THICAT-JYOECNHYGENERAL 

OF TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

July 10, 1948 

Non. Gee. B. Butler 

Chairman 

Board of Insurance Commissioners 

Austin; Texas 

Opinion No. V-630 

Re: The sufficiency of the submitted amendment to the 

charter of the Praetorians 

to effect an extension of its 

corporate existence. 

Dear Sir: 

lows: 

Your request for the opinion of this Department is as fol- 

“Enclosed you will please see Original Charter of 

Modern Order of Praetorians which shows by endorsement 

that it was filed in the Department of State April 1, 1898 and, 

by provision No. 4 that ‘the term for which said corporation 

shall exist shall be Fifty years from the date of its incorporation!. 

*‘Following the enactment of what is now Chapter 8, 

Title 78 of the Revised Statutes the Modern Order of Praetorians qualified thereunder and has operated under its provisions continuously. 

“The directors have submitted to this Department the 

enclosed original instrument~which has been styled ‘Amendment Extension and Renewal of Praetorian Charter’. You 

will observe that it purports to be the action of the Board of 

Directors and is duly executed by such directors. 

“Will you please advise me whether the enclosure last 

above described is sufficient to renew the charter of the 

Praetorian for the Fifty year period following April 1, 1948. 

If your answer is in the affirmative, will you please return 

the enclosure with your usual certificate of approval so as 

to permit it to be filed here. 

“If your answer is in the negative, will you please advise me whether the extension of the charter is controlled 

by the provision of Vernon’s Article 131% and if your adv,ica 

is in the affirmative,will you please advise me whether it is 

necessary to require the resolution therein referred to to be 
. . 

Hon. Geo. B. Butler, Page 2 (V-630) 

adopted at a regular or special meeting of the entire membership of the Praetorians or whether the expression of the 

membership may be obtained by resolution from the respective local lodges or from the supreme governing body, which 

is called the Supreme Senate.” 

The Modern Order of Praetorians was first incorporated 

on April 1, 1896, as a benevolent society under the provisions of Art. 

713, Ch. 11, Title.XXI, R.S. 1895, which is as follows: 

,“RELIGIOUS, CHARITABLE AND OTHER CORPORATIONS 

Article 

“Powers and privileges of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 713 

“Article 713.(637) Any religious society, military 

or fire company, literary, social, charitable or benevolent 

association, other than colleges, universities, academies 

or seminaries, or any grand or subordinate lodge, or other 

order of free and accepted masons, or of the independent 

order of odd fellows, may, by the consent of a majority of 

its members, become bodies corporate under this title, 

electing directors or trustees, and performing such things 

as are directed in the case of other corporations; and, 

when so organized, shall have all the powers and privileges and be subject to all the restrictions in this title contained, for the objects named in the charter, and shall have 

the same power to make by-laws for the regulation of their 

affairs as other corporations. Such directors or trustees 

shall not usurp or exercise the fu.nctions of the officers in 

charge of the spiritual affairs of any society.” 

Article 713, as amended by the Acts of 1899, page 236, is 

now Article 1396, R.C.S. 1925. 

In 1899, the 26th Legislature enacted S.B. 166, page 235, 

amending Art. 713, as the same is now found in the Revised Statutes, 

and adding thereto Art. 713a, which has been carried forward into 

the Revised Civil Statutes of ,1925 as Articles 1398, 1399, 1400, 1401, 

1402, 1403, 1404, 1405, 1406, and 1407. 

At the time of incorporation, its purpose clause was as 

follows: 

“2. The purposes of said corporation shall be: Benevolent: to relieve the necessities of the membe.rs thereof; to 

promote fraternity and social intercourse; to succor and 

assist members in time of sickness, death or destitution; 

the relief of orphans and,widows of deceased members; and 

to 1evyassessment.s upon the members thereof for the pur- 
. . 

Hon. Geo. B. Butler, Pa8e 3 (V-630) 

pose of providing mutual indemnity in case of accident, 

sickness or death. 

