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                                                                  H.B. No. 1156




AN ACT
relating to adoption of the Business Organizations Code. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. ADOPTION OF CODE. The Business Organizations Code is adopted to read as follows:
BUSINESS ORGANIZATIONS CODE
TITLE 1. GENERAL PROVISIONS
CHAPTER 1. DEFINITIONS AND OTHER GENERAL PROVISIONS
SUBCHAPTER A. DEFINITIONS AND PURPOSE
Sec. 1.001. PURPOSE Sec. 1.002. DEFINITIONS Sec. 1.003. DISINTERESTED PERSON Sec. 1.004. INDEPENDENT PERSON Sec. 1.005. CONSPICUOUS INFORMATION Sec. 1.006. SYNONYMOUS TERMS Sec. 1.007. SIGNING OF DOCUMENT OR OTHER WRITING Sec. 1.008. SHORT TITLES Sec. 1.009. DOLLARS AS MONETARY UNITS
[Sections 1.010-1.050 reserved for expansion]
SUBCHAPTER B. CODE CONSTRUCTION
Sec. 1.051. CONSTRUCTION OF CODE Sec. 1.052. REFERENCE IN LAW TO STATUTE REVISED BY CODE Sec. 1.053. APPLICABILITY TO FOREIGN AND INTERSTATE AFFAIRS Sec. 1.054. RESERVATION OF POWER
[Sections 1.055-1.100 reserved for expansion]
SUBCHAPTER C. DETERMINATION OF APPLICABLE LAW
Sec. 1.101. DOMESTIC FILING ENTITIES Sec. 1.102. FOREIGN FILING ENTITIES Sec. 1.103. ENTITIES NOT FORMED BY FILING INSTRUMENT Sec. 1.104. LAW APPLICABLE TO LIABILITY Sec. 1.105. INTERNAL AFFAIRS Sec. 1.106. ORDER OF PRECEDENCE
CHAPTER 2. PURPOSES AND POWERS OF DOMESTIC ENTITY
SUBCHAPTER A. PURPOSES OF DOMESTIC ENTITY
Sec. 2.001. GENERAL SCOPE OF PERMISSIBLE PURPOSES Sec. 2.002. PURPOSES OF NONPROFIT ENTITY Sec. 2.003. GENERAL PROHIBITED PURPOSES Sec. 2.004. LIMITATION ON PURPOSES OF PROFESSIONAL ENTITY Sec. 2.005. LIMITATION IN GOVERNING DOCUMENTS Sec. 2.006. PERMISSIBLE PURPOSE OF FOR-PROFIT CORPORATION RELATED TO RAILROADS Sec. 2.007. ADDITIONAL PROHIBITED ACTIVITIES OF FOR-PROFIT CORPORATION Sec. 2.008. NONPROFIT CORPORATIONS Sec. 2.009. PERMISSIBLE PURPOSE OF NONPROFIT CORPORATION RELATED TO ORGANIZED LABOR Sec. 2.010. PROHIBITED ACTIVITIES OF NONPROFIT CORPORATION Sec. 2.011. PURPOSES OF COOPERATIVE ASSOCIATION Sec. 2.012. LIMITATION ON PURPOSES OF REAL ESTATE INVESTMENT TRUST
[Sections 2.013-2.100 reserved for expansion]
SUBCHAPTER B. POWERS OF DOMESTIC ENTITY
Sec. 2.101. GENERAL POWERS Sec. 2.102. ADDITIONAL POWERS OF NONPROFIT ENTITY OR INSTITUTION Sec. 2.103. POWER TO INCUR INDEBTEDNESS Sec. 2.104. POWER TO MAKE GUARANTIES Sec. 2.105. ADDITIONAL POWERS OF CERTAIN PIPELINE BUSINESSES Sec. 2.106. POWER OF NONPROFIT CORPORATION TO SERVE AS TRUSTEE Sec. 2.107. STANDARD TAX PROVISIONS FOR CERTAIN CHARITABLE NONPROFIT CORPORATIONS; POWER TO EXCLUDE Sec. 2.108. POWERS OF PROFESSIONAL ASSOCIATION Sec. 2.109. POWERS OF PROFESSIONAL CORPORATION Sec. 2.110. POWERS OF COOPERATIVE ASSOCIATION Sec. 2.111. LIMITATION ON POWERS OF COOPERATIVE ASSOCIATION Sec. 2.112. STATED POWERS IN SUBCHAPTER SUFFICIENT Sec. 2.113. LIMITATION ON POWERS Sec. 2.114. CERTIFICATED INDEBTEDNESS; MANNER OF ISSUANCE; SIGNATURE AND SEAL
CHAPTER 3. FORMATION AND GOVERNANCE
SUBCHAPTER A. FORMATION, EXISTENCE, AND
CERTIFICATE OF FORMATION
Sec. 3.001. FORMATION AND EXISTENCE OF FILING ENTITIES Sec. 3.002. FORMATION AND EXISTENCE OF NONFILING ENTITIES Sec. 3.003. DURATION Sec. 3.004. ORGANIZERS Sec. 3.005. CERTIFICATE OF FORMATION Sec. 3.006. FILINGS IN CASE OF MERGER OR CONVERSION Sec. 3.007. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF FOR-PROFIT CORPORATION Sec. 3.008. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF CLOSE CORPORATION Sec. 3.009. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF NONPROFIT CORPORATION Sec. 3.010. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF LIMITED LIABILITY COMPANY Sec. 3.011. SUPPLEMENTAL PROVISIONS REGARDING CERTIFICATE OF FORMATION OF LIMITED PARTNERSHIP Sec. 3.012. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF REAL ESTATE INVESTMENT TRUST Sec. 3.013. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF COOPERATIVE ASSOCIATION Sec. 3.014. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF PROFESSIONAL ENTITY Sec. 3.015. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF PROFESSIONAL ASSOCIATION
[Sections 3.016-3.050 reserved for expansion]
SUBCHAPTER B. AMENDMENTS AND RESTATEMENTS OF
CERTIFICATE OF FORMATION
Sec. 3.051. RIGHT TO AMEND CERTIFICATE OF FORMATION Sec. 3.052. PROCEDURES TO AMEND CERTIFICATE OF FORMATION Sec. 3.053. CERTIFICATE OF AMENDMENT Sec. 3.054. SUPPLEMENTAL PROVISIONS FOR CERTIFICATE OF AMENDMENT OF FOR-PROFIT CORPORATION Sec. 3.055. SUPPLEMENTAL PROVISIONS FOR CERTIFICATE OF AMENDMENT OF REAL ESTATE INVESTMENT TRUST Sec. 3.056. EFFECT OF FILING OF CERTIFICATE OF AMENDMENT Sec. 3.057. RIGHT TO RESTATE CERTIFICATE OF FORMATION Sec. 3.058. PROCEDURES TO RESTATE CERTIFICATE OF FORMATION Sec. 3.059. RESTATED CERTIFICATE OF FORMATION Sec. 3.060. SUPPLEMENTAL PROVISIONS FOR RESTATED CERTIFICATE OF FORMATION FOR FOR-PROFIT CORPORATION Sec. 3.061. SUPPLEMENTAL PROVISIONS FOR RESTATED CERTIFICATE OF FORMATION FOR NONPROFIT CORPORATION Sec. 3.062. SUPPLEMENTAL PROVISIONS FOR RESTATED CERTIFICATE OF FORMATION FOR REAL ESTATE INVESTMENT TRUST Sec. 3.063. EFFECT OF FILING OF RESTATED CERTIFICATE OF FORMATION
[Sections 3.064-3.100 reserved for expansion]
SUBCHAPTER C. GOVERNING PERSONS AND OFFICERS
Sec. 3.101. GOVERNING AUTHORITY Sec. 3.102. RIGHTS OF GOVERNING PERSONS IN CERTAIN CASES Sec. 3.103. OFFICERS Sec. 3.104. REMOVAL OF OFFICERS Sec. 3.105. RIGHTS OF OFFICERS IN CERTAIN CASES
[Sections 3.106-3.150 reserved for expansion]
SUBCHAPTER D. RECORDKEEPING OF FILING ENTITIES
Sec. 3.151. BOOKS AND RECORDS FOR ALL FILING ENTITIES Sec. 3.152. GOVERNING PERSON'S RIGHT OF INSPECTION Sec. 3.153. RIGHT OF EXAMINATION BY OWNER OR MEMBER
[Sections 3.154-3.200 reserved for expansion]
SUBCHAPTER E. CERTIFICATES REPRESENTING OWNERSHIP INTEREST
Sec. 3.201. CERTIFICATED OR UNCERTIFICATED OWNERSHIP INTEREST; APPLICABILITY Sec. 3.202. FORM AND VALIDITY OF CERTIFICATES; ENFORCEMENT OF ENTITY'S RIGHTS Sec. 3.203. SIGNATURE REQUIREMENT Sec. 3.204. DELIVERY REQUIREMENT Sec. 3.205. NOTICE FOR UNCERTIFICATED OWNERSHIP INTEREST
CHAPTER 4. FILINGS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 4.001. SIGNATURE AND DELIVERY Sec. 4.002. ACTION BY SECRETARY OF STATE Sec. 4.003. FILING OR ISSUANCE OF REPRODUCTION OR FACSIMILE Sec. 4.004. TIME FOR FILING Sec. 4.005. CERTIFICATES AND CERTIFIED COPIES Sec. 4.006. FORMS ADOPTED BY SECRETARY OF STATE Sec. 4.007. LIABILITY FOR FALSE FILING INSTRUMENTS Sec. 4.008. OFFENSE; PENALTY Sec. 4.009. FILINGS BY REAL ESTATE INVESTMENT TRUST
[Sections 4.010-4.050 reserved for expansion]
SUBCHAPTER B. WHEN FILINGS TAKE EFFECT
Sec. 4.051. GENERAL RULE Sec. 4.052. DELAYED EFFECTIVENESS OF CERTAIN FILINGS Sec. 4.053. CONDITIONS FOR DELAYED EFFECTIVENESS Sec. 4.054. DELAYED EFFECTIVENESS ON FUTURE EVENT OR FACT Sec. 4.055. STATEMENT OF EVENT OR FACT Sec. 4.056. FAILURE TO FILE STATEMENT Sec. 4.057. ABANDONMENT BEFORE EFFECTIVENESS Sec. 4.058. DELAYED EFFECTIVENESS NOT PERMITTED Sec. 4.059. ACKNOWLEDGMENT OF FILING WITH DELAYED EFFECTIVENESS
[Sections 4.060-4.100 reserved for expansion]
SUBCHAPTER C. CORRECTION AND AMENDMENT
Sec. 4.101. CORRECTION OF FILINGS Sec. 4.102. LIMITATION ON CORRECTION OF FILINGS Sec. 4.103. CERTIFICATE OF CORRECTION Sec. 4.104. FILING CERTIFICATE OF CORRECTION Sec. 4.105. EFFECT OF CERTIFICATE OF CORRECTION Sec. 4.106. AMENDMENT OF FILINGS
[Sections 4.107-4.150 reserved for expansion]
SUBCHAPTER D. FILING FEES
Sec. 4.151. FILING FEES: ALL ENTITIES Sec. 4.152. FILING FEES: FOR-PROFIT CORPORATIONS Sec. 4.153. FILING FEES: NONPROFIT CORPORATIONS Sec. 4.154. FILING FEES: LIMITED LIABILITY COMPANIES Sec. 4.155. FILING FEES: LIMITED PARTNERSHIPS Sec. 4.156. FILING FEES: PROFESSIONAL ASSOCIATIONS Sec. 4.157. FILING FEES: PROFESSIONAL CORPORATIONS Sec. 4.158. FILING FEES: GENERAL PARTNERSHIPS Sec. 4.159. FILING FEES: NONPROFIT ASSOCIATIONS Sec. 4.160. FILING FEES: FOREIGN FILING ENTITIES
CHAPTER 5. NAMES OF ENTITIES; REGISTERED AGENTS AND
REGISTERED OFFICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 5.001. EFFECT ON RIGHTS UNDER OTHER LAW
[Sections 5.002-5.050 reserved for expansion]
SUBCHAPTER B. GENERAL PROVISIONS RELATING TO NAMES
OF ENTITIES
