                 THEATTORNEY               GENERAL
                               OFTEXAS

GERALD C. MhNN             AUSTIN    11.TEXAS

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     Honor&bileWill Mann Richardson
     As~lstant~S~cretarg of State
     hustln, Texas

     Dear Sfr:                    Opinion No. O-4353
                                  Re: Corporations i Sections 2 and 9
                                      of Article 1302, ,R.C.S.

             Your request for opinion has.been received and‘carefullg
      considered by this department. We quote from your request as
      follows:
             'We are enclosing herewith an application.
          foila bhtititep
                        for the Zion Lutheran Social Ass.o-
          ciatlon marked 'Exhibit B'.
            -'"Youwill note that In the preamble of the
          charter IF is statd.that~a corp6ratlon wishes
          to-come under the provisions of chapter goof
          Trtle 32 bf the-Revisea civil Statutes, 1925:
          The purpose of the corpdration is'st&tsd.to be
          &.benevblent one 'The maintenance, operation,
          acqultiitlonan&control of recreational facill-
          ties for the exclu'srvebenefit of and In the
          Interests'of its members aiia for which no profit
          shall accrue to the corporation'. We have ad-
          vised the'lncorporators that the corporation
          coul&be 'formedunder Subdivision 9 oftArtl-
          cle 1302'as a sports club paying the $50.00 fll-
          ing fee and the annual franchise
                                        .    tax.
            "AttorMys for the incorporators, however,
          Insist that on~the basis of the case-.ofEvans
          et ux v; Southside Place Park.Assoclatlon, 154
          S.W. 2d, 194, that the corporation is of such
          a benevolent character that it should be exempt
          from,franchise tax and should pay only the
          $10.00 filing fee. We call your attentFon to
          the fact that the purpose clause contains the
          provision 'for the exclusive benefit of and
          in the interest of its members'.
             "We w0ula appreciate an opinion from your
          Department as to whether such a corporation
Honorable Will Mann Richardson, page 2         o-4353


    should pay the $50.00 filing fee and annual
    tax, or whether.there is such a benevolent
    corporation as should be exempt from tax and
    pay only the $10.00 filing fee."
       The case of Evans, et ux v. Southside Place Park Asso-
ciation, 154 S.W. (2a) 914, referred ~to in your letter, Is
not i?ipoint and does,not touch the question involvedin your
request.
       It is cur opinion that the proposed corporation can-
not be chs~rteredunder Subdivision 2 of Article 1302, Revised
Civil Statutes, as a "benevolent" corporation., See authorities
cited in opinion No. O-3991 of this department, a copy of which
Is enclosed herewith for your information.
       It is our further opinion that the proposed corporatiM.
%danfiot
       be incorporated under Section 9 of Article 1x02, R.C.S.,
&s an "innocent sports" corporation. See authorities cited in
6pinlon'No. o-2866 of this department, a copy of which is en-
closed herewith for your information. See also the case of
Smith v:Wortham,'157 S.W. 740, (Sup; Ct; oftTexas). Also see
opinion of this dkptirtmentdatea March 7, 1933~,wpitten by
Honbrable Pat Dougherty, A5slstant Attoiney~General of Taxas-;.
Vol. 344; pages 184-5, Letter Opinions of the Attorney General
bf Texas, which holds that the purDose c1ause.M the chdter. of
K'izkportitlontinderSection 9 of Article 1302, R.C.S.; should
tipecificallyname the "Innocent sport or Innocent sports" to'
be sponsored and that the Secretary of State should disapprove
the charter of a'proposed corporation applying under said sed-
tlon to %uppo*t, sponsor and encourage Innocent sports among
Its memberss*ch as wrestling, boxing and various other and
similar sports for the amusement of Its members".
       Since the proposed corporation cannot be legally charter-
ed iinder either Section 2 br Section 9 of Article 1302, R.C.S.,
sour question with reference to fees and franchise taxes there-
fore becomes moot.
                                   Yours very truly
                               ATTORNEY GENERAL OF TEXAS
WJF:GO:wc                          By s/Wm. J. Fanning
                                        Wm. J:.Fanning
hP&XlED FEE 10, 1942                    Assistant
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By BWB Chairman
