JIMMATTOX .qttorneyGeneral

Supreme Court Building P. 0. BOX 1234S Austin. TX. 78711. 234S 5121475.2301 Telex 9101874.1387 Telecopier 5121473.0233

714 Jackson, Suite 700 Dallas, TX. 752024506 2141742.8944

4824 Alberta Ave.. State 160 El Paso. TX. 799052793 SlY332-3484

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200 Main Plaza. Suite 400 San Antonio. TX. 782052797 51212254191

An Equal OppOrtUnilYl Affirmative Action EmPlOW 

# TheAttorney General ofTexas

Dwember 21, 1984

Rooorable Margaret Moore Travis County Attomey P. 0. Box 1748 Austin, Texas 781167 Opinion No. JN-259 Re: Meaning of “registrant” for purposes **of** section 36.10 of the Business andCommerceCode DearMs. Moore: You inform us that different counties presently apply differing requirements for t’w assumed namecertificates which must be filed for unincorporated businesses and professions. The inconsistent requirements apparently stem from the ambiguity of the term “registrant” in section 36.10(a)(Z) of the Texas Business and Commercial Code. According1.y. you zwk whether “registrant” refers **to** the business or professional entity which will operate under the assumed name or to the partner(s) or beher beneficial owner(s) of the entity. Section 36.10(a) first indicates which unincorporated businesses or professions must file assumed namecertificates and then sets forth the information tb,at must appear on the certificates. Subsection 36.10(a) requires that:

[a]ny pwson who regularly conducts business or renders -sessional services other than as a corporation in this state under an assumed name shall 

## fiih.

. . a certificate setting forth: (1) the assumed nameunder which such business or profwsional service is or is to be conducted or rendered; (2) if the registrant is:

(A) an individual, his full name and restdeoce address; (B) a partnership, (i) the venture or Flartnership name, (ii) the venture or rlartnership office address, and (iii) the full name of each joint venturer or $;eneral partner and his residence address if he is an individual or its office address if not an Individual;

p. 1152Honorable Margaret Moore - PII~C2 (m-259)



### (C) an estate, (I) the name of the eetate, ‘~~)thCstate’s office address, **If** any, and (iii) the full name of each representa t~lve of the estate and his residence address if he is an individual or its office address if not an Individual; (IO a real estate investment trust, (i) the name .of the trust, (ii) the address **of** the trust, (iii) the full name of each tmstee manager and his residence address i:! he is an individual and its office address if not an individual; or (E) a company other than a real estate investment trust, or a corporation. (i) the name of the company or corporation, (Ii) the s’tate, couniry; or other jurisdiction uader the laws of which it was organized, incorporated. or associated, and (iii) its office address.

. . . (Emphasis added). Before construing the! portion of subsection 36.10(a) which employs the term “registrant” and which governs the content of the certificate, a preliminary ,Jnderstanding of the scope of “any person” is necessary. This term colerols which unincorporated businesses and professions must file assumck namecertificates. Section 36.02 contains the definitions generally applicable in chapter 36of the code and defines “person” as follows:

In this chapter, unless the context otherwise requires:

. . . . (4) ‘Person’ includes an individual, partnersbip, company, or corporation.

. . . (Emphasis added). Neither corporations nor estates fall within the definition of

“any person” as employed i,n section 36.10(s). Because subsection 36.10(a) quoted above applies to the operation of businesses or professions “other than as a corporation” the context requires that

“any person” in subsection 36.10(a) be read to exclude corporations. Corporations operating as s:rs:hunder an assumed nameare dealt with in section 36.11 of the code rather than in section 36.10. Similarly. estates are excluded fron the definition of “person” upon the rationale that representatl.ves administering an estate can be easily

p. 1153tlonorablc Margaret goore - I’rgc 3 (JM-259) ,

identified. See Cement of EiarCommittee, Bus. 6 Cm. Code 136.02. The express enumeration **of** a particular subject in a statute implies the exclusion of all others. Carp v. Texas State Board of Examiners of Optometq, 401 S.W.Zd 639, 642 (Tex. Civ. App. - Dallas 1966). fl, 612 S.W.Zd 307 (TsK. 1967). ThUl, neither corporations or **estates** ated file an assunled name certificate when they operate as such under assumed names. .Thc present confusion arose because the remainder of subsection 36.10(a) contains a refererlce to these **two** entities, which have been excluded from the category of unincorporated “persons” whomust file an assumed name certificate. The provision includes a corporate