“This Incorporation is not for profit, but for the mutual aid of the members thereof; and funds collected from 

such assessments shall be devoted exclusively to the payment of indemnity in the case of sickness or death of, or 

accident to, the members thereof. 

“The expenses of said Corporation shall be met from 

assessments levied for that purpose, which in no case 

shall be greater than may be necessary to meet such expenses economically administered. 

“Believing that the highest civic wisdom is contained 

in the expressed policy of the fathers of the common-wealth 

of Texas to foster ard protect its citizens in the acquisition 

of homes, this Corporation shall also offer to its members 

the means of acquiring homes by mutual aid and co-operation, and shall authority to levy monthly assessments 

upon such of its-embers as shall desire to avail themselves 

of this aid, the funds so accumulated to be advanced to its 

members for the purpose of acquiring, building, or paying 

for homes. Members to whom such advances shall be made 

shall Cwtinue the payment of their, assessments and legal 

interest upon amounts so advanced until by easy installments 

an investment fund shall be created by which the same shall 

be returned. Such advances to members shall be secured by 

liens in favor of this corporation, for the benefit of its members, executed in compliance with law. The expenses of this 

home benefit department shall be provided for by deducting a 

fixed sum from monthly assessments collected, which shall 

in no case exceed the necessary requirements of the corporation economically administered, For this purpose only, said 

corporation shall have authority to accumulate and loan money 

to its members, and to erect or repair any building or improvement, and to accumulate and loan money for this purpose.” 

This purpose clause was modified insofar as the indemnity 

insurance feature was concerned by the provisions of Art. 3096, Chap. 

3, Title LVIII, R.S. 1895, which is as follows: 

“Art. 3096. Nothing in this title shall be construed to 

affect or in any way apply to mutual relief associations organized and chartered under the general incorporation laws 

of Texas, or which are organized under the laws of any 

other state, which have no capital stock, and whose relief 

funds are created and sustained by assessments made upon 
. . 

Hon. Geo. B. Butler, Page 4 (V-630) 

the members of said associations in accordance with their 

several by-laws and regulations; provided, that the principal officer of every such benevolent organization (not conducted by lodges a quorum of whose members meet in their 

respective lodge rooms at least once each month), shall be 

required to make an annual statement under oath to the department of agriculture, insurance, statistics and history 

on the first day of January of each year, or within sixty 

days thereafter, showing-- 

“1. Name of organization and where located. 

“2. Name and residence of officers.. 

“3. The salary paid each officer. 

“4. The gross amount of money received during the 

year, and from what sources. 

“5. The amount paid to policy holders on assessments 

to pay losses. 

“6. The amount paid out for all other purposes, stating in detail what purpose. 

“7. Surplus in the treasury, if any. 

“And should any such benevolent organization refuse or 

neglect to make an annual report as above required, it shall 

be deemed an insurance company conducted for profit to its 

officers, and amenable to the laws governing such companies.” 

Chapter 8, Title 78, R.C.S. of Texas, 1925, dealing with fraternal benefit societies was originally enacted as Acts 1913, page 220, 

and places under the jurisdiction of the Board of Insurance Commissioners the business of insurance by fraternal benefit societies as defined therein. The Board of Insurance Commissioners is given jurisdiction over these societies which were incorporated under its provisions and is given jurisdiction, over any society which was incorporated prior to the passage of the fraternal benefit act but which engaged 

in the business of writing fraternal benefit insurance policies by the 

provisions of Art. 4839, which is as follows: 

“Art. 4839. Powers retained--amendments 

“Any society now engaged in transacting business in 

this State may exercise all of the rights conferred hereby, 

and all of the rights, powers and privileges now exercised 

or possessed by it under its charter or articles of incorporation not,inconsistent with this chapter, if incorporated; 

or if it be a voluntary association, it may incorporate hereunder. But no society already organized shall be required 

to reincorporate hereunder, and any such society may amend 

its articles of incorporation from time to time in the, manner 

provided therem or in its Constitution and laws, and all such 

amendments shall be filed with the Commissioner (Footnote: 

Transfer of Commissioner’s powers and duties to Board of 
. . 

