THEATTORNEY GENERAL
OFTEXAB *
AUOWIN.TNSAE lS7ll
April 23, 1975
The .Honorable Robert E. Stewart Opinion No. *‘St39
Commirrionar
Depertment of Banking Re: Maximum rate of interest
John H. Reagan State Office Bldg. which may be charged on a
Aurtin, T-r ‘70701 loan to l pertnerrhip compored
rolely of two corporations.
, Dear Com@rrioner Stewart:
You have requeoted our opinion regarding the meximum rate of
intereet whichmay be cherged on e loen to a prtnerehip compored of
two corporatiomrt Article 16, rection 11 of the Texer Conrtitution
provide8 t&t:
. . . in the ebsence of lcgirletion fixing maximum
r8tes of interert all contractr for l greeter rete of
interert than ten per centum (10%) per 8nnum &all
be deemed ururioua . . .
Under article 5069-l. 02, the maximum rete of interert on lny lan il
limited to ten percent per annum unle## euch rete ia otherriae fixed by
18W. Article 1302-2.09, however, provida an exception to the rule
where the debtor ie l corporetion:
. . . corporation8 . . . mey agree to end rtipulete
for eny rete of interert ea ouch corporetion may
determine, not tbcrxceed one and one-helf percent
(1 l/2%) per month, on lny . . . debt . . . or other
obligetion of much corporation , . . , end in much
inrtencem, the cleim or defenre of uwry by ruch
corporation, itm luc c ea a o‘guerentorr,
r s, aarignm
or anyone on itm beNlf io prohibited . . .
p. 2629
. .
The Honorable Robert E. Shwrrt page 2 (H-589)
You 8rk whether a partnership composed solely of two corporrtiibnr
m8y be deemed a “corporation” for purpoeer of article 1302-2.09,
a0 ae to qu8lify for l loan at l rats of interaat in exceee of ten percent
per rnnuni.
By i 1973 amendment to the Texae Buainere Corporatidn Act,
every corporation WIT granted the authority:
[t]o be en orgrnieer, partner, member, arrociate:
o.r mana@er of any partnerrhip. . . . Tex. Buti.
C&p; Act, art. 2.02A(lg).
It ie therefore clear that two corporetionr may form a partnerrhip purnuant
to Texam law.
Although the Texae Uniform Partnerrhip Act provides that “[a]11
partnera Are liable jointly and severally for all debtr and obligations
of the partnership, ” article 6132(b), rection 15, V. T. C. S. , it ir aleo
true tbat the partnerehip itrelf ir liable for itr own debts. Rule 28,
Texar Ruler of.Civil Procedure, grrntr to lny partnerrhip the authority
to:
. . . sue or be sued in ita own partnership . . .
name for the purpose ,of enforcing for or againrt
it a rubrtantive right.
Furtherm,ofe, erticle 2223, V. T. C. S., provider that, in canon where a
suit ir brought:
. . ”
. against reveral partnero jointly indebted
upon contract . . . judgment may be rendered
therein lgainrt euch partnerrhip and lgainrt
the pertnere actually served. . . .
According to one court, the effect of Rule 28:
* . . ie to treet the partnermhip ee a legal entity,
at leert to the extent that 8 judgment may be obtained
by it or a judgment may be enforced againrt it.
. Johaaon v. Pioneer Mortgage Co., 264 S. W. td 761
(Tex. Civ. App. --El Paro 1954, writ dirm’d.)
p. 2630
The Honor8ble Robert E. Stewart page 3 (H- 589)
We h8ve diecovered no caee in any American jurisdiction which
would lead to the conclusion that a partnerrhip composed of two
corporationa ir 8nything other than a partnership. It is therefore our
opinion tb8t 8 p8rtnerahip formed and existing in accord8nce with the
terms of the Texao Uniform Partnerrhip Act and composed solely of
two corporationr,may not be deemed 8 “corporation” for purpoacn of
rrticle 1302-2.09, rnd that, aa 8 result, ten percent per annum is the
m8ximum rate of intereat which may be charged on a loan to such an
entity. You have not inquired, 8nd we do not rerch the question,
whether 8 corpomte member of a partnership could itrclf interpose the
defense of uaury in 8 suit on a partnerrhip debt on which the rate of
interest ~8s gre8ter th8n ten but leas than eighteen percent per 8nnum.
SUMMARY
Ten percent per annum in the, maximum rate of ‘. ‘: :
interert which may be charged on a loan to a
p8rtnerehip composed of two corporations.
Very truly yours,
A?&
JOHN L. HILL
Attorney General of Texas
APPROVED:
73LsP-wL
DAVID M. KENDALL, Firrt Aaairtant
Opinion Committee
1R
p. 2631