Sec. 5.051. ASSUMED NAME Sec. 5.052. UNAUTHORIZED PURPOSE IN NAME PROHIBITED Sec. 5.053. IDENTICAL AND DECEPTIVELY SIMILAR NAMES PROHIBITED Sec. 5.054. NAME OF CORPORATION, FOREIGN CORPORATION, OR PROFESSIONAL CORPORATION Sec. 5.055. NAME OF LIMITED PARTNERSHIP OR FOREIGN LIMITED PARTNERSHIP Sec. 5.056. NAME OF LIMITED LIABILITY COMPANY OR FOREIGN LIMITED LIABILITY COMPANY Sec. 5.057. NAME OF COOPERATIVE ASSOCIATION Sec. 5.058. NAME OF PROFESSIONAL ASSOCIATION Sec. 5.059. NAME OF PROFESSIONAL LIMITED LIABILITY COMPANY Sec. 5.060. NAME OF PROFESSIONAL ENTITY; CONFLICTS WITH OTHER LAW OR ETHICAL RULE Sec. 5.061. NAME CONTAINING "LOTTO" OR "LOTTERY" PROHIBITED Sec. 5.062. VETERANS ORGANIZATIONS; UNAUTHORIZED USE OF NAME Sec. 5.063. NAME OF LIMITED LIABILITY PARTNERSHIP
[Sections 5.064-5.100 reserved for expansion]
SUBCHAPTER C. RESERVATION OF NAMES
Sec. 5.101. APPLICATION FOR RESERVATION OF NAME Sec. 5.102. RESERVATION OF CERTAIN NAMES PROHIBITED; EXCEPTIONS Sec. 5.103. ACTION ON APPLICATION Sec. 5.104. DURATION OF RESERVATION OF NAME Sec. 5.105. RENEWAL OF RESERVATION Sec. 5.106. TRANSFER OF RESERVATION OF NAME
[Sections 5.107-5.150 reserved for expansion]
SUBCHAPTER D. REGISTRATION OF NAMES
Sec. 5.151. APPLICATION BY CERTAIN ENTITIES FOR REGISTRATION OF NAME Sec. 5.152. APPLICATION FOR REGISTRATION OF NAME Sec. 5.153. CERTAIN REGISTRATIONS PROHIBITED; EXCEPTIONS Sec. 5.154. DURATION OF REGISTRATION OF NAME Sec. 5.155. RENEWAL OF REGISTRATION
[Sections 5.156-5.200 reserved for expansion]
SUBCHAPTER E. REGISTERED AGENTS AND REGISTERED OFFICES
Sec. 5.201. DESIGNATION AND MAINTENANCE OF REGISTERED AGENT AND REGISTERED OFFICE Sec. 5.202. CHANGE BY ENTITY TO REGISTERED OFFICE OR REGISTERED AGENT Sec. 5.203. CHANGE BY REGISTERED AGENT TO NAME OR ADDRESS OF REGISTERED OFFICE Sec. 5.204. RESIGNATION OF REGISTERED AGENT
[Sections 5.205-5.250 reserved for expansion]
SUBCHAPTER F. SERVICE OF PROCESS
Sec. 5.251. FAILURE TO DESIGNATE REGISTERED AGENT Sec. 5.252. SERVICE ON SECRETARY OF STATE Sec. 5.253. ACTION BY SECRETARY OF STATE Sec. 5.254. REQUIRED RECORDS OF SECRETARY OF STATE Sec. 5.255. AGENT FOR SERVICE OF PROCESS, NOTICE, OR DEMAND AS MATTER OF LAW Sec. 5.256. OTHER MEANS OF SERVICE NOT PRECLUDED Sec. 5.257. SERVICE OF PROCESS BY POLITICAL SUBDIVISION
CHAPTER 6. MEETINGS AND VOTING
SUBCHAPTER A. MEETINGS
Sec. 6.001. LOCATION OF MEETINGS Sec. 6.002. ALTERNATIVE FORMS OF MEETINGS Sec. 6.003. PARTICIPATION CONSTITUTES PRESENCE
[Sections 6.004-6.050 reserved for expansion]
SUBCHAPTER B. NOTICE OF MEETINGS
Sec. 6.051. GENERAL NOTICE REQUIREMENTS Sec. 6.052. WAIVER OF NOTICE Sec. 6.053. EXCEPTION
[Sections 6.054-6.100 reserved for expansion]
SUBCHAPTER C. RECORD DATES
Sec. 6.101. RECORD DATE FOR PURPOSE OTHER THAN WRITTEN CONSENT TO ACTION Sec. 6.102. RECORD DATE FOR WRITTEN CONSENT TO ACTION Sec. 6.103. RECORD DATE FOR SUSPENDED DISTRIBUTIONS
[Sections 6.104-6.150 reserved for expansion]
SUBCHAPTER D. VOTING OF OWNERSHIP INTERESTS
Sec. 6.151. MANNER OF VOTING OF INTERESTS Sec. 6.152. VOTING OF INTERESTS OWNED BY ENTITY Sec. 6.153. VOTING OF INTERESTS OWNED BY ANOTHER ENTITY Sec. 6.154. VOTING OF INTERESTS IN AN ESTATE OR TRUST Sec. 6.155. VOTING OF INTERESTS BY RECEIVER Sec. 6.156. VOTING OF PLEDGED INTERESTS
[Sections 6.157-6.200 reserved for expansion]
SUBCHAPTER E. ACTION BY WRITTEN CONSENT
Sec. 6.201. UNANIMOUS WRITTEN CONSENT TO ACTION Sec. 6.202. ACTION BY LESS THAN UNANIMOUS WRITTEN CONSENT Sec. 6.203. DELIVERY OF LESS THAN UNANIMOUS WRITTEN CONSENT Sec. 6.204. ADVANCE NOTICE NOT REQUIRED
[Sections 6.205-6.250 reserved for expansion]
SUBCHAPTER F. VOTING TRUSTS AND VOTING AGREEMENTS
Sec. 6.251. VOTING TRUSTS Sec. 6.252. VOTING AGREEMENTS
[Sections 6.253-6.300 reserved for expansion]
SUBCHAPTER G. APPLICABILITY OF CHAPTER TO PARTNERSHIPS
Sec. 6.301. APPLICABILITY OF CHAPTER TO PARTNERSHIPS Sec. 6.302. APPLICABILITY OF SUBCHAPTERS C AND D TO LIMITED LIABILITY COMPANIES
CHAPTER 7. LIABILITY
Sec. 7.001. LIMITATION OF LIABILITY OF GOVERNING PERSON
CHAPTER 8. INDEMNIFICATION AND INSURANCE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 8.001. DEFINITIONS Sec. 8.002. APPLICATION OF CHAPTER Sec. 8.003. LIMITATIONS IN GOVERNING DOCUMENTS Sec. 8.004. LIMITATIONS IN CHAPTER
[Sections 8.005-8.050 reserved for expansion]
SUBCHAPTER B. MANDATORY AND COURT-ORDERED INDEMNIFICATION
Sec. 8.051. MANDATORY INDEMNIFICATION Sec. 8.052. COURT-ORDERED INDEMNIFICATION
[Sections 8.053-8.100 reserved for expansion]
SUBCHAPTER C. PERMISSIVE INDEMNIFICATION AND ADVANCEMENT
OF EXPENSES
Sec. 8.101. PERMISSIVE INDEMNIFICATION Sec. 8.102. GENERAL SCOPE OF PERMISSIVE INDEMNIFICATION Sec. 8.103. MANNER FOR DETERMINING PERMISSIVE INDEMNIFICATION Sec. 8.104. ADVANCEMENT OF EXPENSES Sec. 8.105. INDEMNIFICATION OF AND ADVANCEMENT OF EXPENSES TO PERSONS OTHER THAN GOVERNING PERSONS Sec. 8.106. PERMISSIVE INDEMNIFICATION OF AND REIMBURSEMENT OF EXPENSES TO WITNESSES
[Sections 8.107-8.150 reserved for expansion]
SUBCHAPTER D. LIABILITY INSURANCE; REPORTING REQUIREMENTS
Sec. 8.151. INSURANCE AND OTHER ARRANGEMENTS Sec. 8.152. REPORTS OF INDEMNIFICATION AND ADVANCES
CHAPTER 9. FOREIGN ENTITIES
SUBCHAPTER A. REGISTRATION
Sec. 9.001. FOREIGN ENTITIES REQUIRED TO REGISTER Sec. 9.002. FOREIGN ENTITIES NOT REQUIRED TO REGISTER Sec. 9.003. PERMISSIVE REGISTRATION Sec. 9.004. REGISTRATION PROCEDURE Sec. 9.005. SUPPLEMENTAL INFORMATION REQUIRED IN APPLICATION FOR REGISTRATION OF FOREIGN FOR-PROFIT CORPORATION Sec. 9.006. SUPPLEMENTAL INFORMATION REQUIRED IN APPLICATION FOR REGISTRATION OF FOREIGN NONPROFIT CORPORATION Sec. 9.007. SUPPLEMENTAL INFORMATION REQUIRED IN APPLICATION FOR REGISTRATION OF FOREIGN LIMITED LIABILITY PARTNERSHIP Sec. 9.008. EFFECT OF REGISTRATION Sec. 9.009. AMENDMENTS TO REGISTRATION Sec. 9.010. NAME CHANGE OF FOREIGN ENTITY Sec. 9.011. VOLUNTARY WITHDRAWAL OF REGISTRATION
[Sections 9.012-9.050 reserved for expansion]
SUBCHAPTER B. FAILURE TO REGISTER
Sec. 9.051. TRANSACTING BUSINESS OR MAINTAINING COURT PROCEEDING WITHOUT REGISTRATION Sec. 9.052. CIVIL PENALTY Sec. 9.053. VENUE Sec. 9.054. LATE FILING FEE Sec. 9.055. REQUIREMENTS OF OTHER LAW
[Sections 9.056-9.100 reserved for expansion]
SUBCHAPTER C. REVOCATION OF REGISTRATION BY
SECRETARY OF STATE
Sec. 9.101. REVOCATION OF REGISTRATION BY SECRETARY OF STATE Sec. 9.102. CERTIFICATE OF REVOCATION Sec. 9.103. REINSTATEMENT BY SECRETARY OF STATE AFTER REVOCATION Sec. 9.104. PROCEDURES FOR REINSTATEMENT Sec. 9.105. USE OF NAME SIMILAR TO PREVIOUSLY REGISTERED NAME Sec. 9.106. REINSTATEMENT OF REGISTRATION FOLLOWING TAX FORFEITURE
[Sections 9.107-9.150 reserved for expansion]
SUBCHAPTER D. JUDICIAL REVOCATION OF REGISTRATION
Sec. 9.151. REVOCATION OF REGISTRATION BY COURT ACTION Sec. 9.152. NOTIFICATION OF CAUSE BY SECRETARY OF STATE Sec. 9.153. FILING OF ACTION BY ATTORNEY GENERAL Sec. 9.154. CURE BEFORE FINAL JUDGMENT Sec. 9.155. JUDGMENT REQUIRING REVOCATION Sec. 9.156. STAY OF JUDGMENT Sec. 9.157. OPPORTUNITY FOR CURE AFTER AFFIRMATION OF FINDINGS BY APPEALS COURT Sec. 9.158. JURISDICTION AND VENUE Sec. 9.159. PROCESS IN STATE ACTION Sec. 9.160. PUBLICATION OF NOTICE Sec. 9.161. FILING OF DECREE OF REVOCATION AGAINST FOREIGN FILING ENTITY
[Sections 9.162-9.200 reserved for expansion]
SUBCHAPTER E. BUSINESS, RIGHTS, AND OBLIGATIONS
Sec. 9.201. BUSINESS OF FOREIGN ENTITY Sec. 9.202. RIGHTS AND PRIVILEGES Sec. 9.203. OBLIGATIONS AND LIABILITIES Sec. 9.204. RIGHT OF FOREIGN FILING ENTITY TO PARTICIPATE IN BUSINESS OF CERTAIN DOMESTIC ENTITIES
[Sections 9.205-9.250 reserved for expansion]
SUBCHAPTER F. DETERMINATION OF TRANSACTING BUSINESS IN
THIS STATE
Sec. 9.251. ACTIVITIES NOT CONSTITUTING TRANSACTING BUSINESS IN THIS STATE Sec. 9.252. OTHER ACTIVITIES
[Sections 9.253-9.300 reserved for expansion]
SUBCHAPTER G. MISCELLANEOUS PROVISIONS
Sec. 9.301. APPLICABILITY OF CODE TO CERTAIN FOREIGN ENTITIES
CHAPTER 10. MERGERS, INTEREST EXCHANGES, CONVERSIONS,
AND SALES OF ASSETS
SUBCHAPTER A. MERGERS
Sec. 10.001. ADOPTION OF PLAN OF MERGER Sec. 10.002. PLAN OF MERGER: REQUIRED PROVISIONS Sec. 10.003. CONTENTS OF PLAN OF MERGER: MORE THAN ONE SUCCESSOR Sec. 10.004. PLAN OF MERGER: PERMISSIVE PROVISIONS Sec. 10.005. CREATION OF HOLDING COMPANY BY MERGER Sec. 10.006. SHORT FORM MERGER Sec. 10.007. EFFECTIVENESS OF MERGER Sec. 10.008. EFFECT OF MERGER Sec. 10.009. SPECIAL PROVISIONS APPLYING TO PARTNERSHIP MERGERS Sec. 10.010. SPECIAL PROVISIONS APPLYING TO NONPROFIT CORPORATION MERGERS