Hon. Geo. B. Butler, Page 5 (V-630) 

Insurance Commissioners, see ,art. 4682a, ante.) and 

shall become operative upon such filing, unless a later 

time be provided in such amendments or in its articles 

of incorporation, Constitution or laws. Acts 1913. p. 220,” 

The question therefore arises as to whether or not the original charter of the Modern Order of Praetorians, filed April 1, 1898, as 

a benevolent association was ever changed so that the Modern Order ofi 

Praetorians became a fraternal benefit society under the provisions of 

Chapter 8. 

The sole power given to the Directors or Supreme Senators 

as contained in the articles of incorporation, dated March 31, 1898, is 

as follows: 

“The Directors or Supreme Senators, of this Corporation are authorized to arrange for the adoption of bylaws for the government thereof, and to provide for any 

alterations, changes or amendments thereto which may be 

from time to time necessary to carry out the ends of this 

incorporation.” 

Article 4839 provides that “any such society may amend its 

articles of incorpqration from time to time in the manner provided 

therein or in its Constitution and laws.” If any valid amendments were 

made under the provisions of Chapter 8, such amendments must be 

made by virtue of the above caluse or by virtue of the Constitution and 

by-laws adopted by the society. The above clause only gives authority 

for the Supreme Senators or Directors, which terms seem to be synonymous, to arrange for the adoption of ‘by-laws and to provide for any 

alterations, changes or amendments in the by-laws. 

The Constitution which had been adopted by the Modern Order of Praetorians and which was in force June 10, 1923, provides in 

Art. XXV, the subject being “Amendments to This Constitution, * as 

follows: 

“Sec. 1. The Constitution of this Order may be amended at any session of the Supreme Senate by a majority vote 

of all Supreme Senators present and voting on a resolution 

setting forth the amendment sought to be made, and which 

has been published in the immediately previous issue of 

the official organ of this Order. 

“Sec. 2. Upon a petition of not less than 10 per cent 

of the members in good standing, provided that the petition from each Council petitioning is signed by a majority 

of its members in good standing, setting forth the part to 

be amended, the Executive Committee may order a vote 
Hon. Geo. B. Butler, Page 6 (V-630) 

to be taken by all Councils in good standing, and shall 

cause such proposed amendments to be published in the 

official organ thirty days before such vote is to be taken, 

and if the amendments so submitted shall receive the approval of three-fourths of all the members present in 

good standing in their respective Councils, as reported 

to the Executive Committee by the several Recorders, 

the same shall be declared adopted. 

“Sec. 3. The Executive Committee shall have power 

to make land adopt bye-laws not in conflict with this Constitution, as may be advisable in*carryi.ng out the objects and 

interests of this Order. 

“Sec. 4. All amendments to this Constitution shall be 

in force and take effect thirty days after the adoption thereof.” 

By reference to Sec. 1 it will be noted that the Constitution 

can be amended by a majority vote of all Supreme Senators under the 

circumstances set forth therein. The Supreme Senate and its powers 

,are set forth under Art. V, including the methods of meeting. The 

Board of Advisors created under Art. XI, and under Sec. 3 of ,said 

Article, “shall between the meetings of the Supreme Senate, exercise 

all its powers, except to change and modify or repeal this Constitution.” The Executive Committee created under Art. mas no authorityo do anything concenaing the Constitution, but it may under Sec. 3 

of Art. XXXV make and adopt by-laws not in conflict with the Constitution. The Directors or Trustees created by Art. XII of the Consti-, 

,tution seem to have no powers except to convey or encumber real estate belonging to the corporation by a vote of 2/3 of the Directors. It 

is provided further that the home office of the Order shall not be conveyed or encumbered except by authority of the Supreme Senate. 

