         Tmc     I%~~~~~~~               GENERAJ,
                     OFTEXAS
                     AUSTXN.   %k?CAS    78711

                        April 4, 1977




The Honorable Joe Resweber                Opinion No. H- 970
Harris County Attorney
Harris County Courthouse                  Re: Filing of assumed
Houston, Texas  77002                     name certificates of
                                          limited partnerships.

Dear Mr. Resweber:

     You have asked four questions about the duties of the
county clerk with regard to filing assumed name certificates
of limited partnerships.  The assumed name statute, enacted
in 1921 and now codified at articles 5924 through 5927, V.T.C.S.,
reads in pertinent part:

             No person or persons shall carry on or
          conduct or transact business in this State
          under any assumed name or under any designa-
          tion, name, style, corporate or otherwise,
          other than the real name or names of the
          individual or individuals conducting or
          transacting such business unless such person
          or persons shall file in the office of the
          county clerk of the county or counties in
          which such person or persons conduct, or
          transact or intend to conduct or transact
          such business, a certificate setting forth
          the name under which such business is or is
          to be conducted or transacted, and the true or
          real full name or names of the person or
          persons conducting or transacting the same,
          with the post-office address or the addresses
         -of said person or persons. Said certificate
          shall be executed and duly acknowledged by
          the person or persons so conducting or
          intending to conduct said business in the
          manner now provided for acknowledgment of
          conveyance of real estate.,




                               p. 4038
The Honorable Joe Resweber - page 2   (H-970)



V.T.C.S. art 5924.1. The purpose of article 5924.1 is to
let the public know who is operating a business under an
assumed name3; s~,~x2&~              gt-y;,g          g31
O'Donnell,
no writ). Article 5924.1 applies to partnerships.    Eastei
Poultry Co. v. Benefield, 268 S.W.2d 270 (Tex. Civ. App. --
Beaumont~S~     no writ). You suggest that it does not apply
to limited partnerships because they must reveal the names
of all partners in the certificate of limited partnership
filed with the Secretary of State. V.T.C.S. art. 6132a, 9 3.
However, we believe that limited partnerships operating
under an assumed name must make the filing required by
article 5924.1 The Legislature expressly excepted corpo-
rations from the assumed name statute, indicating that
persons operating as other business entities must comply.
V.T.C.S. art 5927a. In addition, the assumed name statute
requires a filing with the clerk of every county where busi-
ness is transacted, thus providing notice more accessible
 to persons dealing with the firm than does the certificate
 filed with the Secretary of State. Since the assumed name
 law does apply to limited partnerships, we will address your
questions relating to the persons who must sign the certifi-
cate.

     Your first three questions are as follows:

             1) Is the County Clerk required by law
          to file for record an assumed name certificate
          stating the name of a limited partnership as
          the assumed name, which certificate has been
          executed and acknowledged by a general
          partner of such limited partnership?

             2)  Is the County Clerk required to file
          such assumed name certificate when it is
          executed and acknowledged by all the
          general partners?

             3) Is the County Clerk required to file
          such assumed name certificate when it is
          executed and acknowledged by all of the
          partners, both general and limited?




                        p. 4039
The Honorable Joe Restieber    -   page 3   (R-970)



Article 5924.1 applies to all persons who transact business
under any name "other than the real name or names of the
individual or individuals conducting or transacting such
business."   The certificate must be executed and acknowl-
edged by the "person or persons so conducting or intending
to conduct said business."    The business of a limited part-
nership is conducted by general partners, limited partners
takins no part in the manasement.    V.T.C.S. art. 6132a. SS
8, 10; ll;-Delaney v. Fidelity Lease Ltd., 517 S.W.2d 420-
 (Tex. Civ. App. -- E Paso 19741, aff'd in part, rev'd in
;;J:,o; ;gf:ezrounds,    526 S.W.2d 543 (TG. 1975). Thus,
                 partnership operates under a name other than
the names of its-general partners, the general partners must
file the assumed name certificate.

     Although some provisions of the assumed name statute
refer to owners. we believe thev refer onlv to those owners
                                     -          a     ~~   ~~~

who exercise some control over the business. Corn are V.T.C.S.
art. 5924.1 with arts. 5925 and 592713. See --
                                            HoI+-.
                                                t v. Giles,
240 S.W.Zd 991, 993-94 (Tex. 1951) and Rxty    Trust Co. v.
Craddock. 112 S.W.2d 440. 443 (Tex.1938).   These orzszns
do not bring limited partners within the.terms of article
5924.1. The case law consistently treats the statute as
applicable to persons "operating" under assumed names.   See
M$Carley 5. Welch, 170 S,W.2d 330 (Tex. Civ. App. -- Dal=
  43, no writ)d    Cooper Cotton --
                                 Co. v. First State Bank of
O'Donnell, supra. In Attorney General opinionm6m'lijir
we decided that the county clerk could record an assumed
name certificate executed by the nominee of an unincorpor-
ated business trust who would conduct the businss, even
though it was not executed by the trustees who owned the
business. A distinction between owners and owner-operators
of the business applies more forcibly to the limited partner-
ship. As inactive investors who may neither transact part-
nership business nor include their names in the firm name,
limited partners do not have to file assumed name certifi-
cates under article 5924.1.

     A limited partnership operating under the names of all
general partners need not file anything under article
5924.1. If it operates under a name other than the names of
the general partners, all the general partners must file




                              p. 4040
 .




     ,
The Honorable Joe Resweber - page 4       (H-970)



under article 5924.1.. Therefore, we answer your first
question in the negative and your second in the affirmative.
With respect to your third question, we do not believe that
the presence of these additional signatures invalidates a
certificate that contains all information required by article
5924.1. See Attorney General Opinions H-426 (19741 and H-
146 (1973). The clerk must file an assumed name certificate
signed by all partners, general and limited. -See V.T.C.S.
art. 6591.

         Your last question is as follows:

                If the County Clerk is required by law to
              file the above described instrument, should
              the County Clerk's index show the name of
              the general partners as the owners of the
              business or should the index show the names
              arid addresses of all the partners, general
              and limited, as the owners of the business?

     Article 5926 sta'tes that the "county clerk shall keep
an alphabetical index of all persons filing certificates
provided for herein.! Since only the general partners are
required to file "certificates provided for herein" the
clerk's index need only show the names of general partners
as Owners of the business. - See Attorney General Opinion
O-1630 (1939).

                         SUMMARY

              The general partners of a limited partner-
              ship operating under an assumed name
              must execute, acknowledge, and file the
              assumed name certificate required by
              V.T.C.S. art. 5924.1. The county clerk's
              index should show the names of the general
              partners as owners of the business.

                                   Vary truly you_r.s,


                                       Y  &A.)&      .
                                       HN L. HILL
                                    ttorney' Qeneral of Texas




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    .    .’   ,
I




    The Honorable Joe Resweber - page 5   (R-970)




    Opinion Committee

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