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 in pertinent 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 such business unless such person 

or persons shall file in the office of the 

county clerk of the county or counties in 

which such person or persons conduct, or 

transact or intend 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 or 

real full name or names of the person or 

persons conducting or transacting the same, 

with the post-office address or the addresses 

-of said person or persons. Said certificate 

shall be executed and duly acknowledged by 

the person or persons so conducting or 

intending to conduct said business in the 

manner now provided for acknowledgment of 

conveyance of real estate., 

p. 4038 
The 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 know who is operating a business under an 

assumed name 

O'Donnell, 

3; s~,~x2&~ gt-y;,g g31 

no writ). Article 5924.1 applies to partnerships. Eastei 

Poultry Co. v. Benefield, 268 S.W.2d 270 (Tex. Civ. App. -- 

Beaumont~S~ no writ). You suggest that it does not apply 

to limited partnerships because they must reveal the names 

of all partners in the certificate of limited partnership 

filed with the Secretary of State. V.T.C.S. art. 6132a, 9 3. 

However, we believe that limited partnerships operating 

under an assumed name must 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, the assumed name statute 

requires a filing with the clerk of every county where business is transacted, thus providing notice more accessible 

to persons dealing with the firm than does the certificate 

filed with the Secretary of State. Since the assumed name 

law does apply to limited partnerships, we will address your 

questions relating to the persons who must 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 the name of a limited partnership as 

the assumed name, which certificate has been 

executed and acknowledged by a general 

partner of such limited partnership? 

2) Is the County 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. 4039 
The 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 said business." The business of a limited partnership is conducted by general partners, limited partners 

takins no part in the manasement. 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 in part, rev'd in 

;;J:,o; ;gf:ezrounds, 526 S.W.2d 543 (TG. 1975). Thus, 

partnership operates under a name other than 

the names of its-general partners, the general partners must 

file the assumed name certificate. 

Although some provisions of the assumed name statute 

refer to owners. we believe thev - refer onlv a to those ~~ owners ~~~ 

who exercise some control over the business. Corn are V.T.C.S. 

art. 5924.1 with arts. 5925 and 592713. See Ho I+-. t v. 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 to persons "operating" under assumed names. See 

M$Carley 5. Welch, 170 S,W.2d 330 (Tex. Civ. App. -- Dal= 

43, no writ)d Cooper Cotton Co. v. First State Bank of 

O'Donnell, supra. 

-- 

In Attorney General opinionm6m'lijir 

we decided that the county clerk could record an assumed 

name certificate executed by the nominee of an unincorporated business trust who would conduct the businss, even 

though it was not executed by the trustees who owned the 

business. A distinction between owners and owner-operators 

of the business applies more forcibly to the limited partnership. As inactive investors who may 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 it operates under a name other than the names of 

the general 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 the negative and your second in the affirmative. 

With respect to your third question, we do not believe that 

the presence of these additional signatures invalidates a 

certificate that contains all information required by article 

5924.1. See Attorney General Opinions H-426 (19741 and H146 (1973). The clerk must file an assumed name certificate 

signed by all partners, general and limited. See V.T.C.S. - 

art. 6591. 

Your last question is as follows: 

If the County Clerk is required by law to 

file the above described instrument, should 

the County Clerk's index show the name of 

the general partners as the owners of the 

business or should the index show the names 

arid addresses of all the partners, general 

and limited, as the owners of the business? 

Article 5926 sta'tes that the "county clerk shall keep 

an alphabetical index of all persons filing certificates 

provided for herein.! Since only the general partners are 

required to file "certificates provided for herein" the 

clerk's index need only show the names of general partners 

as Owners of the business. See Attorney 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 the business. 

Vary truly you_r.s, 

Y &A.)& . 

HN L. HILL 

ttorney' Qeneral of Texas 

p. 4041 
I 

. .’ , 

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

Opinion Committee 

km1 

p. 4042