[Sections 10.011-10.050 reserved for expansion]
SUBCHAPTER B. EXCHANGES OF INTERESTS
Sec. 10.051. INTEREST EXCHANGES Sec. 10.052. PLAN OF EXCHANGE: REQUIRED PROVISIONS Sec. 10.053. PLAN OF EXCHANGE: PERMISSIVE PROVISIONS Sec. 10.054. EFFECTIVENESS OF EXCHANGE Sec. 10.055. GENERAL EFFECT OF INTEREST EXCHANGE Sec. 10.056. SPECIAL PROVISIONS APPLYING TO PARTNERSHIPS
[Sections 10.057-10.100 reserved for expansion]
SUBCHAPTER C. CONVERSIONS
Sec. 10.101. CONVERSION OF DOMESTIC ENTITIES Sec. 10.102. CONVERSION OF NON-CODE ORGANIZATIONS Sec. 10.103. PLAN OF CONVERSION: REQUIRED PROVISIONS Sec. 10.104. PLAN OF CONVERSION: PERMISSIVE PROVISIONS Sec. 10.105. EFFECTIVENESS OF CONVERSION Sec. 10.106. GENERAL EFFECT OF CONVERSION Sec. 10.107. SPECIAL PROVISIONS APPLYING TO PARTNERSHIP CONVERSIONS Sec. 10.108. SPECIAL PROVISIONS APPLYING TO NONPROFIT CORPORATION CONVERSIONS
[Sections 10.109-10.150 reserved for expansion]
SUBCHAPTER D. CERTIFICATE OF MERGER, EXCHANGE,
OR CONVERSION
Sec. 10.151. CERTIFICATE OF MERGER AND EXCHANGE Sec. 10.152. CERTIFICATE OF MERGER: SHORT FORM MERGER Sec. 10.153. FILING OF CERTIFICATE OF MERGER OR EXCHANGE Sec. 10.154. CERTIFICATE OF CONVERSION Sec. 10.155. FILING OF CERTIFICATE OF CONVERSION Sec. 10.156. ACCEPTANCE OF CERTIFICATE FOR FILING
[Sections 10.157-10.200 reserved for expansion]
SUBCHAPTER E. ABANDONMENT OF MERGER, EXCHANGE,
OR CONVERSION
Sec. 10.201. ABANDONMENT OF PLAN OF MERGER, EXCHANGE, OR CONVERSION Sec. 10.202. ABANDONMENT AFTER FILING
[Sections 10.203-10.250 reserved for expansion]
SUBCHAPTER F. PROPERTY TRANSFERS AND DISPOSITIONS
Sec. 10.251. GENERAL POWER OF DOMESTIC ENTITY TO SELL, LEASE, OR CONVEY PROPERTY Sec. 10.252. NO APPROVAL REQUIRED FOR CERTAIN DISPOSITIONS OF PROPERTY Sec. 10.253. RECORDING INSTRUMENT CONVEYING REAL PROPERTY OF DOMESTIC ENTITY Sec. 10.254. DISPOSITION OF PROPERTY NOT A MERGER OR CONVERSION; LIABILITY
[Sections 10.255-10.300 reserved for expansion]
SUBCHAPTER G. BANKRUPTCY REORGANIZATION
Sec. 10.301. REORGANIZATION UNDER BANKRUPTCY AND SIMILAR LAWS Sec. 10.302. SIGNING OF DOCUMENTS Sec. 10.303. REORGANIZATION WITH OTHER ENTITIES Sec. 10.304. RIGHT OF DISSENT AND APPRAISAL EXCLUDED Sec. 10.305. AFTER FINAL DECREE Sec. 10.306. CHAPTER CUMULATIVE OF OTHER CHANGES
[Sections 10.307-10.350 reserved for expansion]
SUBCHAPTER H. RIGHTS OF DISSENTING OWNERS
Sec. 10.351. APPLICABILITY OF SUBCHAPTER Sec. 10.352. DEFINITIONS Sec. 10.353. FORM AND VALIDITY OF NOTICE Sec. 10.354. RIGHTS OF DISSENT AND APPRAISAL Sec. 10.355. NOTICE OF RIGHT OF DISSENT AND APPRAISAL Sec. 10.356. PROCEDURE FOR DISSENT BY OWNERS AS TO ACTIONS; PERFECTION OF RIGHT OF DISSENT AND APPRAISAL Sec. 10.357. WITHDRAWAL OF DEMAND FOR FAIR VALUE OF OWNERSHIP INTEREST Sec. 10.358. RESPONSE BY ORGANIZATION TO NOTICE OF DISSENT AND DEMAND FOR FAIR VALUE BY DISSENTING OWNER Sec. 10.359. RECORD OF DEMAND FOR FAIR VALUE OF OWNERSHIP INTEREST Sec. 10.360. RIGHTS OF TRANSFEREE OF CERTAIN OWNERSHIP INTEREST Sec. 10.361. PROCEEDING TO DETERMINE FAIR VALUE OF OWNERSHIP INTEREST AND OWNERS ENTITLED TO PAYMENT; APPOINTMENT OF APPRAISERS Sec. 10.362. COMPUTATION AND DETERMINATION OF FAIR VALUE OF OWNERSHIP INTEREST Sec. 10.363. POWERS AND DUTIES OF APPRAISER; APPRAISAL PROCEDURES Sec. 10.364. OBJECTION TO APPRAISAL; HEARING Sec. 10.365. COURT COSTS; COMPENSATION FOR APPRAISER Sec. 10.366. STATUS OF OWNERSHIP INTEREST HELD OR FORMERLY HELD BY DISSENTING OWNER Sec. 10.367. RIGHTS OF OWNERS FOLLOWING TERMINATION OF RIGHT OF DISSENT Sec. 10.368. EXCLUSIVITY OF REMEDY OF DISSENT AND APPRAISAL
[Sections 10.369-10.900 reserved for expansion]
SUBCHAPTER Z. MISCELLANEOUS PROVISIONS
Sec. 10.901. CREDITORS; ANTITRUST Sec. 10.902. NONEXCLUSIVITY
CHAPTER 11. WINDING UP AND TERMINATION OF DOMESTIC ENTITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 11.001. DEFINITIONS
[Sections 11.002-11.050 reserved for expansion]
SUBCHAPTER B. WINDING UP OF DOMESTIC ENTITY
Sec. 11.051. EVENT REQUIRING WINDING UP OF DOMESTIC ENTITY Sec. 11.052. WINDING UP PROCEDURES Sec. 11.053. PROPERTY APPLIED TO DISCHARGE LIABILITIES AND OBLIGATIONS Sec. 11.054. COURT SUPERVISION OF WINDING UP PROCESS Sec. 11.055. COURT ACTION OR PROCEEDING DURING WINDING UP Sec. 11.056. SUPPLEMENTAL EVENT REQUIRING WINDING UP OF LIMITED LIABILITY COMPANY Sec. 11.057. SUPPLEMENTAL EVENTS REQUIRING WINDING UP OF GENERAL PARTNERSHIP Sec. 11.058. SUPPLEMENTAL EVENTS REQUIRING WINDING UP OF LIMITED PARTNERSHIP Sec. 11.059. SUPPLEMENTAL PROVISIONS FOR CORPORATIONS
[Sections 11.060-11.100 reserved for expansion]
SUBCHAPTER C. TERMINATION OF DOMESTIC ENTITY
Sec. 11.101. CERTIFICATE OF TERMINATION FOR FILING ENTITY Sec. 11.102. EFFECTIVENESS OF TERMINATION OF FILING ENTITY Sec. 11.103. EFFECTIVENESS OF TERMINATION OF NONFILING ENTITY Sec. 11.104. ACTION BY SECRETARY OF STATE Sec. 11.105. SUPPLEMENTAL INFORMATION REQUIRED BY CERTIFICATE OF TERMINATION OF NONPROFIT CORPORATION
[Sections 11.106-11.150 reserved for expansion]
SUBCHAPTER D. REVOCATION AND CONTINUATION
Sec. 11.151. REVOCATION OF VOLUNTARY WINDING UP Sec. 11.152. CONTINUATION OF BUSINESS WITHOUT WINDING UP
[Sections 11.153-11.200 reserved for expansion]
SUBCHAPTER E. REINSTATEMENT OF TERMINATED ENTITY
Sec. 11.201. CONDITIONS FOR REINSTATEMENT Sec. 11.202. PROCEDURES FOR REINSTATEMENT Sec. 11.203. USE OF NAME SIMILAR TO PREVIOUSLY REGISTERED NAME Sec. 11.204. EFFECTIVENESS OF REINSTATEMENT OF NONFILING ENTITY Sec. 11.205. EFFECTIVENESS OF REINSTATEMENT OF FILING ENTITY Sec. 11.206. EFFECT OF REINSTATEMENT
[Sections 11.207-11.250 reserved for expansion]
SUBCHAPTER F. INVOLUNTARY TERMINATION OF FILING ENTITY
BY SECRETARY OF STATE
Sec. 11.251. TERMINATION OF FILING ENTITY BY SECRETARY OF STATE Sec. 11.252. CERTIFICATE OF TERMINATION Sec. 11.253. REINSTATEMENT BY SECRETARY OF STATE AFTER INVOLUNTARY TERMINATION Sec. 11.254. REINSTATEMENT OF CERTIFICATE OF FORMATION FOLLOWING TAX FORFEITURE
[Sections 11.255-11.300 reserved for expansion]
SUBCHAPTER G. JUDICIAL WINDING UP AND TERMINATION
Sec. 11.301. INVOLUNTARY WINDING UP AND TERMINATION OF FILING ENTITY BY COURT ACTION Sec. 11.302. NOTIFICATION OF CAUSE BY SECRETARY OF STATE Sec. 11.303. FILING OF ACTION BY ATTORNEY GENERAL Sec. 11.304. CURE BEFORE FINAL JUDGMENT Sec. 11.305. JUDGMENT REQUIRING WINDING UP AND TERMINATION Sec. 11.306. STAY OF JUDGMENT Sec. 11.307. OPPORTUNITY FOR CURE AFTER AFFIRMATION OF FINDINGS BY APPEALS COURT Sec. 11.308. JURISDICTION AND VENUE Sec. 11.309. PROCESS IN STATE ACTION Sec. 11.310. PUBLICATION OF NOTICE Sec. 11.311. ACTION ALLOWED AFTER EXPIRATION OF FILING ENTITY'S DURATION Sec. 11.312. COMPLIANCE BY TERMINATED ENTITY Sec. 11.313. TIMING OF TERMINATION Sec. 11.314. INVOLUNTARY WINDING UP AND TERMINATION OF PARTNERSHIP OR LIMITED LIABILITY COMPANY Sec. 11.315. FILING OF DECREE OF TERMINATION AGAINST FILING ENTITY
[Sections 11.316-11.350 reserved for expansion]
SUBCHAPTER H. CLAIMS RESOLUTION ON TERMINATION
Sec. 11.351. LIABILITY OF TERMINATED FILING ENTITY Sec. 11.352. DEPOSIT WITH COMPTROLLER OF AMOUNT DUE OWNERS AND CREDITORS WHO ARE UNKNOWN OR CANNOT BE LOCATED Sec. 11.353. DISCHARGE OF LIABILITY OF PERSON RESPONSIBLE FOR LIQUIDATION Sec. 11.354. PAYMENT FROM ACCOUNT BY COMPTROLLER Sec. 11.355. NOTICE OF ESCHEAT; ESCHEAT Sec. 11.356. LIMITED SURVIVAL AFTER TERMINATION Sec. 11.357. GOVERNING PERSONS OF ENTITY DURING LIMITED SURVIVAL Sec. 11.358. ACCELERATED PROCEDURE FOR EXISTING CLAIM RESOLUTION Sec. 11.359. EXTINGUISHMENT OF EXISTING CLAIM
[Sections 11.360-11.400 reserved for expansion]
SUBCHAPTER I. RECEIVERSHIP
Sec. 11.401. CODE GOVERNS Sec. 11.402. JURISDICTION TO APPOINT RECEIVER Sec. 11.403. APPOINTMENT OF RECEIVER FOR SPECIFIC PROPERTY Sec. 11.404. APPOINTMENT OF RECEIVER TO REHABILITATE DOMESTIC ENTITY Sec. 11.405. APPOINTMENT OF RECEIVER TO LIQUIDATE DOMESTIC ENTITY; LIQUIDATION Sec. 11.406. RECEIVERS: QUALIFICATIONS, POWERS, AND DUTIES Sec. 11.407. COURT-ORDERED FILING OF CLAIMS Sec. 11.408. SUPERVISING COURT; JURISDICTION; AUTHORITY Sec. 11.409. ANCILLARY RECEIVERSHIPS OF FOREIGN ENTITIES Sec. 11.410. RECEIVERSHIP FOR ALL PROPERTY AND BUSINESS OF FOREIGN ENTITY Sec. 11.411. GOVERNING PERSONS AND OWNERS NOT NECESSARY PARTIES DEFENDANT Sec. 11.412. DECREE OF INVOLUNTARY TERMINATION Sec. 11.413. SUPPLEMENTAL PROVISIONS FOR APPLICATION OF PROCEEDS FROM LIQUIDATION OF NONPROFIT CORPORATION
