85R7720 TSR-F
 
  By: Villalba H.B. No. 2856
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to names of domestic and foreign filing entities for
  transacting business in this state; creating an offense.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 1.002, Business Organizations Code, is
  amended by adding Subdivision (21-a) to read as follows:
               (21-a)  "Fictitious name" means an assumed name:
                     (A)  that a foreign filing entity adopts for use
  because the name of the entity as stated in the entity's certificate
  of formation or similar organizational instrument is not available
  for use under the laws of this state; and
                     (B)  under which the foreign filing entity is
  registered to transact business in this state, in accordance with
  Chapter 9.
         SECTION 2.  Subchapter A, Chapter 5, Business Organizations
  Code, is amended by adding Sections 5.002, 5.003, and 5.004 to read
  as follows:
         Sec. 5.002.  EVIDENCE OF ESTABLISHED RIGHT TO
  INDISTINGUISHABLE NAME. Notwithstanding Sections 5.053, 5.102,
  and 5.153, the secretary of state may register or reserve a name
  requested on an application for registration filed by a foreign
  filing entity, or an application for reservation or registration of
  a name filed by a person, that is not a distinguishable name from
  another name that is registered or reserved in the records of the
  secretary of state under this chapter if the foreign filing entity
  or person delivers to the secretary of state a certified copy of the
  final judgment of a court of competent jurisdiction that
  establishes the entity's or person's right to the name in this
  state.
         Sec. 5.003.  LIABILITY FOR CERTAIN FALSE WRITTEN STATEMENTS.
  (a) This section applies only to a written statement of consent to
  use of a name that is provided to the secretary of state under
  Section 5.053(b), 5.102(b), or 5.153(b).
         (b)  A person may recover damages, court costs, and
  reasonable attorney's fees if the person incurs a loss and:
               (1)  the loss is caused by a:
                     (A)  forged written statement; or
                     (B)  delivered written statement that constitutes
  an offense under Section 5.004; or
               (2)  the person reasonably relies on:
                     (A)  a false statement of material fact in a
  written statement; or
                     (B)  the omission in a written statement of a
  material fact required by this code to be included in the statement.
         (c)  A person may recover under Subsection (b) from:
               (1)  each person who forged the forged written
  statement or signed the written statement and knew when the
  statement was signed of the false statement or omission;
               (2)  any managerial official of the entity who directed
  the signing and delivery of the written statement who knew or should
  have known when the statement was signed or filed of the false
  statement or omission; or
               (3)  the entity that authorizes the delivery of the
  written statement.
         Sec. 5.004.  DELIVERY OF FALSE STATEMENT; OFFENSE. (a) A
  person commits an offense if the person signs or directs the
  delivery of a written statement of consent described by Section
  5.053(b), 5.102(b), or 5.153(b) that the person knows is materially
  false with intent that the written statement of consent be
  delivered on behalf of an entity to the secretary of state.
         (b)  An offense under this section is a Class A misdemeanor
  unless the actor's intent is to defraud or harm another, in which
  event the offense is a state jail felony.
         SECTION 3.  Section 5.053, Business Organizations Code, is
  amended to read as follows:
         Sec. 5.053.  DISTINGUISHABLE [IDENTICAL AND DECEPTIVELY
  SIMILAR] NAMES REQUIRED [PROHIBITED]. (a) The name of a [A] filing
  entity or the name under which [may not have a name, and] a foreign
  filing entity registers [may not register] to transact business in
  this state must be distinguishable in the records of the secretary
  of state from [under a name, that is the same as, or that the
  secretary of state determines to be deceptively similar or similar
  to]:
               (1)  the name of another existing filing entity;
               (2)  the name of a foreign filing entity that is
  registered under Chapter 9;
               (3)  the fictitious name under which a foreign filing
  entity is registered to transact business in this state;
               (4)  a name that is reserved under Subchapter C; or
               (5) [(4)]  a name that is registered under Subchapter
  D.
         (b)  Subsection (a) does not apply if the other entity or the
  person for whom the name is reserved or registered, as appropriate,
  provides to the secretary of state a notarized written statement of
  the entity's or person's consent to the use of the [similar] name.
         (c)  If the secretary of state determines that an entity or
  person described by Subsection (b) is consenting to the use of a
  name that is the same as the name or fictitious name of the entity or
  is the same as the name reserved or registered for the entity or
  person, the entity's or person's consent is not valid.
         SECTION 4.  Section 5.102, Business Organizations Code, is
  amended to read as follows:
         Sec. 5.102.  LIMITATION ON THE RESERVATION OF CERTAIN NAMES
  [PROHIBITED; EXCEPTIONS]. (a)  The secretary of state may [not]
  reserve a name under this subchapter only if the name [that] is
  distinguishable in the records of the secretary of state from [the
  same as, or that the secretary of state considers deceptively
  similar or similar to]:
               (1)  the name of an existing filing entity;
               (2)  the name of a foreign filing entity that is
  registered under Chapter 9;
               (3)  the fictitious name under which a foreign filing
  entity is registered to transact business in this state;
               (4)  a name that is reserved under this subchapter; or
               (5) [(4)]  a name that is registered under Subchapter
  D.