“registrant ,‘I see 536.10(s) (2)(E), and an estate “registranc.‘i See 536.10(a) (2) (C)y -
You suggest that the express inclusion of these references to corporations and estates Lndicstcs the legislative intent that the term “registrant” refers to each beneficial owner **of** a business or profession which operates undzn assumed name. Because you state that a “registrant” is on,! who must file a certificate, under your interpretation each benefi:lsl owner would have to file separately. Wedisagree with your conclusion that a “registrant” is one whomust file. but we agree that “registrant” refers to the beneficial owners of the entity or “person” as used in section 36.10(a) which is required to file an assumed name certificate. You base your interpretation of “registrant” upon two related maxims of statutory construction: first, that a statute be construed so that its various parts ,s’reconsistent and reasonable, Singleton v. Pennington, 568 S.W.2d 367 l:Tex. Civ. App. - Dallas 1977). aff ’d. 606 S.W.2d 682 (Tex. 1980). and second, that any construction bcoided which would makea provision a useless appendage. Carson v. Hudson, 398 S.U.Zd 321, 323 (Tex. Civ. **App.** - Austin 1966. no writ). Following these principles, your brief indicates that “[IIf ‘registrant’ refers to the entity actually using the assumed name rather than **to** the beneficial owner[s]. two portions of section 36.10 become

‘useless appendages.” You refer to subsections 36.10(a) (2)(C) and 36.10(a)(2)(E). which dea,l with estate “registrants” and corporate

“registrants,” respectivel:‘., However, an 1nterpret:‘r:ion of “registrant” which requires each of the beneficial owner(s) of anunincorporated entity operating under an assumed nameto file a cer,::Lficate rather than requiring one filing by the entity or “person” would makesection 36.10(a) internnlly inconsistent. The subsection would begin by excluding corporations and estates from filing an as!;umed name certificate and end by requiring such entities to file a ct,rtificate. Corporations would have to file under both sections 36.10 ,snd 36.11. Consequently, your construction of the :erm “registrant” we disagree with in the context of section 36.10(a).

### Honorable Narpret Moore*- **hp;o 4**  **(J+259)**

TheJmbi~ity **of** the tc:m "registrant" rcsultr from 

### l quJting “any peroou" in $ubJeCtiOn 36.10(~) vith “regiStrant” in the JJUIJ SubSection. AJ indicJted, JecKloa 36.10(~) raquirsr any UninCOKpOrJted "person" or entity (including an IodividuJl, partnerrhip. or UoioCOrporated CO~PJUY) who regulJrly cooductr buJinJJJ Or’renders **profes** SiOnJl JarviCeS under **JU** JsJu1ssd **ClJme** CO**file JO**  JSSuWd **CIJIDC**Certifi**c(lte.** It do&J

### not require em unincorporated “registrant” to file a certificate. Although Attorney General Opinion W-263 (1980) referred to section 36.10(~)(2)(B) 4:s requiring the “registrant” to file an assumed name CertifiCJte, rhe 1Jtent ambiguity of the term WJS **not** then in ~JSUC. Thus, the opinion’s reference to “registrant” is not controlling. The definition of “registrant” prescribed by section 36.02 does provide a source of confuskn:

‘Registrant’ mf?ansany person thJt has filed, or on whose behalf there has been filed, Jn Ed name certificate under the Drovisions of this Chapter or of:her lav. (Empbasis added). Nevertheless. nowhere does the statute require each “registrant” to file an assumed name cel:tlficate. Therefore, we conclude that

“registrant” does refer to the various beneficial owners of the unincorporated business or profession operating under an assumed name but does not require each beneficial **owner** to file aF assumed name certificate. The statute merely requires that each of the “registrants” be included on the assumed namecertificate. The context of “registrant” in section 36.10 contains a’nImplicit requirement that each category listed under subsection 36.10(a)(2) must be listed on the certificate if they are part of the entity operating under an assumed name. One entity or “person” for purposes of subsection 36.10(s) opernting under JU asked namemay be comprised of several “rJgiStrJnt6;” See; e.g., Luloc Oil Co. v. CJldwell County, 601 S.bl.Zd 789. 794 (Tex. (Xv. App.