CHAPTER 12. ADMINISTRATIVE POWERS
SUBCHAPTER A. SECRETARY OF STATE
Sec. 12.001. AUTHORITY OF SECRETARY OF STATE Sec. 12.002. INTERROGATORIES BY SECRETARY OF STATE Sec. 12.003. INFORMATION DISCLOSED BY INTERROGATORIES Sec. 12.004. APPEALS FROM SECRETARY OF STATE
[Sections 12.005-12.150 reserved for expansion]
SUBCHAPTER B. ATTORNEY GENERAL
Sec. 12.151. AUTHORITY OF ATTORNEY GENERAL TO EXAMINE BOOKS AND RECORDS Sec. 12.152. REQUEST TO EXAMINE Sec. 12.153. AUTHORITY TO EXAMINE MANAGEMENT OF ENTITY Sec. 12.154. AUTHORITY TO DISCLOSE INFORMATION Sec. 12.155. FORFEITURE OF BUSINESS PRIVILEGES Sec. 12.156. CRIMINAL PENALTY
[Sections 12.157-12.200 reserved for expansion]
SUBCHAPTER C. ENFORCEMENT LIEN
Sec. 12.201. LIEN FOR LAW VIOLATIONS
[Sections 12.202-12.250 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT PROCEEDINGS
Sec. 12.251. RECEIVER Sec. 12.252. FORECLOSURE Sec. 12.253. ACTION AGAINST INSOLVENT ENTITY Sec. 12.254. SUITS BY DISTRICT OR COUNTY ATTORNEY Sec. 12.255. PERMISSION TO SUE Sec. 12.256. EXAMINATION AND NOTICE Sec. 12.257. DISMISSAL OF ACTION Sec. 12.258. LIQUIDATION OF INSOLVENT ENTITY Sec. 12.259. EXTRAORDINARY REMEDIES; BOND Sec. 12.260. ABATEMENT OF SUIT Sec. 12.261. PROVISIONS CUMULATIVE
TITLE 2. CORPORATIONS
CHAPTER 20. GENERAL PROVISIONS
Sec. 20.001. REQUIREMENT THAT FILING INSTRUMENT BE SIGNED BY OFFICER Sec. 20.002. ULTRA VIRES ACTS
CHAPTER 21. FOR-PROFIT CORPORATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 21.001. APPLICABILITY OF CHAPTER Sec. 21.002. DEFINITIONS
[Sections 21.003-21.050 reserved for expansion]
SUBCHAPTER B. FORMATION AND GOVERNING DOCUMENTS
Sec. 21.051. NO PROPERTY RIGHT IN CERTIFICATE OF FORMATION Sec. 21.052. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF FORMATION Sec. 21.053. ADOPTION OF AMENDMENT BY BOARD OF DIRECTORS Sec. 21.054. ADOPTION OF AMENDMENT BY SHAREHOLDERS Sec. 21.055. NOTICE OF AND MEETING TO CONSIDER PROPOSED AMENDMENT Sec. 21.056. RESTATED CERTIFICATE OF FORMATION Sec. 21.057. BYLAWS Sec. 21.058. DUAL AUTHORITY Sec. 21.059. ORGANIZATION MEETING
[Sections 21.060-21.100 reserved for expansion]
SUBCHAPTER C. SHAREHOLDERS' AGREEMENTS
Sec. 21.101. SHAREHOLDERS' AGREEMENT Sec. 21.102. TERM OF AGREEMENT Sec. 21.103. DISCLOSURE OF AGREEMENT; RECALL OF CERTAIN CERTIFICATES Sec. 21.104. EFFECT OF SHAREHOLDERS' AGREEMENT Sec. 21.105. RIGHT OF RECISSION; KNOWLEDGE OF PURCHASER OF SHARES Sec. 21.106. AGREEMENT LIMITING AUTHORITY OF AND SUPPLANTING BOARD OF DIRECTORS; LIABILITY Sec. 21.107. LIABILITY OF SHAREHOLDER Sec. 21.108. PERSONS ACTING IN PLACE OF SHAREHOLDERS Sec. 21.109. AGREEMENT NOT EFFECTIVE
[Sections 21.110-21.150 reserved for expansion]
SUBCHAPTER D. SHARES, OPTIONS, AND CONVERTIBLE SECURITIES
Sec. 21.151. NUMBER OF AUTHORIZED SHARES Sec. 21.152. CLASSES AND SERIES OF SHARES Sec. 21.153. DESIGNATIONS, PREFERENCES, LIMITATIONS, AND RIGHTS OF A CLASS OR SERIES Sec. 21.154. CERTAIN OPTIONAL CHARACTERISTICS OF SHARES Sec. 21.155. SERIES OF SHARES ESTABLISHED BY BOARD OF DIRECTORS Sec. 21.156. ACTIONS WITH RESPECT TO SERIES OF SHARES Sec. 21.157. ISSUANCE OF SHARES Sec. 21.158. ISSUANCE OF SHARES UNDER PLAN OF MERGER OR CONVERSION Sec. 21.159. TYPES OF CONSIDERATION FOR SHARES Sec. 21.160. DETERMINATION OF CONSIDERATION FOR SHARES Sec. 21.161. AMOUNT OF CONSIDERATION FOR ISSUANCE OF CERTAIN SHARES Sec. 21.162. VALUE AND SUFFICIENCY OF CONSIDERATION Sec. 21.163. ISSUANCE AND DISPOSITION OF FRACTIONAL SHARES OR SCRIP Sec. 21.164. RIGHTS OF HOLDERS OF FRACTIONAL SHARES OR SCRIP Sec. 21.165. SUBSCRIPTIONS Sec. 21.166. PREFORMATION SUBSCRIPTION Sec. 21.167. COMMITMENT TO PURCHASE SHARES Sec. 21.168. STOCK RIGHTS, OPTIONS, AND CONVERTIBLE INDEBTEDNESS Sec. 21.169. TERMS AND CONDITIONS OF RIGHTS AND OPTIONS Sec. 21.170. CONSIDERATION FOR RIGHTS, OPTIONS, AND CONVERTIBLE INDEBTEDNESS Sec. 21.171. TREASURY SHARES Sec. 21.172. EXPENSES OF ORGANIZATION, REORGANIZATION, AND FINANCING OF CORPORATION Sec. 21.173. SUPPLEMENTAL REQUIRED RECORDS
[Sections 21.174-21.200 reserved for expansion]
SUBCHAPTER E. SHAREHOLDER RIGHTS AND RESTRICTIONS
Sec. 21.201. REGISTERED HOLDERS AS OWNERS Sec. 21.202. DEFINITION OF SHARES Sec. 21.203. NO STATUTORY PREEMPTIVE RIGHT UNLESS PROVIDED BY CERTIFICATE OF FORMATION Sec. 21.204. STATUTORY PREEMPTIVE RIGHTS Sec. 21.205. WAIVER OF PREEMPTIVE RIGHT Sec. 21.206. LIMITATION ON ACTION TO ENFORCE PREEMPTIVE RIGHT Sec. 21.207. DISPOSITION OF SHARES HAVING PREEMPTIVE RIGHTS Sec. 21.208. PREEMPTIVE RIGHT IN EXISTING CORPORATION Sec. 21.209. TRANSFER OF SHARES AND OTHER SECURITIES Sec. 21.210. RESTRICTION ON TRANSFER OF SHARES AND OTHER SECURITIES Sec. 21.211. VALID RESTRICTIONS ON TRANSFER Sec. 21.212. BYLAW OR AGREEMENT RESTRICTING TRANSFER OF SHARES OR OTHER SECURITIES Sec. 21.213. ENFORCEABILITY OF RESTRICTION ON TRANSFER OF CERTAIN SECURITIES Sec. 21.214. JOINT OWNERSHIP OF SHARES Sec. 21.215. LIABILITY FOR DESIGNATING OWNER OF SHARES Sec. 21.216. LIABILITY REGARDING JOINT OWNERSHIP OF SHARES Sec. 21.217. LIABILITY OF ASSIGNEE OR TRANSFEREE Sec. 21.218. EXAMINATION OF RECORDS Sec. 21.219. ANNUAL AND INTERIM STATEMENTS OF CORPORATION Sec. 21.220. PENALTY FOR FAILURE TO PREPARE VOTING LIST Sec. 21.221. PENALTY FOR FAILURE TO PROVIDE NOTICE OF MEETING Sec. 21.222. PENALTY FOR REFUSAL TO PERMIT EXAMINATION OF CERTAIN RECORDS Sec. 21.223. LIMITATION OF LIABILITY FOR OBLIGATIONS Sec. 21.224. PREEMPTION OF LIABILITY Sec. 21.225. EXCEPTIONS TO LIMITATIONS Sec. 21.226. PLEDGEES AND TRUST ADMINISTRATORS
[Sections 21.227-21.250 reserved for expansion]
SUBCHAPTER F. REDUCTIONS IN STATED CAPITAL;
CANCELLATION OF TREASURY SHARES
Sec. 21.251. REDUCTION OF STATED CAPITAL BY REDEMPTION OR PURCHASE OF REDEEMABLE SHARES Sec. 21.252. CANCELLATION OF TREASURY SHARES Sec. 21.253. PROCEDURES FOR REDUCTION OF STATED CAPITAL BY BOARD OF DIRECTORS Sec. 21.254. RESTRICTION ON REDUCTION OF STATED CAPITAL
[Sections 21.255-21.300 reserved for expansion]
SUBCHAPTER G. DISTRIBUTIONS AND SHARE DIVIDENDS
Sec. 21.301. DEFINITIONS Sec. 21.302. AUTHORITY FOR DISTRIBUTIONS Sec. 21.303. LIMITATIONS ON DISTRIBUTIONS Sec. 21.304. REDEMPTIONS Sec. 21.305. NOTICE OF REDEMPTION Sec. 21.306. DEPOSIT OF MONEY FOR REDEMPTION Sec. 21.307. PAYMENT OF REDEEMED SHARES Sec. 21.308. PRIORITY OF DISTRIBUTIONS Sec. 21.309. RESERVES, DESIGNATIONS, AND ALLOCATIONS FROM SURPLUS Sec. 21.310. AUTHORITY FOR SHARE DIVIDENDS Sec. 21.311. LIMITATIONS ON SHARE DIVIDENDS Sec. 21.312. VALUE OF SHARES ISSUED AS SHARE DIVIDENDS Sec. 21.313. TRANSFER OF SURPLUS FOR SHARE DIVIDENDS Sec. 21.314. DETERMINATION OF SOLVENCY, NET ASSETS, STATED CAPITAL, AND SURPLUS Sec. 21.315. DATE OF DETERMINATION OF SOLVENCY, NET ASSETS, STATED CAPITAL, AND SURPLUS Sec. 21.316. LIABILITY OF DIRECTORS FOR WRONGFUL DISTRIBUTIONS Sec. 21.317. STATUTE OF LIMITATIONS ON ACTION FOR WRONGFUL DISTRIBUTION Sec. 21.318. CONTRIBUTION FROM CERTAIN SHAREHOLDERS AND DIRECTORS
[Sections 21.319-21.350 reserved for expansion]
SUBCHAPTER H. SHAREHOLDERS' MEETINGS; VOTING AND QUORUM
Sec. 21.351. ANNUAL MEETING Sec. 21.352. SPECIAL MEETINGS Sec. 21.353. NOTICE OF MEETING Sec. 21.354. INSPECTION OF VOTING LIST Sec. 21.355. CLOSING OF SHARE TRANSFER RECORDS Sec. 21.356. RECORD DATE FOR WRITTEN CONSENT TO ACTION Sec. 21.357. RECORD DATE FOR PURPOSE OTHER THAN WRITTEN CONSENT TO ACTION Sec. 21.358. QUORUM Sec. 21.359. VOTING IN ELECTION OF DIRECTORS Sec. 21.360. NO CUMULATIVE VOTING RIGHT UNLESS AUTHORIZED Sec. 21.361. CUMULATIVE VOTING IN ELECTION OF DIRECTORS Sec. 21.362. CUMULATIVE VOTING RIGHT IN CERTAIN CORPORATIONS Sec. 21.363. VOTING ON MATTERS OTHER THAN ELECTION OF DIRECTORS Sec. 21.364. VOTE REQUIRED TO APPROVE FUNDAMENTAL ACTION Sec. 21.365. CHANGES IN VOTE REQUIRED FOR CERTAIN MATTERS Sec. 21.366. NUMBER OF VOTES PER SHARE Sec. 21.367. VOTING IN PERSON OR BY PROXY Sec. 21.368. TERM OF PROXY Sec. 21.369. REVOCABILITY OF PROXY Sec. 21.370. ENFORCEABILITY OF PROXY Sec. 21.371. PROCEDURES IN BYLAWS RELATING TO PROXIES Sec. 21.372. SHAREHOLDER MEETING LIST