From a resume of the Constitution and by-laws in effect 

on May 11, 1927, it would seem that no one except the Supreme Senate 

had the power to alter, amend, or repeal the provisions of the Constitution then in force. 

It~appears that a charter amendment; a copy of which is attached to the brief of The IWaetorians in the file, was filed with the 

Commissioner of Insurance on June 14, 1927. It also appears from 

the records of the Secretary of State that the corporation attempted to 

file this charter amendment with the Secretary of State, Mrs. Jane Y. 

McCallum, prior to that date,. but that she refused to accept it on the 

ground that the Secretary of State had no authority to file an amendment to the charter of a fraternal insurance society, since that was 

purely under the jurisdiction of the Board of Insurance Commissioners. Thereaft‘ar, it was sent to the Board of Insurance Commissioners and filed as above stated. No other amendments have ever been 
Hon. Geo. B. Butler, Page 7 ‘(V-630) 

filed in the.office of the Secretary of State. 

In analyzing this proposed amendment it is necessary to 

look to the basis of the amendment,w hich is set forth as follows: 

“BE IT KNOWN that at a regular meeting of the 

Supreme Senate of the Modern Order of Praetorians, in 

quadrennial session asembled, held at Dallas, Texas, 

on the 11th day of May7A.D; 1927, the following resolution was duly passed and adopted: 

‘RESOLVED that Article I, Section 1 of 

the Constitution of said Order be amended to 

read as follows: 

“This organization shall be known as The 

Praetorians, Its principal office shall be in the 

City of Dallas, State of Texas.“’ 

“I, John W. Payne, Secretary of The Praetorians, do hereby certify that the foregoing is a true copy of the minutes of 

the meeting of said Supreme Senate of said Order held on 

May llth, A.D. 1927. 

“WITNESS my hand and the seal of said corporation this 

the 18th day of May, A.D. 1927. 

“-8 - Jno. W. Payne 

Secretary 

“Sworn to and subscribed before me this 24th day of May, 

A.D. 1927. 

“-s- George Lintner 

Notary Public 

Dallas County, Texas,” 

From the foregoing it is readily apparent that the only amendment or change in the Constitution which was authorized by the 

body authorized to make such amendment or change was to change the 

first section of Art. I of the Constitution, so that the name of the society should become “The Praetorians” instead of “Modern Order of 

Praetorians.” 

However, a reference to the amended charter shows that 

after reciting the meeting of the Supreme Senate as above set forth, 

the Directors mentioned in Art. XIII, who are the same as the Board 

of Advisors, which latter, as stated above, has no authority to change, 

modify, or repeal the Constitution, then proceeded not only to change 
Hon. Geo. B. Butler, Page 8 (v-630) 

the name but to change the purpose clause of the corporation from that 

of a benevolent association to that of a fraternal benefit society under 

the provisions of Chapter 0, Title 78. 

Therefore, insofar as the charter amendment filed in 1927, 

with the Board of Insurance Commissioners attempted to change anything in the charter except the name of the society, it was absolutely 

null and void since such change was not authorized either according 

to its Constitution or by-laws or by virtue of any statutory authorities, 

the directors of the Modern Order of Praetorkns as such having no 

power either express or implied to change the purpose clause of the 

corporation. 

Since the amendment of 1927 was not legally effective, except to change the name of the corporation from “The Modern Order 

of Praetorians” to “The Praetorians.” and did not otherwise change the 

articles of incorporation or the charter or the purposes for which such 

corporation was originally chartered, namely, as a benevolent association with the rights and privileges enumerated in its articles of incorporation, it is still a benevolent association incorporated under the provisions of Art. 1396, R.C.S. 1925, and not under the provisions of Chapter 8, Title 78, R&C. S. 1925. 

The foregoing factual situation is identical, save for the 

corporate names, with the factual situation set forth in Opinion No. 

