                     TEE      AT~ORNEVGENERAL
                                     OFTE~AS


    WVILL    WILSON
*-l-rORNEY      GENERAL
                                      May   12,   1961



    Honorable John C. White                   Opinion No.      WW-1057
    Commissioner.
    Texas Department  of Agriculture          Re:    May a Cooperative      Marketing
    Austin,  Texas                                   Corporation    organized under
                                                     Art. 5937, et. seq.,    Vernon’s
                                                     Civil Statutes,   use an assumed
                                                     name by virtue of Art. 2.05B
                                                    of the Texas Business      Corpora-
    Dear Sir:                                       tion Act?

              You have asked our opinion as to whether a Cooperative  Marketing
    Corporation,    organized under Article 5737 et. seq., Vernon’s  Civil
    Statutes,   may conduct its business under an assumed name.

             The answer to this question depends         upon the correct   interpretation
    of the ,several statutes discussed  below.

             Chapter Eight of Title 93 governing marketing associations        provides
    that the provisions   of the general corporate laws of this State shall apply
    to such associations    when not fin conflict with such Chapter (Art. 5763).
    In addition, however.     the associations   are specifically designated as non-
    profit corporations    (Art. 5738[d]).     At the time these provisions   were
    enacted,   1921, the general corporate laws were encompassed          for the most
    part in Title 32 of the Revised Civil Statutes and covered private corpora-
    tions of three kinds:    religious,   for charity and benevolence,   and for profit.

             Chapter One of Title 97 ~(Art. 5924, et. seq. ), likawise~ passed in
    1921 and governing the use of assumed names,         specifically provides that
    its provisions, “shall not apply to any domestic or foreign corporation      law-
    fully doing~business   in this state. I’ As a general rule, then, corporate
    entities prior to 1955 could not avail themselves      of the use of an assumed
    name.

             In 1955 the Texas Business   Corporation  Act was enacted.    Article
    2.85B thereof provides that “any domestic or foreign corporation       having
    authority to transact business in this state, may do so by filing an assumed
    name certificate   in the manner prescribed   by law. ‘I However,   the provi-
    sions of the Business    Corporation Act are not available to the type of
Hon.   John C.   White,   page 2   (WW-1057)




company under consideration        not only because cooperative       associations
are specifically   excluded therefrom      [Art.   2. 01B (4)(g); 9. 14A], but
because such associations      are non-profit    corporations.     As used in the
Act, “corporation”     means a “corporation       for profit subject to, the provi-
sions of this Act.”    See Opinion No. WW-404,          holding that non-profit
cemetery    corporations   could not have a perpetual existence        as provided
by ,the Business   Corporation    Act.   Insofar as the applicability     of that Act
is concerned,    cooperative   associations    stand in the same position as
cemetery associations.

         In 1959, the Non-Profit  Corporation   Act was enacted into law.
Logically,   such act should cover corporations    such as we are here con-
cerned with.    Oddly enough, however,    cooperative  marke~ting associa-
tions are specifically  excluded from this Act also.    [Art. 2. OlB (3)].

         This being the situation,   the general corporate law governing
cooperative   marketing associations     referred to in Article 5763 must con-
tinue to be those corporate laws governing corporations         generally  prior
to the passage of the Business     Corporation    Act and the Non-Profit    Busi-
ness Corporation    Act.  Opinion WW-404.        This would include the assumed
name statutes which, as pointed out above, do not include corporations.
Therefore,   we have concluded that a cooperative       marketing, association
may not operate under an,assumed        name.

                                   SUMMARY

                A cooperative marketing         association        may not
        use an assumed name.

                                           Very      truly yours,

                                           WILL WILSON
                                           Attorney General          of Texas


                                           BY
                                                R.   V.   Loftin

APPROVED:

OPINION COMMITTEE
W. V. Geppert. Chairman
C. Dean Davis
Harris Toler

REVIEWEDFORTHEATTORNEYGENERAL
BY:         Morgan Nesbitt