[Sections 21.373-21.400 reserved for expansion]
SUBCHAPTER I. BOARD OF DIRECTORS
Sec. 21.401. MANAGEMENT BY BOARD OF DIRECTORS Sec. 21.402. BOARD MEMBER ELIGIBILITY REQUIREMENTS Sec. 21.403. NUMBER OF DIRECTORS Sec. 21.404. DESIGNATION OF INITIAL BOARD OF DIRECTORS Sec. 21.405. ELECTION OF BOARD OF DIRECTORS Sec. 21.406. SPECIAL VOTING RIGHTS OF DIRECTORS Sec. 21.407. TERM OF OFFICE Sec. 21.408. SPECIAL TERMS OF OFFICE Sec. 21.409. REMOVAL OF DIRECTORS Sec. 21.410. VACANCY Sec. 21.411. NOTICE OF MEETING Sec. 21.412. WAIVER OF NOTICE Sec. 21.413. QUORUM Sec. 21.414. DISSENT TO ACTION Sec. 21.415. ACTION BY DIRECTORS Sec. 21.416. COMMITTEES OF BOARD OF DIRECTORS Sec. 21.417. ELECTION OF OFFICERS Sec. 21.418. CONTRACTS OR TRANSACTIONS INVOLVING INTERESTED DIRECTORS AND OFFICERS
[Sections 21.419-21.450 reserved for expansion]
SUBCHAPTER J. FUNDAMENTAL BUSINESS TRANSACTIONS
Sec. 21.451. DEFINITIONS Sec. 21.452. APPROVAL OF MERGER Sec. 21.453. APPROVAL OF CONVERSION Sec. 21.454. APPROVAL OF EXCHANGE Sec. 21.455. APPROVAL OF SALE OF ALL OR SUBSTANTIALLY ALL OF ASSETS Sec. 21.456. GENERAL PROCEDURE FOR SUBMISSION TO SHAREHOLDERS OF FUNDAMENTAL BUSINESS TRANSACTION Sec. 21.457. GENERAL VOTE REQUIREMENT FOR APPROVAL OF FUNDAMENTAL BUSINESS TRANSACTION Sec. 21.458. CLASS VOTING REQUIREMENTS FOR CERTAIN FUNDAMENTAL BUSINESS TRANSACTIONS Sec. 21.459. NO SHAREHOLDER VOTE REQUIREMENT FOR CERTAIN FUNDAMENTAL BUSINESS TRANSACTIONS Sec. 21.460. RIGHTS OF DISSENT AND APPRAISAL Sec. 21.461. PLEDGE, MORTGAGE, DEED OF TRUST, OR TRUST INDENTURE Sec. 21.462. CONVEYANCE BY CORPORATION
[Sections 21.463-21.500 reserved for expansion]
SUBCHAPTER K. WINDING UP AND TERMINATION
Sec. 21.501. APPROVAL OF VOLUNTARY WINDING UP, REINSTATEMENT, OR REVOCATION OF VOLUNTARY WINDING UP Sec. 21.502. CERTAIN PROCEDURES RELATING TO WINDING UP Sec. 21.503. MEETING OF SHAREHOLDERS; NOTICE Sec. 21.504. RESPONSIBILITY FOR WINDING UP
[Sections 21.505-21.550 reserved for expansion]
SUBCHAPTER L. DERIVATIVE PROCEEDINGS
Sec. 21.551. DEFINITIONS Sec. 21.552. STANDING TO BRING PROCEEDING Sec. 21.553. DEMAND Sec. 21.554. DETERMINATION BY DIRECTORS OR INDEPENDENT PERSONS Sec. 21.555. STAY OF PROCEEDING Sec. 21.556. DISCOVERY Sec. 21.557. TOLLING OF STATUTE OF LIMITATIONS Sec. 21.558. DISMISSAL OF DERIVATIVE PROCEEDING Sec. 21.559. PROCEEDING INSTITUTED AFTER DEMAND REJECTED Sec. 21.560. DISCONTINUANCE OR SETTLEMENT Sec. 21.561. PAYMENT OF EXPENSES Sec. 21.562. APPLICATION TO FOREIGN CORPORATIONS Sec. 21.563. CLOSELY HELD CORPORATION
[Sections 21.564-21.600 reserved for expansion]
SUBCHAPTER M. AFFILIATED BUSINESS COMBINATIONS
Sec. 21.601. DEFINITIONS Sec. 21.602. AFFILIATED SHAREHOLDER Sec. 21.603. BENEFICIAL OWNER OF SHARES OR SIMILAR SECURITIES Sec. 21.604. BUSINESS COMBINATION Sec. 21.605. CONTROL Sec. 21.606. THREE-YEAR MORATORIUM ON CERTAIN BUSINESS COMBINATIONS Sec. 21.607. APPLICATION OF MORATORIUM Sec. 21.608. EFFECT ON OTHER ACTIONS Sec. 21.609. CONFLICTING PROVISIONS Sec. 21.610. CHANGE IN VOTING REQUIREMENTS
[Sections 21.611-21.650 reserved for expansion]
SUBCHAPTER N. PROVISIONS RELATING TO INVESTMENT COMPANIES
Sec. 21.651. DEFINITION Sec. 21.652. ESTABLISHING CLASS OR SERIES OF SHARES; CHANGE IN NUMBER OF SHARES Sec. 21.653. REQUIRED STATEMENT RELATING TO SHARES Sec. 21.654. TERM OF OFFICE OF DIRECTORS Sec. 21.655. MEETINGS OF SHAREHOLDERS
[Sections 21.656-21.700 reserved for expansion]
SUBCHAPTER O. CLOSE CORPORATION
Sec. 21.701. DEFINITIONS Sec. 21.702. APPLICABILITY OF SUBCHAPTER Sec. 21.703. FORMATION OF CLOSE CORPORATION Sec. 21.704. BYLAWS OF CLOSE CORPORATION Sec. 21.705. ADOPTION OF AMENDMENT FOR CLOSE CORPORATION STATUS Sec. 21.706. ADOPTION OF CLOSE CORPORATION STATUS THROUGH MERGER, EXCHANGE, OR CONVERSION Sec. 21.707. EXISTING CLOSE CORPORATION Sec. 21.708. TERMINATION OF CLOSE CORPORATION STATUS Sec. 21.709. STATEMENT TERMINATING CLOSE CORPORATION STATUS; FILING; NOTICE Sec. 21.710. EFFECT OF TERMINATION OF CLOSE CORPORATION STATUS Sec. 21.711. SHAREHOLDERS' MEETING TO ELECT DIRECTORS Sec. 21.712. TERM OF OFFICE OF DIRECTORS Sec. 21.713. MANAGEMENT Sec. 21.714. SHAREHOLDERS' AGREEMENT Sec. 21.715. EXECUTION OF SHAREHOLDERS' AGREEMENT Sec. 21.716. ADOPTION OF AMENDMENT OF SHAREHOLDERS' AGREEMENT Sec. 21.717. DELIVERY OF SHAREHOLDERS' AGREEMENT Sec. 21.718. STATEMENT OF OPERATION AS CLOSE CORPORATION Sec. 21.719. VALIDITY AND ENFORCEABILITY OF SHAREHOLDERS' AGREEMENT Sec. 21.720. PERSONS BOUND BY SHAREHOLDERS' AGREEMENT Sec. 21.721. DELIVERY OF COPY OF SHAREHOLDERS' AGREEMENT TO TRANSFEREE Sec. 21.722. EFFECT OF REQUIRED STATEMENT ON SHARE CERTIFICATE AND DELIVERY OF SHAREHOLDERS' AGREEMENT Sec. 21.723. PARTY NOT BOUND BY SHAREHOLDERS' AGREEMENT ON CESSATION; LIABILITY Sec. 21.724. TERMINATION OF SHAREHOLDERS' AGREEMENT Sec. 21.725. CONSEQUENCES OF MANAGEMENT BY PERSONS OTHER THAN BOARD OF DIRECTORS Sec. 21.726. SHAREHOLDERS CONSIDERED DIRECTORS Sec. 21.727. LIABILITY OF SHAREHOLDERS Sec. 21.728. MODE AND EFFECT OF TAKING ACTION BY SHAREHOLDERS AND OTHERS Sec. 21.729. LIMITATION OF SHAREHOLDER'S LIABILITY Sec. 21.730. LACK OF FORMALITIES; TREATMENT AS PARTNERSHIP Sec. 21.731. OTHER AGREEMENTS AMONG SHAREHOLDERS PERMITTED Sec. 21.732. CLOSE CORPORATION SHARE CERTIFICATES
[Sections 21.733-21.750 reserved for expansion]
SUBCHAPTER P. JUDICIAL PROCEEDINGS RELATING TO
CLOSE CORPORATION
Sec. 21.751. DEFINITIONS Sec. 21.752. PROCEEDINGS AUTHORIZED Sec. 21.753. NOTICE; INTERVENTION Sec. 21.754. PROCEEDING NONEXCLUSIVE Sec. 21.755. UNAVAILABILITY OF JUDICIAL PROCEEDING Sec. 21.756. JUDICIAL PROCEEDING TO ENFORCE CLOSE CORPORATION PROVISION Sec. 21.757. LIQUIDATION; INVOLUNTARY WINDING UP AND TERMINATION; RECEIVERSHIP Sec. 21.758. APPOINTMENT OF PROVISIONAL DIRECTOR Sec. 21.759. RIGHTS AND POWERS OF PROVISIONAL DIRECTOR Sec. 21.760. COMPENSATION OF PROVISIONAL DIRECTOR Sec. 21.761. APPOINTMENT OF CUSTODIAN Sec. 21.762. POWERS AND DUTIES OF CUSTODIAN Sec. 21.763. TERMINATION OF CUSTODIANSHIP
[Sections 21.764-21.800 reserved for expansion]
SUBCHAPTER Q. MISCELLANEOUS PROVISIONS
Sec. 21.801. SHARES AND OTHER SECURITIES ARE PERSONAL PROPERTY Sec. 21.802. PENALTIES FOR LATE FILING OF CERTAIN INSTRUMENTS
CHAPTER 22. NONPROFIT CORPORATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 22.001. DEFINITIONS Sec. 22.002. MEETINGS BY REMOTE COMMUNICATIONS TECHNOLOGY
[Sections 22.003-22.050 reserved for expansion]
SUBCHAPTER B. PURPOSES AND POWERS
Sec. 22.051. GENERAL PURPOSES Sec. 22.052. DENTAL HEALTH SERVICE CORPORATION Sec. 22.053. DIVIDENDS PROHIBITED Sec. 22.054. AUTHORIZED BENEFITS AND DISTRIBUTIONS Sec. 22.055. POWER TO ASSIST EMPLOYEE OR OFFICER Sec. 22.056. HEALTH ORGANIZATION CORPORATION
[Sections 22.057-22.100 reserved for expansion]
SUBCHAPTER C. FORMATION AND GOVERNING DOCUMENTS
Sec. 22.101. INCORPORATION OF CERTAIN ORGANIZATIONS Sec. 22.102. BYLAWS Sec. 22.103. INCONSISTENCY BETWEEN CERTIFICATE OF FORMATION AND BYLAW Sec. 22.104. ORGANIZATION MEETING Sec. 22.105. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF FORMATION BY MEMBERS HAVING VOTING RIGHTS Sec. 22.106. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF FORMATION BY MANAGING MEMBERS Sec. 22.107. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF FORMATION BY BOARD OF DIRECTORS Sec. 22.108. NUMBER OF AMENDMENTS SUBJECT TO VOTE AT MEETING
[Sections 22.109-22.150 reserved for expansion]
SUBCHAPTER D. MEMBERS
Sec. 22.151. MEMBERS Sec. 22.152. IMMUNITY FROM LIABILITY Sec. 22.153. ANNUAL MEETING Sec. 22.154. FAILURE TO CALL ANNUAL MEETING Sec. 22.155. SPECIAL MEETINGS OF MEMBERS Sec. 22.156. NOTICE OF MEETING Sec. 22.157. SPECIAL BYLAWS AFFECTING NOTICE Sec. 22.158. PREPARATION AND INSPECTION OF LIST OF VOTING MEMBERS Sec. 22.159. QUORUM OF MEMBERS Sec. 22.160. VOTING OF MEMBERS Sec. 22.161. ELECTION OF DIRECTORS Sec. 22.162. GREATER VOTING REQUIREMENTS UNDER CERTIFICATE OF FORMATION Sec. 22.163. RECORD DATE FOR DETERMINATION OF MEMBERS Sec. 22.164. VOTE REQUIRED TO APPROVE FUNDAMENTAL ACTION
[Sections 22.165-22.200 reserved for expansion]
SUBCHAPTER E. MANAGEMENT
