Hon. N. 0. Flowers                     Opinion   No.   O-1732
Secretary of State                     Re: Procedureand amount of filing
Austin,Texas                           fee a corporationshouldpay in ex-
                                       tendingits charterand decreasing
Attentionof Will Mann Richardson       its capitalstock.

Dear Sir:

         Your recentrequestfor an opinionof this departmenton the above
statedpropositionhas been received.

            We quote from your letter as follows:

         Vhe BeaumontImprovementCompanywas granteda charter
    in 1890, for a period of fifty years. The capitalstock was
    $100,000.00. The corporationtishes to extend its charter
    under the provisionsof Article 1315a ard also to decrease
    the capitalstock to $5O,OOC.O0.

         "The corporationtakes the positionthat because the de-
    crease in capitalstock is concurrentwith the extensionof
    the charter,that the filing fee shouldbe $90.00,which is
    the correctfiling fee for the extensionof.a charterof a
    $.50,000.00corporation.

         "ThisDepartmenttakes the positionthat the decreasein
    capitalstockmust be a separateamendment,in accordance
    with Article1332, and that the filirg fee for such an smend-
    ment would be the minimum of $50.00,airdthat the filingfee
    for the extension,accordingto Article 1315a, would be $90.00,
    making a total of $lhO.OOfor the two, it being the opinion
    of this Departmentthat bo separateinstrumentsare contem-
    plated and two filing fees must be paid.

         Vhe corporation,on the other hand, states that it feels
    that the matter shouldbe consideredas an applicationfor a
    new charterfor a ~~O,OOO.OOcorporationand that no fee should
    be chargedfor the amendmentdecreasingthe capitalstock.

         "It has been the customof this Departmentto allow the
     amendmentof a charterin two particulars,such as a change of
     nsme~anda change of address,and only one filing fee would be
     chargedfor the amendment,but we believe that Article1315a
Hon. M. 0. Flowers,page 2   (O-1732)


    providesfor an entirelydifferentinstment than an amend-
    ment, and that the extensionof a chartershouldpay a separ-
    ate filing fee and the decreasein capitalstock shouldalso
    pay a filingfee.

          "We would appreciatean opinionfrom your Departmentas
     to whetherthese two portionsof the chartercan be amended
     in one instrumentand pay ens filing fee, or whethertwo
     instrumentsand two filing fees are contemplated."

         Articles1315(a)and 1315(b)read as follows:

         "Art. 1315(a).  Subjectto a findingby the Secretaryof
    State as hereinafterprovided,any privatecorporationorgan-
    ized or incorporatedfor any purpose or purposesauthorized
    under this Title,at any ~time~uithin ten (10) years prior to
    the expirationof its charter,or any extentionthereof,may
    extendsuch charterand the corporateexistenceof such cor-
    porationfor an additionalperiod of not to exceedfifty (50)
    years frcm the expirationdate of the originalcharter,or
    any extensionthereof,with all the privileges,powers,immuni-
    ties, right of successionby its corporatensme, and rightsof
    property,real and personal,exercisedand held by it at such
    expirationdate, to the same intentsand purposesas upon origi-
    nal incorporation.The manner of extendingany such charter
    shall be by a resolutionin writing,adoptedat any annual or
    specialmeeting of stockholderscalledfor that purposeby
    stockholdersholdinga majorityof the shares of capitalstock
    of such corporationthen outstanding,such resolutionto speci-
    fy the period of time for which the charteris extended,and a
    copy of such resolution,duly certifiedby the secretaryof the
    corporation,under the corporateseal, shall be filed dnd re-
    corded in the officeof the Secretaryof State. Upon the adop-
    tion of such resolutionand the filing of a certifiedcopy
    thereofwith the Secretaryof State, 'together  with payment of
    the fiiing fee hereinprescribed,the charterand corporate
    existenceof such corporationmay be extendedfor the additional
    period of time recitedin such resolution. The filing fee to
    be paid for any such extensionof a chartershall be such fee
    as said corporationwould be requiredunder the Statutesof
    Texas to pay in the event it was then applyingfor a new char-
    ter insteadof extendingits then exi.stFng  charter.

          "Such extensions,however,may be made only in instances
     where-theSecretaryof State shall have found, after proper
     investigation,that such corporationis solventand its capital
     unimpaired.

          "Art. 1315(b). The provisionsof Article 1315'(a) shall
     extendto and include.allprivate corporationsincorporatedun-
     der the generallaws of Texas. The period of ten (10) years
                            of the charteror anv extension thereof
     --ior to the n---<cation
hon. M. 0. Flowers,page 3      (O-1732)




       referredto in Article 1315'(a) shall includethe period of time
       duringwhich such corporationmay have contimed its existence
       under the provisionsof Article 1389 of the DevisedCivil Stat-
       utes of 192.5."

