Tex. 1951) and Rxty Trust Co. v. Craddock. 112 S.W.2d 440. 443 (Tex.1938). These orzszns do not bring limited partners within the.terms of article 5924.1. The case law consistently treats the statute as applicable topersons "operating" under assumed names. See M$Carley 5.Welch, 170 S,W.2d 330 (Tex.Civ.App. -- Dal= 43,nowrit)d Cooper Cotton Co.v. First State Bank of O'Donnell, supra. -- InAttorney General opinionm6m'lijir we decided that the county clerk could record an assumed name certificate executed by the nominee of an unincorporated business trustwho would conduct thebusinss, even though itwas not executed by the trusteeswho owned the business. Adistinction between owners and owner-operators of thebusiness applies more forcibly to the limited partnership. As inactive investors whomay neither transact partnership business nor include their names in the firm name, limited partners do not have to file assumed name certificates under article 5924.1.

A limited partnership operating under the names of all general partners need not file anything under article 5924.1. If itoperates under a name other than the names of thegeneral partners, all the general partners must file

p. 4040.

,

The Honorable Joe Resweber -page 4 (H-970)

under article 5924.1.. Therefore, we answer your first question in thenegative and your second in theaffirmative. With respect toyour third question, we do notbelieve that thepresence of these additional signatures invalidates a certificate that contains all information required by article 5924.1. SeeAttorney General Opinions H-426 (19741and H146 (1973). The clerk must file an assumed name certificate signed by all partners, general and limited. SeeV.T.C.S. - art. 6591.
Your lastquestion is as follows:

If the County Clerk is required by law to file the above described instrument, should theCounty Clerk's index show thenameof thegeneral partners as theowners of the business or should the index show thenames aridaddresses of all the partners, general and limited, as the owners of thebusiness? Article 5926 sta'testhat the "county clerk shall keep an alphabetical index of all persons filing certificates provided forherein.! Since only thegeneral partners are required to file "certificates provided for herein" the clerk's indexneed only show the names ofgeneral partners as Owners of thebusiness. SeeAttorney General Opinion O-1630 (1939). -

SUMMARY
The general partners of a limited partnership operating under an assumed name must execute, acknowledge, and file the assumed name certificate required by V.T.C.S. art. 5924.1. The county clerk's index should show the names of the general partners as owners of thebusiness. Vary truly you_r.s, 

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. HN L.HILL ttorney'Qeneral of Texas

p. 4041I . .’ ,

The Honorable Joe Resweber -page 5 (R-970)

Opinion Committee
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p. 4042