Sec. 22.201. MANAGEMENT BY BOARD OF DIRECTORS Sec. 22.202. MANAGEMENT BY MEMBERS Sec. 22.203. BOARD MEMBER ELIGIBILITY REQUIREMENTS Sec. 22.204. NUMBER OF DIRECTORS Sec. 22.205. DESIGNATION OF INITIAL BOARD OF DIRECTORS Sec. 22.206. ELECTION OR APPOINTMENT OF BOARD OF DIRECTORS Sec. 22.207. ELECTION AND CONTROL BY CERTAIN ENTITIES Sec. 22.208. TERM OF OFFICE Sec. 22.209. CLASSIFICATION OF DIRECTORS Sec. 22.210. EX OFFICIO MEMBER OF BOARD Sec. 22.211. REMOVAL OF DIRECTOR Sec. 22.212. VACANCY Sec. 22.213. QUORUM Sec. 22.214. ACTION BY DIRECTORS Sec. 22.215. VOTING IN PERSON OR BY PROXY Sec. 22.216. TERM AND REVOCABILITY OF PROXY Sec. 22.217. NOTICE OF MEETING; WAIVER OF NOTICE Sec. 22.218. MANAGEMENT COMMITTEE Sec. 22.219. OTHER COMMITTEES Sec. 22.220. ACTION WITHOUT MEETING OF DIRECTORS OR COMMITTEE Sec. 22.221. GENERAL STANDARDS FOR DIRECTORS Sec. 22.222. RELIGIOUS CORPORATION DIRECTOR'S GOOD FAITH RELIANCE ON CERTAIN INFORMATION Sec. 22.223. NOT A TRUSTEE Sec. 22.224. DELEGATION OF INVESTMENT AUTHORITY Sec. 22.225. LOAN TO DIRECTOR PROHIBITED Sec. 22.226. DIRECTOR LIABILITY FOR CERTAIN DISTRIBUTIONS OF ASSETS Sec. 22.227. DISSENT TO ACTION Sec. 22.228. RELIANCE ON WRITTEN OPINION OF ATTORNEY Sec. 22.229. RIGHT TO CONTRIBUTION Sec. 22.230. CONTRACTS OR TRANSACTIONS INVOLVING INTERESTED DIRECTORS, OFFICERS, AND MEMBERS Sec. 22.231. OFFICERS Sec. 22.232. ELECTION OR APPOINTMENT OF OFFICERS Sec. 22.233. APPLICATION TO CHURCH Sec. 22.234. RELIGIOUS CORPORATION OFFICER'S GOOD FAITH RELIANCE ON CERTAIN INFORMATION Sec. 22.235. OFFICER LIABILITY
[Sections 22.236-22.250 reserved for expansion]
SUBCHAPTER F. FUNDAMENTAL BUSINESS TRANSACTIONS
Sec. 22.251. APPROVAL OF MERGER Sec. 22.252. APPROVAL OF SALE OF ALL OR SUBSTANTIALLY ALL OF ASSETS Sec. 22.253. MEETING OF MEMBERS; NOTICE Sec. 22.254. PLEDGE, MORTGAGE, DEED OF TRUST, OR TRUST INDENTURE Sec. 22.255. CONVEYANCE BY CORPORATION Sec. 22.256. APPROVAL OF CONVERSION Sec. 22.257. APPROVAL OF EXCHANGE
[Sections 22.258-22.300 reserved for expansion]
SUBCHAPTER G. WINDING UP AND TERMINATION
Sec. 22.301. APPROVAL OF VOLUNTARY WINDING UP, REINSTATEMENT, REVOCATION OF VOLUNTARY WINDING UP, OR DISTRIBUTION PLAN Sec. 22.302. CERTAIN PROCEDURES FOR APPROVAL Sec. 22.303. MEETING OF MEMBERS; NOTICE Sec. 22.304. APPLICATION AND DISTRIBUTION OF PROPERTY Sec. 22.305. DISTRIBUTION PLAN Sec. 22.306. LIMITED SURVIVAL AFTER NATURAL EXPIRATION Sec. 22.307. RESPONSIBILITY FOR WINDING UP
[Sections 22.308-22.350 reserved for expansion]
SUBCHAPTER H. RECORDS AND REPORTS
Sec. 22.351. MEMBER'S RIGHT TO INSPECT BOOKS AND RECORDS Sec. 22.352. FINANCIAL RECORDS AND ANNUAL REPORTS Sec. 22.353. AVAILABILITY OF FINANCIAL INFORMATION FOR PUBLIC INSPECTION Sec. 22.354. FAILURE TO MAINTAIN FINANCIAL RECORD OR PREPARE ANNUAL REPORT; OFFENSE Sec. 22.355. EXEMPTIONS FROM CERTAIN REQUIREMENTS RELATING TO FINANCIAL RECORDS AND ANNUAL REPORTS Sec. 22.356. CORPORATIONS ASSISTING STATE AGENCIES Sec. 22.357. REPORT OF DOMESTIC AND FOREIGN CORPORATIONS Sec. 22.358. NOTICE REGARDING REPORT Sec. 22.359. FILING OF REPORT Sec. 22.360. FAILURE TO FILE REPORT Sec. 22.361. NOTICE OF FORFEITURE Sec. 22.362. EFFECT OF FORFEITURE Sec. 22.363. REVIVAL OF RIGHT TO CONDUCT AFFAIRS Sec. 22.364. FAILURE TO REVIVE; TERMINATION OR REVOCATION Sec. 22.365. REINSTATEMENT
[Sections 22.366-22.400 reserved for expansion]
SUBCHAPTER I. CHURCH BENEFITS BOARDS
Sec. 22.401. DEFINITION Sec. 22.402. PENSIONS AND BENEFITS Sec. 22.403. CONTRIBUTIONS Sec. 22.404. POWER TO ACT AS TRUSTEE Sec. 22.405. DOCUMENTS AND AGREEMENTS Sec. 22.406. INDEMNIFICATION Sec. 22.407. PROTECTION OF BENEFITS Sec. 22.408. ASSIGNMENT OF BENEFITS Sec. 22.409. INSURANCE CODE NOT APPLICABLE
CHAPTER 23. SPECIAL-PURPOSE CORPORATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 23.001. DETERMINATION OF APPLICABLE LAW Sec. 23.002. APPLICABILITY OF FILING REQUIREMENTS Sec. 23.003. DOMESTIC CORPORATION ORGANIZED UNDER SPECIAL STATUTE
[Sections 23.004-23.050 reserved for expansion]
SUBCHAPTER B. BUSINESS DEVELOPMENT CORPORATIONS
Sec. 23.051. DEFINITIONS Sec. 23.052. ORGANIZERS Sec. 23.053. PURPOSES Sec. 23.054. POWERS Sec. 23.055. STATEWIDE OPERATION Sec. 23.056. CERTIFICATE OF FORMATION Sec. 23.057. MANAGEMENT BY BOARD OF DIRECTORS; NUMBER OF DIRECTORS Sec. 23.058. ELECTION OR APPOINTMENT OF DIRECTORS Sec. 23.059. TERM OF OFFICE; VACANCY Sec. 23.060. OFFICERS Sec. 23.061. PARTICIPATION AS OWNER Sec. 23.062. FINANCIAL INSTITUTION AS MEMBER OF CORPORATION Sec. 23.063. WITHDRAWAL OF MEMBER Sec. 23.064. POWERS OF SHAREHOLDERS AND MEMBERS Sec. 23.065. VOTING BY SHAREHOLDER OR MEMBER Sec. 23.066. LOAN TO CORPORATION Sec. 23.067. PROHIBITED LOAN Sec. 23.068. LOAN LIMITS Sec. 23.069. SURPLUS Sec. 23.070. DEPOSITORY Sec. 23.071. ANNUAL REPORT; PROVISION OF REQUIRED INFORMATION
[Sections 23.072-23.100 reserved for expansion]
SUBCHAPTER C. GRAND LODGES
Sec. 23.101. FORMATION Sec. 23.102. APPLICABILITY OF CHAPTER 22 Sec. 23.103. DURATION Sec. 23.104. SUBORDINATE LODGES Sec. 23.105. TRUSTEES AND DIRECTORS Sec. 23.106. FRANCHISE TAXES Sec. 23.107. GENERAL POWERS Sec. 23.108. AUTHORITY REGARDING PROPERTY Sec. 23.109. AUTHORITY REGARDING LOANS Sec. 23.110. WINDING UP AND TERMINATION OF SUBORDINATE BODY
TITLE 3. LIMITED LIABILITY COMPANIES
CHAPTER 101. LIMITED LIABILITY COMPANIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 101.001. DEFINITIONS
[Sections 101.002-101.050 reserved for expansion]
SUBCHAPTER B. FORMATION AND GOVERNING DOCUMENTS
Sec. 101.051. CERTAIN PROVISIONS CONTAINED IN CERTIFICATE OF FORMATION Sec. 101.052. COMPANY AGREEMENT Sec. 101.053. AMENDMENT OF COMPANY AGREEMENT Sec. 101.054. WAIVER OR MODIFICATION OF CERTAIN STATUTORY PROVISIONS PROHIBITED; EXCEPTIONS
[Sections 101.055-101.100 reserved for expansion]
SUBCHAPTER C. MEMBERSHIP
Sec. 101.101. MEMBERS REQUIRED Sec. 101.102. QUALIFICATION FOR MEMBERSHIP Sec. 101.103. EFFECTIVE DATE OF MEMBERSHIP Sec. 101.104. CLASSES OR GROUPS OF MEMBERS OR MEMBERSHIP INTERESTS Sec. 101.105. ISSUANCE OF MEMBERSHIP INTERESTS AFTER FORMATION OF COMPANY Sec. 101.106. NATURE OF MEMBERSHIP INTEREST Sec. 101.107. WITHDRAWAL OR EXPULSION OF MEMBER PROHIBITED Sec. 101.108. ASSIGNMENT OF MEMBERSHIP INTEREST Sec. 101.109. RIGHTS AND DUTIES OF ASSIGNEE OF MEMBERSHIP INTEREST BEFORE MEMBERSHIP Sec. 101.110. RIGHTS AND LIABILITIES OF ASSIGNEE OF MEMBERSHIP INTEREST AFTER BECOMING MEMBER Sec. 101.111. RIGHTS AND DUTIES OF ASSIGNOR OF MEMBERSHIP INTEREST Sec. 101.112. JUDGMENT CREDITOR; CHARGE OF MEMBERSHIP INTEREST Sec. 101.113. PARTIES TO ACTIONS Sec. 101.114. LIABILITY FOR OBLIGATIONS
[Sections 101.115-101.150 reserved for expansion]
SUBCHAPTER D. CONTRIBUTIONS
Sec. 101.151. REQUIREMENTS FOR ENFORCEABLE PROMISE Sec. 101.152. ENFORCEABLE PROMISE NOT AFFECTED BY CHANGE IN CIRCUMSTANCES Sec. 101.153. FAILURE TO PERFORM ENFORCEABLE PROMISE; CONSEQUENCES Sec. 101.154. CONSENT REQUIRED TO RELEASE ENFORCEABLE OBLIGATION Sec. 101.155. CREDITOR'S RIGHT TO ENFORCE CERTAIN OBLIGATIONS Sec. 101.156. REQUIREMENTS TO ENFORCE CONDITIONAL OBLIGATION
[Sections 101.157-101.200 reserved for expansion]
SUBCHAPTER E. ALLOCATIONS AND DISTRIBUTIONS
Sec. 101.201. ALLOCATION OF PROFITS AND LOSSES Sec. 101.202. DISTRIBUTION IN KIND Sec. 101.203. SHARING OF DISTRIBUTIONS Sec. 101.204. INTERIM DISTRIBUTIONS Sec. 101.205. DISTRIBUTION ON WITHDRAWAL Sec. 101.206. PROHIBITED DISTRIBUTION; DUTY TO RETURN Sec. 101.207. CREDITOR STATUS WITH RESPECT TO DISTRIBUTION
[Sections 101.208-101.250 reserved for expansion]
SUBCHAPTER F. MANAGEMENT
Sec. 101.251. MEMBERSHIP Sec. 101.252. MANAGEMENT BY GOVERNING AUTHORITY Sec. 101.253. DESIGNATION OF COMMITTEES; DELEGATION OF AUTHORITY Sec. 101.254. DESIGNATION OF AGENTS; BINDING ACTS Sec. 101.255. CONTRACTS OR TRANSACTIONS INVOLVING INTERESTED GOVERNING PERSONS OR OFFICERS
[Sections 101.256-101.300 reserved for expansion]
SUBCHAPTER G. MANAGERS
Sec. 101.301. APPLICABILITY OF SUBCHAPTER Sec. 101.302. NUMBER AND QUALIFICATIONS Sec. 101.303. TERM Sec. 101.304. REMOVAL Sec. 101.305. MANAGER VACANCY Sec. 101.306. REMOVAL AND REPLACEMENT OF MANAGER ELECTED BY CLASS OR GROUP Sec. 101.307. METHODS OF CLASSIFYING MANAGERS
[Sections 101.308-101.350 reserved for expansion]
SUBCHAPTER H. MEETINGS AND VOTING
