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