                                      The Attorney              General of Texas

JIM MATTOX                                                Dwember 21,        1984
.qttorney General


Supreme Court Building               Rooorable Margaret Moore                         Opinion No. JN-259
P. 0. BOX 1234S                      Travis County Attomey
Austin. TX. 78711. 234S              P. 0. Box 1748                                   Re: Meaning of “registrant”  for
5121475.2301
                                     Austin, Texas   781167                           purposes of section 36.10 of the
Telex 9101874.1387
Telecopier   5121473.0233
                                                                                      Business and Commerce Code

                                     Dear Ms. Moore:
714 Jackson, Suite 700
Dallas, TX. 752024506
                                           You inform us that different       counties presently   apply differing
2 141742.8944
                                     requirements for t’w assumed name certificates        which must be filed   for
                                     unincorporated    businesses   and professions.    The inconsistent   require-
4824 Alberta     Ave.. State   160   ments apparently      stem from the ambiguity of the term “registrant”        in
El Paso. TX.     799052793           section    36.10(a)(Z)    of   the Texas Business       and Commercial    Code.
SlY332-3484                          According1.y. you zwk whether “registrant”        refers   to the business    or
                                     professional    entity which will operate under the assumed name or to
 x01 Texas, Suite 700
                                     the partner(s)    or beher beneficial    owner(s) of the entity.
 “ouston. TX. 77002.3111
 713l22MSS3                                Section 36.10(a)     first indicates which unincorporated            businesses
                                     or professions    must file assumed name certificates   and then           sets forth
                                     the information     tb,at must appear on the certificates.                 Subsection
 803 Broadway. Suite 312
 Lubbock. TX. 7S401-3479
                                     36.10(a)   requires that:
 003/747-5233
                                                [a]ny pwson who regularly          conducts business or
                                                renders -sessional        services     other than as a
 4309 N. Tentn. Suite B
                                                corporation   in this state under an assumed name
                                                shall fiih.    . . a certificate
 McAllen. TX. 78501.1883
 3121582.4347                                                                        setting forth:

                                                   (1)   the assumed name under which such business
  200 Main     Plaza.   Suite 400               or profwsional    service is or is to be conducted
  San Antonio.     TX. 782052797
                                                or rendered;
  51212254191

                                                    (2)    if   the registrant      is:
  An Equal OppOrtUnilYl
  Affirmative Action EmPlOW
                                                               (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.   1152
Honorable   Margaret Moore - PII~C 2            (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 juris-
                         diction       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 name certificates.

       Section 36.02 contains  the definitions                 generally      applicable   in
 chapter 36 of 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:h under an assumed name are 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.     1153
tlonorablc   Margaret   goore   - I’rgc 3    (JM-259) ,




identified.      See Cement of Eiar Committee, 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” who must 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.
 We disagree    with your conclusion      that a “registrant”       is one who must
 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’re consistent            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 make a 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      ‘regis-
 trant’ 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 an unincorporated       entity operating under an
  assumed name to file a cer,::Lficate      rather than requiring one filing         by
  the entity or “person” would make section            36.10(a)   internnlly    incon-
  sistent.      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,    we disagree with
  your construction      of the :erm “registrant”       in the context of section
  36.10(a).
Honorable Narpret       Moore*-    hp;o   4   (J+259)




       The Jmbi~ity      of   the tc:m "registrant"       rcsultr     from lquJting “any
peroou"      in $ubJeCtiOn 36.10(~)         vith   “regiStrant”        in the JJUIJ Sub-
Section.       AJ indicJted,     JecKloa 36.10(~)       raquirsr     any UninCOKpOrJted
"person"      or entity   (including     an IodividuJl,      partnerrhip.    or UoioCOr-
porated      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?ans any 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.       (Empbasi s 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 name certificate.            The context of “registrant”
 in section    36.10 contains    a’n Implicit     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      name may 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 distln-
 guishes betveen certificate        or statement and the individuals            filing
 it).

       Because the various      “registrants”    are part of the entity which
 must  file   an assumed name c~crtlficate.      the provision   need not expli-
 citly   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 name
Aonorable   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 C which contains
~11 of the beneficial         ouners l=ed      in subsection     36.10(a)(2)     as
“registrants.”       Thus, A mwt provide the information       required of A in
subsection     36.10(a) (2).    and B must also       provide   the information
required of B by subsection       36.10(a)(2).

     You also cl& about the execution and acknowledgement                      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 name of 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 may be, 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    dis-
tinguishes   “persons” who ;Ire individuals     from “persons” who are not.
In the partnership    examplr above (of A and B as 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 certi-
ficate.

                                       SUNMARY

                 The term “auy person” rather             than the term
            “registrant”     in section        36.10(a)    of the Texas
            Business and Coaxerce Code controls which unincor-
            porated businesc,es and professions          operating under
            an assumed name must file           an assumed name certi-
            ficate.     SeCtim     36.10(a)     requires    JJCh  unincor-
            porated entity l,perating under an assumed name to
            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. 1156
Honorable   Margaret Moore - Page 6       (JM-259)




               Subsection  36.10(b)   does   not   require   esch
            partner  of a reSistrant   partnership    to indivi-
            dually execute the assumed name certificate.




                                             3,iLa
                                                 Ver   truly   you
                                                          .


                                                 JIM     MATTOX
                                                 Attorney General of Texas

TOMGREEN
First AssistJnt   Attorney   General

DAVID R. RICEARDS
Executive AJSiStJnt Attorney,    General

RICK CILPIN
Chairman, Opinion Cossaittee

Prepared by Jennifer Riggs
Assistant Attorney General

APPROVED:
OPINION CONMITTEE

Rick Gilpin.   Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton




                                       p. 1157