Sec. 101.351. APPLICABILITY OF SUBCHAPTER Sec. 101.352. GENERAL NOTICE REQUIREMENTS Sec. 101.353. QUORUM Sec. 101.354. EQUAL VOTING RIGHTS Sec. 101.355. ACT OF GOVERNING AUTHORITY, MEMBERS, OR COMMITTEE Sec. 101.356. VOTES REQUIRED TO APPROVE CERTAIN ACTIONS Sec. 101.357. MANNER OF VOTING Sec. 101.358. ACTION BY LESS THAN UNANIMOUS WRITTEN CONSENT
[Sections 101.359-101.400 reserved for expansion]
SUBCHAPTER I. MODIFICATION OF DUTIES; INDEMNIFICATION
Sec. 101.401. EXPANSION OR RESTRICTION OF DUTIES AND LIABILITIES Sec. 101.402. PERMISSIVE INDEMNIFICATION, ADVANCEMENT OF EXPENSES, AND INSURANCE OR OTHER ARRANGEMENTS
[Sections 101.403-101.450 reserved for expansion]
SUBCHAPTER J. DERIVATIVE PROCEEDINGS
Sec. 101.451. DEFINITIONS Sec. 101.452. STANDING TO BRING PROCEEDING Sec. 101.453. DEMAND Sec. 101.454. DETERMINATION BY GOVERNING OR INDEPENDENT PERSONS Sec. 101.455. STAY OF PROCEEDING Sec. 101.456. DISCOVERY Sec. 101.457. TOLLING OF STATUTE OF LIMITATIONS Sec. 101.458. DISMISSAL OF DERIVATIVE PROCEEDING Sec. 101.459. ALLEGATIONS IF DEMAND REJECTED Sec. 101.460. DISCONTINUANCE OR SETTLEMENT Sec. 101.461. PAYMENT OF EXPENSES Sec. 101.462. APPLICATION TO FOREIGN LIMITED LIABILITY COMPANIES Sec. 101.463. CLOSELY HELD LIMITED LIABILITY COMPANY
[Sections 101.464-101.500 reserved for expansion]
SUBCHAPTER K. SUPPLEMENTAL RECORDKEEPING REQUIREMENTS
Sec. 101.501. SUPPLEMENTAL RECORDS REQUIRED FOR LIMITED LIABILITY COMPANIES Sec. 101.502. RIGHT TO EXAMINE RECORDS AND CERTAIN OTHER INFORMATION
[Sections 101.503-101.550 reserved for expansion]
SUBCHAPTER L. SUPPLEMENTAL WINDING UP AND TERMINATION
PROVISIONS
Sec. 101.551. PERSONS ELIGIBLE TO WIND UP COMPANY Sec. 101.552. APPROVAL OF VOLUNTARY WINDING UP, REVOCATION, CANCELLATION, OR REINSTATEMENT
TITLE 4. PARTNERSHIPS
CHAPTER 151. GENERAL PROVISIONS
Sec. 151.001. DEFINITIONS Sec. 151.002. KNOWLEDGE OF FACT Sec. 151.003. NOTICE OF FACT
CHAPTER 152. GENERAL PARTNERSHIPS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 152.001. DEFINITIONS Sec. 152.002. EFFECT OF PARTNERSHIP AGREEMENT; NONWAIVABLE AND VARIABLE PROVISIONS Sec. 152.003. SUPPLEMENTAL PRINCIPLES OF LAW Sec. 152.004. RULE OF STATUTORY CONSTRUCTION NOT APPLICABLE Sec. 152.005. APPLICABLE INTEREST RATE
[Sections 152.006-152.050 reserved for expansion]
SUBCHAPTER B. NATURE AND CREATION OF PARTNERSHIP
Sec. 152.051. PARTNERSHIP DEFINED Sec. 152.052. RULES FOR DETERMINING IF PARTNERSHIP IS CREATED Sec. 152.053. QUALIFICATIONS TO BE PARTNER; NONPARTNER'S LIABILITY TO THIRD PERSON Sec. 152.054. FALSE REPRESENTATION OF PARTNERSHIP OR PARTNER Sec. 152.055. AUTHORITY OF CERTAIN PROFESSIONALS TO CREATE PARTNERSHIP Sec. 152.056. PARTNERSHIP AS ENTITY
[Sections 152.057-152.100 reserved for expansion]
SUBCHAPTER C. PARTNERSHIP PROPERTY
Sec. 152.101. NATURE OF PARTNERSHIP PROPERTY Sec. 152.102. CLASSIFICATION AS PARTNERSHIP PROPERTY
[Sections 152.103-152.200 reserved for expansion]
SUBCHAPTER D. RELATIONSHIP BETWEEN PARTNERS AND BETWEEN
PARTNERS AND PARTNERSHIPS
Sec. 152.201. ADMISSION AS PARTNER Sec. 152.202. CREDITS OF AND CHARGES TO PARTNER Sec. 152.203. RIGHTS AND DUTIES OF PARTNER Sec. 152.204. GENERAL STANDARDS OF PARTNER'S CONDUCT Sec. 152.205. PARTNER'S DUTY OF LOYALTY Sec. 152.206. PARTNER'S DUTY OF CARE Sec. 152.207. STANDARDS OF CONDUCT APPLICABLE TO PERSON WINDING UP PARTNERSHIP BUSINESS Sec. 152.208. AMENDMENT TO PARTNERSHIP AGREEMENT Sec. 152.209. DECISION-MAKING REQUIREMENT Sec. 152.210. PARTNER'S LIABILITY TO PARTNERSHIP AND OTHER PARTNERS Sec. 152.211. REMEDIES OF PARTNERSHIP AND PARTNERS Sec. 152.212. BOOKS AND RECORDS OF PARTNERSHIP Sec. 152.213. INFORMATION REGARDING PARTNERSHIP Sec. 152.214. CERTAIN THIRD-PARTY OBLIGATIONS NOT AFFECTED
[Sections 152.215-152.300 reserved for expansion]
SUBCHAPTER E. RELATIONSHIP BETWEEN PARTNERS AND OTHER PERSONS
Sec. 152.301. PARTNER AS AGENT Sec. 152.302. BINDING EFFECT OF PARTNER'S ACTION Sec. 152.303. LIABILITY OF PARTNERSHIP FOR CONDUCT OF PARTNER Sec. 152.304. NATURE OF PARTNER'S LIABILITY Sec. 152.305. REMEDY Sec. 152.306. ENFORCEMENT OF REMEDY Sec. 152.307. EXTENSION OF CREDIT IN RELIANCE ON FALSE REPRESENTATION
[Sections 152.308-152.400 reserved for expansion]
SUBCHAPTER F. TRANSFER OF PARTNERSHIP INTERESTS
Sec. 152.401. TRANSFER OF PARTNERSHIP INTEREST Sec. 152.402. GENERAL EFFECT OF TRANSFER Sec. 152.403. EFFECT OF TRANSFER ON TRANSFEROR Sec. 152.404. RIGHTS AND DUTIES OF TRANSFEREE Sec. 152.405. POWER TO EFFECT TRANSFER OR GRANT OF SECURITY INTEREST Sec. 152.406. EFFECT OF DEATH OR DIVORCE ON PARTNERSHIP INTEREST
[Sections 152.407-152.500 reserved for expansion]
SUBCHAPTER G. WITHDRAWAL OF PARTNER
Sec. 152.501. EVENTS OF WITHDRAWAL Sec. 152.502. EFFECT OF EVENT OF WITHDRAWAL ON PARTNERSHIP AND OTHER PARTNERS Sec. 152.503. WRONGFUL WITHDRAWAL; LIABILITY Sec. 152.504. WITHDRAWN PARTNER'S POWER TO BIND PARTNERSHIP Sec. 152.505. EFFECT OF WITHDRAWAL ON PARTNER'S EXISTING LIABILITY Sec. 152.506. LIABILITY OF WITHDRAWN PARTNER TO THIRD PARTY
[Sections 152.507-152.600 reserved for expansion]
SUBCHAPTER H. REDEMPTION OF WITHDRAWING PARTNER'S OR
TRANSFEREE'S INTEREST
Sec. 152.601. REDEMPTION IF PARTNERSHIP NOT WOUND UP Sec. 152.602. REDEMPTION PRICE Sec. 152.603. CONTRIBUTION OBLIGATION Sec. 152.604. SETOFF FOR CERTAIN DAMAGES Sec. 152.605. ACCRUAL OF INTEREST Sec. 152.606. INDEMNIFICATION FOR CERTAIN LIABILITY Sec. 152.607. DEMAND OR PAYMENT OF ESTIMATED REDEMPTION Sec. 152.608. DEFERRED PAYMENT ON WRONGFUL WITHDRAWAL Sec. 152.609. ACTION TO DETERMINE TERMS OF REDEMPTION Sec. 152.610. DEFERRED PAYMENT ON WINDING UP PARTNERSHIP Sec. 152.611. REDEMPTION OF TRANSFEREE'S PARTNERSHIP INTEREST Sec. 152.612. ACTION TO DETERMINE TRANSFEREE'S REDEMPTION PRICE
[Sections 152.613-152.700 reserved for expansion]
SUBCHAPTER I. SUPPLEMENTAL WINDING UP AND
TERMINATION PROVISIONS
Sec. 152.701. EFFECT OF EVENT REQUIRING WINDING UP Sec. 152.702. PERSONS ELIGIBLE TO WIND UP PARTNERSHIP BUSINESS Sec. 152.703. RIGHTS AND DUTIES OF PERSON WINDING UP PARTNERSHIP BUSINESS Sec. 152.704. BINDING EFFECT OF PARTNER'S ACTION AFTER EVENT REQUIRING WINDING UP Sec. 152.705. PARTNER'S LIABILITY TO OTHER PARTNERS AFTER EVENT REQUIRING WINDING UP Sec. 152.706. DISPOSITION OF ASSETS Sec. 152.707. SETTLEMENT OF ACCOUNTS Sec. 152.708. CONTRIBUTIONS TO DISCHARGE OBLIGATIONS Sec. 152.709. CONTINUATION OF PARTNERSHIP Sec. 152.710. REINSTATEMENT
[Sections 152.711-152.800 reserved for expansion]
SUBCHAPTER J. LIMITED LIABILITY PARTNERSHIPS
Sec. 152.801. LIABILITY OF PARTNER Sec. 152.802. REGISTRATION Sec. 152.803. NAME Sec. 152.804. INSURANCE OR FINANCIAL RESPONSIBILITY Sec. 152.805. LIMITED PARTNERSHIP
[Sections 152.806-152.900 reserved for expansion]
SUBCHAPTER K. FOREIGN LIMITED LIABILITY PARTNERSHIPS
Sec. 152.901. GENERAL Sec. 152.902. NAME Sec. 152.903. ACTIVITIES NOT CONSTITUTING TRANSACTING BUSINESS Sec. 152.904. REGISTERED AGENT Sec. 152.905. STATEMENT OF FOREIGN QUALIFICATION Sec. 152.906. CANCELLATION OF REGISTRATION Sec. 152.907. EFFECT OF CERTIFICATE OF CANCELLATION Sec. 152.908. RENEWAL OF REGISTRATION Sec. 152.909. ACTION BY SECRETARY OF STATE Sec. 152.910. EFFECT OF FAILURE TO QUALIFY Sec. 152.911. AMENDMENT Sec. 152.912. EXECUTION OF APPLICATION FOR AMENDMENT Sec. 152.913. EXECUTION OF STATEMENT OF CHANGE OF REGISTERED OFFICE OR REGISTERED AGENT
CHAPTER 153. LIMITED PARTNERSHIPS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 153.001. DEFINITION Sec. 153.002. CONSTRUCTION Sec. 153.003. APPLICABILITY OF OTHER LAWS Sec. 153.004. NONWAIVABLE TITLE 1 PROVISIONS Sec. 153.005. WAIVER OR MODIFICATION OF RIGHTS OF THIRD PARTIES
[Sections 153.006-153.050 reserved for expansion]
SUBCHAPTER B. SUPPLEMENTAL PROVISIONS REGARDING AMENDMENT
TO CERTIFICATE OF FORMATION
Sec. 153.051. REQUIRED AMENDMENT TO CERTIFICATE OF FORMATION Sec. 153.052. DISCRETIONARY AMENDMENT TO CERTIFICATE OF FORMATION
[Sections 153.053-153.100 reserved for expansion]
SUBCHAPTER C. LIMITED PARTNERS
Sec. 153.101. ADMISSION OF LIMITED PARTNERS Sec. 153.102. LIABILITY TO THIRD PARTIES Sec. 153.103. ACTIONS NOT CONSTITUTING PARTICIPATION IN BUSINESS FOR LIABILITY PURPOSES Sec. 153.104. ENUMERATION OF ACTIONS NOT EXCLUSIVE Sec. 153.105. CREATION OF RIGHTS Sec. 153.106. ERRONEOUS BELIEF OF CONTRIBUTOR BEING LIMITED PARTNER Sec. 153.107. STATEMENT REQUIRED FOR LIABILITY PROTECTION Sec. 153.108. REQUIREMENTS FOR LIABILITY PROTECTION FOLLOWING EXPIRATION OF STATEMENT Sec. 153.109. LIABILITY OF ERRONEOUS CONTRIBUTOR Sec. 153.110. WITHDRAWAL OF LIMITED PARTNER Sec. 153.111. DISTRIBUTION ON WITHDRAWAL Sec. 153.112. RECEIPT OF WRONGFUL DISTRIBUTION Sec. 153.113. POWERS OF ESTATE OF LIMITED PARTNER WHO IS DECEASED OR INCAPACITATED