           Article1332, Vernon'sAnnotatedCivil Statutesprovidesthat:

             "A corporationmay decreaseits capitalstock by such
       amount as its stockholders may decide,by a two-thirdsvote of
       all its outstandingstock,in like manner as is requiredfor an
       increase. No such decreaseshall prejudicethe rights of any
       creditormay have againstthe canpargr, or any stockholderthereof.
       Such decreaseshall not become effectiveuntil full proof is
       made by affidavitof the directorsto the Secretaryof State of
       the financialconditionof such corporation,  giving thereinall
       its assetsand liabilities,with names and post officeaddresses
       of all creditorsand amountdue each; and the Secretaryof State
       may require,as a conditionprecedentto the filing of such cer-
       tificate of decrease,that the debts of such corporationbe
       paid or reduced."

               Article 391&, Vernon'sAnnotatedCivil Statutes,reads in part as
follows*

            *Upon filing each charter,amendment,or supplementthereto
       of a corporationfor the supportof publicworship,any benevo-
       lent, charitable,educational,missionary,literaryor scientific
       undertaking,the maintenanceof a library,the praaotionof a
       public cemeterynot for profit and the enoouragenentof agricul-
       ture and horticulture,to aid its membersin producingand market-
       ing agriculturalproducts,or acquiring,raising,breeding,fat-
       tening or marketinglive stock,a filingfee of Ten ($10.00)Dol-
       lars, and for filing the semi-annualfinancialstatmnentof such
       agricultural productsor live stock corporation,Ten ($10.00)
       Dollars,which shall includethe annuallicensefee.

            "Upon filing each charter,amendmentor subplaaentthereto,
       of a privatecorporationcreatedfor any other purposeintended
       for mutual profit or benefit,a filingfee of Fifty ($50.00)
       Dollars,providedthat if the authorizedcapitalstock of said
       corporationshall exceedTen Thousand(~lO,OOO.OO) Dollars it
       shallbe requiredto pay an additionalfee of Ten ($10.00)Dollars
       for each additionalTen Thousand($lO,OCO.OO) Dollars of its au-
       thorizedcapitalstock or fractionalpart thereofafter the first.
       . . .n
         Except in the case of religiousand charitablecorporations,  andcer-
tain   other
           special classes of corporations as mentionedin Article391& supra,
the filing fee for the charterof a tradingcorporationis Fifty ($50.00)
Hen. H. 0. Flowers,page L   (O-1732)




Dollarswith Ten ($10.00)Dollars additionalfor each Ten Thousand($lO,OOO.-
00) Dollars of capitalstock in excess'of Ten Thousand($lO,OOO.OO)and with
a maximum of Two Thousand,Five Hundred ($2,500.00)Dollars. For amendments
to chartersthe minimumfees enumeratedas on the filing of the original
charterare payableexceptwhere amendmentwhich increasesthe capitalstock,
as to which a fee, in additionto the mindmumfee, is payableaccordingto
the amount of the imrease. St. Louis SouthwesternRailwayCompanyvs. Todd,
6l~ SW 778; Tex.duris., Vol. 10, page 628.

            Article1315(a),supra, specificallyprovidesthat:

          "The filing fee to be paid forany such extensionof a char-
     ter shall be such fee as said corporationwould be requiredunder
     the Statutesof Texas to pay in the event it was then app4ing for
     a new charterinsteadof extendingits then existingcharter.*

            The statutealso furtherprovides:

          "Such extensions,however,may be made ox& in instanceswhere
     the Secretaryof State shall have found, after proper investigation,
     that such corporationis solventand its capitalstock unimpaired.a

           The canpanyin questionhas filed two instruments,one for the
smendmentof its charter,the other for the extensionof the charteras
smended. The filing fee to be paid for any such extensionof a charter,uu-
der Article 1315(a), supra, shall bs such fee as said corporation  would be
requiredto pay in the event it was then app4ing for a new charterinstead
of extendingits then existingcharter. Clearly,a caapanyhaving a capital
stock of Fifty Thousand(~~O,OOO.OO)  Dollars under Article 39li4, supra,
would bs requiredto pay the sum of Ninety ($90.00)Dollars. Also, under
Article 39ti, supra, the companywould be requiredto pay the sum of Fifty
($50.00)Dollarsfor filing any amendmentor supplment thereto.

          Therefore,you are respectfullyadvisedthat it is the opinionof
this department,in accordancewith Article 1332, supra,the filing fee for
the amendmentwould be the minimum of Fifty ($50.00)Dollars,and that the
f%Sing fee.forthe extension,accordingto Article 1315(a),supra,would be
Ninety ($90.00) Dollars, making a total of Cne Hundredand Forty ($lkO.OO)
Dollarsto be paid by the companyamendingand extendingits charter.

            Trustingthat the foregoingfully answersyourinquiry,we are

APPRDVED   JUN   19, 19LO                 Very   truly   yours
/s/ CersldC. Mann                         ATTCRNEYGDNERALOFTXAS
ATTODNFXGDNE%LOFTEXAS                     By /s/ ArdellWilliams
APPROVEi&OPIljIONCOMJIITTEE               Ardell Williams,Assistant
BP:      EWE, CHAIHMAN
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