                THEATTORNEY                       GENERAL
                                OFTEXAB                 *
                           AUOWIN.TNSAE           lS7ll




                             April   23, 1975


    The .Honorable Robert E. Stewart                 Opinion   No. *‘St39
    Commirrionar
    Depertment of Banking                            Re: Maximum rate of interest
    John H. Reagan State Office Bldg.                which may be charged on a
    Aurtin, T-r    ‘70701                            loan to l pertnerrhip   compored
                                                     rolely of two corporations.

,   Dear Com@rrioner     Stewart:

             You have requeoted our opinion regarding the meximum rate of
    intereet whichmay    be cherged on e loen to a prtnerehip    compored of
    two corporatiomrt   Article  16, rection 11 of the Texer Conrtitution
    provide8 t&t:

                   . . . in the ebsence    of lcgirletion   fixing maximum
                   r8tes of interert all   contractr    for l greeter rete of
                   interert than ten per    centum (10%) per 8nnum &all
                   be deemed ururioua      . . .

    Under article 5069-l. 02, the maximum rete of interert on lny lan il
    limited to ten percent per annum unle## euch rete ia otherriae  fixed by
    18W. Article 1302-2.09,   however, provida  an exception to the rule
    where the debtor ie l corporetion:

                   . . . corporation8    . . . mey agree to end rtipulete
                   for eny rete of interert ea ouch corporetion     may
                   determine,   not tbcrxceed one and one-helf percent
                   (1 l/2%) per month, on lny . . . debt . . . or other
                   obligetion of much corporation    , . . , end in much
                   inrtencem, the cleim or defenre of uwry by ruch
                   corporation,    itm luc c ea a o‘guerentorr,
                                                    r s,          aarignm
                   or anyone on itm beNlf io prohibited     . . .




                                             p. 2629
.   .




        The Honorable         Robert       E. Shwrrt        page   2   (H-589)




        You 8rk whether a partnership                   composed    solely of two corporrtiibnr
        m8y be deemed a “corporation”                     for purpoeer of article 1302-2.09,
        a0 ae to qu8lify       for    l   loan at   l   rats of interaat in exceee of ten percent
        per rnnuni.

                 By i 1973 amendment to the Texae Buainere                         Corporatidn   Act,
        every   corporation WIT granted the authority:

                              [t]o be en orgrnieer, partner,              member,  arrociate:
                              o.r mana@er of any partnerrhip.              . . . Tex. Buti.
                              C&p; Act, art. 2.02A(lg).

        It ie therefore       clear       that two corporetionr        may form      a partnerrhip   purnuant
        to Texam law.

                Although the Texae Uniform Partnerrhip            Act provides that “[a]11
        partnera Are liable jointly and severally        for all debtr and obligations
        of the partnership,   ” article 6132(b), rection 15, V. T. C. S. , it ir aleo
        true tbat the partnerehip     itrelf ir liable for itr own debts.     Rule 28,
        Texar Ruler of.Civil Procedure,         grrntr  to lny partnerrhip    the authority
        to:
                         . . . sue or be sued in ita own partnership         . . .
                         name for the purpose ,of enforcing for or againrt
                         it a rubrtantive    right.

        Furtherm,ofe,    erticle           2223,    V. T. C. S.,   provider      that,   in canon where a
        suit ir brought:

                              . . ”
                                  . against reveral partnero jointly indebted
                              upon contract . . . judgment may be rendered
                              therein lgainrt euch partnerrhip   and lgainrt
                              the pertnere actually served.   . . .

        According         to one court,       the effect    of Rule 28:

                              * . . ie to treet the partnermhip ee a legal entity,
                              at leert to the extent that 8 judgment may be obtained
                              by it or a judgment may be enforced againrt it.
                      .       Johaaon v. Pioneer Mortgage Co., 264 S. W. td 761
                              (Tex. Civ. App. --El Paro 1954, writ dirm’d.)


                                                               p. 2630
 The Honor8ble    Robert   E. Stewart      page 3         (H- 589)




         We h8ve diecovered     no caee in any American       jurisdiction   which
 would lead to the conclusion    that a partnerrhip    composed     of two
 corporationa   ir 8nything other than a partnership.       It is therefore our
 opinion tb8t 8 p8rtnerahip   formed and existing in accord8nce          with the
 terms of the Texao Uniform Partnerrhip        Act and composed        solely of
 two corporationr,may     not be deemed 8 “corporation”        for purpoacn of
 rrticle 1302-2.09,   rnd that, aa 8 result,   ten percent per annum is the
 m8ximum rate of intereat which may be charged on a loan to such an
 entity.   You have not inquired,   8nd we do not rerch the question,
 whether 8 corpomte     member of a partnership       could itrclf interpose     the
 defense of uaury in 8 suit on a partnerrhip      debt on which the rate of
 interest ~8s gre8ter th8n ten but leas than eighteen percent per 8nnum.

                                    SUMMARY

                       Ten percent  per annum in the, maximum rate               of ‘. ‘: :
                  interert which may be charged on a loan to a
                  p8rtnerehip   composed  of two corporations.

                                                          Very   truly yours,


                                                                 A?&
                                                          JOHN L. HILL
                                                          Attorney General      of Texas
 APPROVED:


73LsP-wL
 DAVID M. KENDALL,          Firrt   Aaairtant




 Opinion   Committee

 1R

                                                p. 2631