         (b)  Subsection (a) does not apply if the other entity or the
  person for whom the name is reserved or registered, as appropriate,
  provides to the secretary of state a notarized written statement of
  the entity's or person's consent to the subsequent reservation of
  the [similar] name.
         (c)  If the secretary of state determines that an entity or
  person described by Subsection (b) is consenting to the subsequent
  reservation of a name that is the same as the name or fictitious
  name of the entity or is the same as the name reserved or registered
  for the entity or person, the entity's or person's consent is not
  valid.
         SECTION 5.  Section 5.153, Business Organizations Code, is
  amended to read as follows:
         Sec. 5.153.  LIMITATION ON THE REGISTRATION OF CERTAIN NAMES
  [REGISTRATIONS PROHIBITED; EXCEPTIONS]. (a) The secretary of
  state may [not] register a name under this subchapter only if the
  name [that] is distinguishable in the records of the secretary of
  state from [the same as, or that the secretary of state determines
  to be deceptively similar or similar to]:
               (1)  the name of an existing filing entity;
               (2)  the name of a foreign filing entity that is
  registered under Chapter 9;
               (3)  the fictitious name under which a foreign filing
  entity is registered to transact business in this state;
               (4)  a name that is reserved under Subchapter C; or
               (5) [(4)]  a name that is registered under this
  subchapter.
         (b)  Subsection (a) does not apply if:
               (1)  the other entity or the person for whom the name is
  reserved or registered, as appropriate, provides to the secretary
  of state a notarized written statement of the entity's or person's
  consent to the registration of the [similar] name; or
               (2)  the applicant is a bank, trust company, savings
  association, or insurance company that has been in continuous
  existence from a date that precedes the date the indistinguishable
  [conflicting] name is filed with the secretary of state.
         (c)  If the secretary of state determines that an entity or
  person described by Subsection (b)(1) is consenting to the
  registration of a name that is the same as the name or fictitious
  name of the entity or is the same as the name reserved or registered
  for the entity or person, the entity's or person's consent is not
  valid.
         SECTION 6.  Section 9.105, Business Organizations Code, is
  amended to read as follows:
         Sec. 9.105.  USE OF DISTINGUISHABLE NAME REQUIRED [SIMILAR
  TO PREVIOUSLY REGISTERED NAME]. If the secretary of state
  determines that the [a foreign filing entity's] name of a foreign
  filing entity or the fictitious name under which it is registered to
  transact business in this state does not comply with Chapter 5 [is
  the same as, deceptively similar to, or similar to a name of a
  filing entity or foreign filing entity as provided by or reserved or
  registered under this code], the secretary of state may not accept
  for filing the certificate of reinstatement unless the foreign
  filing entity contemporaneously amends its registration to change
  its name to a name that complies with Chapter 5, or provides a
  fictitious name under which the foreign filing entity will transact
  business in this state that complies with Chapter 5 [obtains
  consent for the use of the similar name].
         SECTION 7.  Section 11.203, Business Organizations Code, is
  amended to read as follows:
         Sec. 11.203.  USE OF DISTINGUISHABLE NAME REQUIRED [SIMILAR
  TO PREVIOUSLY REGISTERED NAME]. If the secretary of state
  determines that a filing entity's name contained in a certificate
  of reinstatement filed under Section 11.202 does not comply with
  Chapter 5 [is the same as, deceptively similar to, or similar to a
  name of a filing entity or foreign entity on file as provided by or
  reserved or registered under this code], the secretary of state may
  not accept for filing the certificate of reinstatement unless the
  filing entity contemporaneously amends its certificate of
  formation to change its name to a name that complies with Chapter 5
  [or obtains consent for the use of the similar name].
         SECTION 8.  Section 5.002, Business Organizations Code, as
  added by this Act, applies only to an application filed on or after
  the effective date of this Act. An application filed before the
  effective date of this Act is governed by the law in effect on the
  date the application was filed, and the former law is continued in
  effect for that purpose.
         SECTION 9.  Sections 5.102 and 5.153, Business Organizations
  Code, as amended by this Act, apply only to an application for
  registration or reservation of a name filed on or after the
  effective date of this Act. An application for registration or
  reservation of a name filed before the effective date of this Act is
  governed by the law in effect on the date the application was filed,
  and the former law is continued in effect for that purpose.
         SECTION 10.  Sections 9.105 and 11.203, Business
  Organizations Code, as amended by this Act, apply only to a
  certificate of reinstatement filed on or after the effective date
  of this Act. A certificate of reinstatement filed before the
  effective date of this Act is governed by the law in effect on the
  date the certificate of reinstatement was filed, and the former law
  is continued in effect for that purpose.
         SECTION 11.  This Act takes effect June 1, 2018.