O-4160 by the Hon. Gerald C. Mann, Attorney General, addressed to 

Hon. W. J. Lawson, Secretary of State, and approved March 14, 1942, 

a copy of which is attached. In that opinion it was held that the amendment filed by the corporation extending its period of existence, having 

been filed with the Board of Insurance Commissioners who had no legal authority to receive and file the amendment for the purpose of extending the corporate life of the corporation, such filing was nugatory 

and did not comply with the general laws for extending its corporate 

existence as a charitable or benevolent association. 

This Department expressly approves the reasoning contained in Opinion o-4160, and therefore holds that the “Amendment Extension and Renewal of Praetorian Charter” forwarded with your request 

is not sufficient to renew the charter of the Praetorians for the fiftyyear period following A;:ril 1, 1948. 

Your second question is res’tated as follows: 

“If your answer is in the negative, will you please advise me whether the extension of the charter is controlled 

by the provision of Vernon’s Art. 1315~ and if your advise 

is in the affirmative, will you please advise me whether it 

is necessary to require the resolution therein referred to 

to be adopted at a regular or special meeting of the entire 

membership of the Praetorians or whether the expression 
Hon. Geo. B. Butler, Page 9 (V-630) 

of the membership may be obtained by resolution from 

the respective loca~l lodges or from the supreme governing body, which is called the Supreme Senate.” 

The charter of the Praetorians expired by virtue of its terms 

on April 1, 1948, and the only legal method whereby the corporation may 

be revived and its corporate existence may be revived and extended is 

under the provisions of Article 1315, R.C.S. which is as follows: 

“Corporations created for the support of benevolent, 

charitable, educational or missionary undertakings, the 

support of any literary or scientific undertaking, the maintenance of a library, or the promotion of painting, music 

or other fine arts, whose charter has expired by limitation, 

may revive such charter with all the privileges and immunities and rights of property, real and personal, exercised 

and held by it at the date of tbe expiration of its said charter, by viling. with the consent of a majority (~1 its stockholders, a new charter under the provisions of this chapter, reciting therein such original privileges and immunities and rights of property, and by filing therewith a certified copy of such original expired charter. Acts 1874, 

p. 120; G.L. vol. 8, p. 122; Acts 1883, p. 98; G.L. vol. 9, 

p. 404; Acts 1907, p. 301; Acts 1909, p. 226; P.D. 5942.” 

That this is the proper method of reviving the charter of 

such a corporation is in accordance with the rule of law laid down by 

the Supreme Court in the case of Flowers v. Pecos River Ry. Co., 

156 S.W. 260. Article 1315~ would be inapplicable since it applies only 

to corporations chartered under the general law. However, if the corporate existence of the Praetorians is revived under the provisions of 

Art. 1315, a copy of such amendment should be furnished to the Board 

of Insurance Commissioners as provided in Art. 4839, R.C.S. 1925. 

SUMMARY 

A benevolent society chartered in 1898 under the 

provisions of Art. 1396, R.C.S. 1925 and whose charter 

has expired by expiration of law may be revived only 

under the provisions of Art. 1315, R.C.S. 1925, although 

such corporation was engaged in the business of issuing 

fraternal benefit insurance policies under the provisions 

of Art. 4839, R.C.S. 1925.. The attempted filing with the 

Board of Insurance Commissioners of a charter amendment extending the li.fe,of the corporation under the provisions of Ch. 8, Title 78, R.C.S. 1925, prior to the expiration of its charter by operation of law, was without 
Hon. Geo. B. Butler, Page 10 (V-630) 

legal effect to extend the life of the corporation. Flowers v. Pecos River Ry. Co., 156 S.W. 260;;Opinion No. 

O-4160 to Hon. W. J. Lawson, Secretary of State, March 

14, 1742. 

Very truly yours 

ATTORNEYGENERALOFTEXAS 

CKR~/JCP 

ENCL. 

C. K. Rikhards 

Assistant 

ATTORNEYGENERAL