- BeJuISOnt 1980, writ ref ’d n.r.e.); Attorney General Opinion MW-263 (1980); see also Bus. 4 Comm.Code 136.15 (indexIn &stem distlnguishes betveen certificate or statement and the individuals filing it). Because the various “registrants” are part of the entity which must file an assumed namec~crtlficate. the provision need not explicitly repeat that each coqonent of the entity, or each “registrant,” must be listed in the certl.f ’icate. Although only the “person” or entity operating under an assumed name need file sn assumed nJme certificate, all of the beneficial owners falling within the list of various possible “registrants” must provide the information :,pecified in subsection 36.10(a)(2). For example, assume the entic), conducting business under an assumed nameAonorable hargaret Moore - Page 5 (JM-259)

is a partnership (named C) with two partners, A and 8. Subsection 36.10(a) requires the filing of one certificate for Cwhich contains ~11 of the beneficial ouners l=ed in subsection 36.10(a)(2) as
“registrants.” Thus, Amwt provide the information required of A in subsection 36.10(a) (2). and B must also provide the information required of Bby subsection 36.10(a)(2). You also cl& about the execution andacknowledgement requirements of section 36.10. Subsection 36.10(b) provides:

A certificate filed under Subsection (a) of this section shall be executed and acknowledged by each individual whose name is required to be stated therein 

### or by his representative 

### or attorney in fact, and in the case of any person not an individual, the nameof vhich is required to be stated theresin, the certificate shall be executed and ackwvledged under oath on behalf of such person by iTs representative or attorney in fact or by a j%nt venturer. general partner, trustee manager: officer, or anyone having comparable autho,c:Lty, as the case maybe, of such person. Any c&!lficatc executed and acknowledged by an attorney l.n fact shall include J statement that such attorney in fact has been duly authorized In writing by his principals to execute and acknowledge 

### the same, (Emphasis added). The language in sec!:!.on 36.10(b) is clear. The section distinguishes “persons” who;Ire individuals from “persons” who are not. In the partnership examplr above (of A and Bas partners in C), any general partner or person with comparable authority of the registrant partnership may

### execute the certificate. It is not necessary for each partner of a registrant partnership to individually execute the certificate. SUNMARY

The term “auy person” rather than the term

“registrant” in section 36.10(a) of the Texas Business andCoaxerce Code controls which unincorporated businesc,es and professions operating under an assumed namemust file an assumed namecertificate. SeCtim 36.10(a) requires **JJCh** unincorporated entity l,perating under an assumed nameto file one certi?icate **which** lists the beneficial owner(s) appear:.ng as “registrants” in subsections 36.10(a) (2) (A)-1:X). The certificate must contain the information about each “registrant” required by subsections Xi.IO(a)(2) (A)-(E).

p. 1156Honorable Margaret Moore - Page 6 (JM-259)

Subsection 36.10(b) does not require esch partner of a reSistrant partnership to individually execute the assumed namecertificate.

Ver truly you 

# 3,iLa

.
JIM MATTOX Attorney General 

### of Texas TOMGREEN First AssistJnt Attorney General DAVIDR. RICEARDS Executive AJSiStJnt Attorney, General RICKCILPIN Chairman, Opinion Cossaittee Prepared by Jennifer Riggs Assistant Attorney General APPROVED: OPINIONCONMITTEE Rick Gilpin. Chairman Jon Bible Colin Carl Susan Garrison Tony Guillory Jim Moellinger Jennifer Riggs Nancy Sutton

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