[Sections 153.114-153.150 reserved for expansion]
SUBCHAPTER D. GENERAL PARTNERS
Sec. 153.151. ADMISSION OF ADDITIONAL GENERAL PARTNERS Sec. 153.152. GENERAL POWERS AND LIABILITIES OF GENERAL PARTNER Sec. 153.153. POWERS AND LIABILITIES OF PERSON WHO IS BOTH GENERAL PARTNER AND LIMITED PARTNER Sec. 153.154. CONTRIBUTIONS BY AND DISTRIBUTIONS TO GENERAL PARTNER Sec. 153.155. WITHDRAWAL OF GENERAL PARTNER Sec. 153.156. NOTICE OF EVENT OF WITHDRAWAL Sec. 153.157. WITHDRAWAL OF GENERAL PARTNER IN VIOLATION OF PARTNERSHIP AGREEMENT Sec. 153.158. EFFECT OF WITHDRAWAL Sec. 153.159. CONVERSION OF PARTNERSHIP INTEREST AFTER WITHDRAWAL Sec. 153.160. EFFECT OF CONVERSION OF PARTNERSHIP INTEREST Sec. 153.161. LIABILITY OF GENERAL PARTNER FOR DEBT INCURRED AFTER EVENT OF WITHDRAWAL Sec. 153.162. LIABILITY FOR WRONGFUL WITHDRAWAL
[Sections 153.163-153.200 reserved for expansion]
SUBCHAPTER E. FINANCES
Sec. 153.201. FORM OF CONTRIBUTION Sec. 153.202. ENFORCEABILITY OF PROMISE TO MAKE CONTRIBUTION Sec. 153.203. RELEASE OF OBLIGATION TO PARTNERSHIP Sec. 153.204. ENFORCEABILITY OF OBLIGATION Sec. 153.205. REQUIREMENTS TO ENFORCE CONDITIONAL OBLIGATION Sec. 153.206. ALLOCATION OF PROFITS AND LOSSES Sec. 153.207. RIGHT TO DISTRIBUTION Sec. 153.208. SHARING OF DISTRIBUTIONS Sec. 153.209. INTERIM DISTRIBUTIONS Sec. 153.210. LIMITATION ON DISTRIBUTION
[Sections 153.211-153.250 reserved for expansion]
SUBCHAPTER F. PARTNERSHIP INTEREST
Sec. 153.251. ASSIGNMENT OF PARTNERSHIP INTEREST Sec. 153.252. RIGHTS OF ASSIGNOR Sec. 153.253. RIGHTS OF ASSIGNEE Sec. 153.254. LIABILITY OF ASSIGNEE Sec. 153.255. LIABILITY OF ASSIGNOR Sec. 153.256. CHARGE IN PAYMENT OF JUDGMENT CREDITOR Sec. 153.257. EXEMPTION LAWS APPLICABLE TO PARTNERSHIP INTEREST NOT AFFECTED
[Sections 153.258-153.300 reserved for expansion]
SUBCHAPTER G. REPORTS
Sec. 153.301. PERIODIC REPORT Sec. 153.302. FORM AND CONTENTS OF REPORT Sec. 153.303. FILING FEE Sec. 153.304. DELIVERY OF REPORT Sec. 153.305. ACTION BY SECRETARY OF STATE Sec. 153.306. EFFECT OF FILING REPORT Sec. 153.307. EFFECT OF FAILURE TO FILE REPORT Sec. 153.308. NOTICE OF FORFEITURE OF RIGHT TO TRANSACT BUSINESS Sec. 153.309. EFFECT OF FORFEITURE OF RIGHT TO TRANSACT BUSINESS Sec. 153.310. REVIVAL OF RIGHT TO TRANSACT BUSINESS Sec. 153.311. CANCELLATION OF CERTIFICATE OR REGISTRATION AFTER FORFEITURE Sec. 153.312. REINSTATEMENT OF CERTIFICATE OF FORMATION OR REGISTRATION
[Sections 153.313-153.350 reserved for expansion]
SUBCHAPTER H. LIMITED PARTNERSHIP AS LIMITED
LIABILITY PARTNERSHIP
Sec. 153.351. REQUIREMENTS Sec. 153.352. APPLICABILITY OF OTHER REQUIREMENTS Sec. 153.353. LAW APPLICABLE TO PARTNERS
[Sections 153.354-153.400 reserved for expansion]
SUBCHAPTER I. DERIVATIVE ACTIONS
Sec. 153.401. RIGHT TO BRING ACTION Sec. 153.402. PROPER PLAINTIFF Sec. 153.403. PLEADING Sec. 153.404. SECURITY FOR EXPENSES OF DEFENDANTS Sec. 153.405. EXPENSES OF PLAINTIFF
[Sections 153.406-153.450 reserved for expansion]
SUBCHAPTER J. CANCELLATION OF CERTIFICATE OF FORMATION
Sec. 153.451. CERTIFICATE OF CANCELLATION Sec. 153.452. CONTENTS OF CERTIFICATE OF CANCELLATION
[Sections 153.453-153.500 reserved for expansion]
SUBCHAPTER K. SUPPLEMENTAL WINDING UP AND TERMINATION
PROVISIONS
Sec. 153.501. CONTINUATION WITHOUT WINDING UP Sec. 153.502. WINDING UP PROCEDURES Sec. 153.503. POWERS OF PERSON CONDUCTING WIND UP Sec. 153.504. DISPOSITION OF ASSETS
[Sections 153.505-153.550 reserved for expansion]
SUBCHAPTER L. MISCELLANEOUS PROVISIONS
Sec. 153.551. RECORDS Sec. 153.552. EXAMINATION OF RECORDS AND INFORMATION Sec. 153.553. EXECUTION OF CERTAIN FILINGS Sec. 153.554. EXECUTION, AMENDMENT, OR CANCELLATION BY JUDICIAL ORDER Sec. 153.555. PERMITTED TRANSFER IN CONNECTION WITH RACETRACK LICENSE
CHAPTER 154. PROVISIONS APPLICABLE TO BOTH
GENERAL AND LIMITED PARTNERSHIPS
SUBCHAPTER A. PARTNERSHIP INTERESTS
Sec. 154.001. NATURE OF PARTNER'S PARTNERSHIP INTEREST Sec. 154.002. TRANSFER OF INTEREST IN PARTNERSHIP PROPERTY PROHIBITED
[Sections 154.003-154.100 reserved for expansion]
SUBCHAPTER B. PARTNERSHIP AGREEMENT
Sec. 154.101. CLASS OR GROUP OF PARTNERS Sec. 154.102. PROVISIONS RELATING TO VOTING Sec. 154.103. NOTICE OF ACTION BY CONSENT WITHOUT A MEETING
[Sections 154.104-154.200 reserved for expansion]
SUBCHAPTER C. PARTNERSHIP TRANSACTIONS AND RELATIONSHIPS
Sec. 154.201. BUSINESS TRANSACTIONS BETWEEN PARTNER AND PARTNERSHIP Sec. 154.202. EFFECT OF PARTNER CHANGE ON RELATIONSHIP BETWEEN PARTNERSHIP AND CREDITORS Sec. 154.203. DISTRIBUTIONS IN KIND
TITLE 5. REAL ESTATE INVESTMENT TRUSTS
CHAPTER 200. REAL ESTATE INVESTMENT TRUSTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 200.001. DEFINITION Sec. 200.002. APPLICABILITY OF CHAPTER Sec. 200.003. CONFLICT WITH OTHER LAW Sec. 200.004. ULTRA VIRES ACTS Sec. 200.005. SUPPLEMENTARY POWERS OF REAL ESTATE INVESTMENT TRUST Sec. 200.006. REQUIREMENT THAT FILING INSTRUMENT BE SIGNED BY OFFICER
[Sections 200.007-200.050 reserved for expansion]
SUBCHAPTER B. FORMATION AND GOVERNING DOCUMENTS
Sec. 200.051. DECLARATION OF TRUST Sec. 200.052. NO PROPERTY RIGHT IN CERTIFICATE OF FORMATION Sec. 200.053. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF FORMATION Sec. 200.054. ADOPTION OF AMENDMENT BY TRUST MANAGERS Sec. 200.055. ADOPTION OF AMENDMENT BY SHAREHOLDERS Sec. 200.056. NOTICE OF AND MEETING TO CONSIDER PROPOSED AMENDMENT Sec. 200.057. ADOPTION OF RESTATED CERTIFICATE OF FORMATION Sec. 200.058. BYLAWS Sec. 200.059. DUAL AUTHORITY Sec. 200.060. ORGANIZATION MEETING
[Sections 200.061-200.100 reserved for expansion]
SUBCHAPTER C. SHARES
Sec. 200.101. NUMBER Sec. 200.102. CLASSIFICATION OF SHARES Sec. 200.103. CLASSES OF SHARES ESTABLISHED BY TRUST MANAGERS Sec. 200.104. ISSUANCE OF SHARES Sec. 200.105. TYPES OF CONSIDERATION FOR ISSUANCE OF SHARES Sec. 200.106. DETERMINATION OF CONSIDERATION FOR SHARES Sec. 200.107. AMOUNT OF CONSIDERATION FOR ISSUANCE OF SHARES WITH PAR VALUE Sec. 200.108. VALUE OF CONSIDERATION Sec. 200.109. LIABILITY OF ASSIGNEE OR TRANSFEREE Sec. 200.110. SUBSCRIPTIONS Sec. 200.111. PREFORMATION SUBSCRIPTION Sec. 200.112. COMMITMENT IN CONNECTION WITH PURCHASE OF SHARES Sec. 200.113. SUPPLEMENTAL REQUIRED RECORDS
[Sections 200.114-200.150 reserved for expansion]
SUBCHAPTER D. SHAREHOLDER RIGHTS AND RESTRICTIONS
Sec. 200.151. REGISTERED HOLDERS AS OWNERS Sec. 200.152. NO STATUTORY PREEMPTIVE RIGHT UNLESS SPECIFICALLY PROVIDED BY CERTIFICATE OF FORMATION Sec. 200.153. CHARACTERIZATION AND TRANSFER OF SHARES AND OTHER SECURITIES Sec. 200.154. RESTRICTION ON TRANSFER OF SHARES AND OTHER SECURITIES Sec. 200.155. VALID RESTRICTION ON TRANSFER Sec. 200.156. BYLAW OR AGREEMENT RESTRICTING TRANSFER OF SHARES OR OTHER SECURITIES Sec. 200.157. ENFORCEABILITY OF RESTRICTION ON TRANSFER OF CERTAIN SECURITIES Sec. 200.158. JOINT OWNERSHIP OF SHARES Sec. 200.159. LIABILITY FOR DESIGNATING OWNER OF SHARES Sec. 200.160. LIABILITY REGARDING JOINT OWNERSHIP OF SHARES Sec. 200.161. LIMITATION OF LIABILITY FOR OBLIGATIONS Sec. 200.162. PREEMPTION OF LIABILITY Sec. 200.163. EXCEPTIONS TO LIMITATIONS Sec. 200.164. PLEDGEES AND TRUST ADMINISTRATORS
[Sections 200.165-200.200 reserved for expansion]
SUBCHAPTER E. DISTRIBUTIONS AND SHARE DIVIDENDS
Sec. 200.201. AUTHORITY FOR DISTRIBUTIONS Sec. 200.202. LIMITATIONS ON DISTRIBUTIONS Sec. 200.203. PRIORITY OF DISTRIBUTIONS Sec. 200.204. RESERVES, DESIGNATIONS, AND ALLOCATIONS FROM SURPLUS Sec. 200.205. AUTHORITY FOR SHARE DIVIDENDS Sec. 200.206. LIMITATIONS ON SHARE DIVIDENDS Sec. 200.207. VALUE OF SHARES ISSUED AS SHARE DIVIDENDS Sec. 200.208. TRANSFER OF SURPLUS FOR SHARE DIVIDENDS Sec. 200.209. DETERMINATION OF SOLVENCY, NET ASSETS, STATED CAPITAL, AND SURPLUS Sec. 200.210. DATE OF DETERMINATION OF SURPLUS Sec. 200.211. SPLIT-UP OR DIVISION OF SHARES
[Sections 200.212-200.250 reserved for expansion]
SUBCHAPTER F. SHAREHOLDERS' MEETINGS; VOTING AND QUORUM
Sec. 200.251. ANNUAL MEETING Sec. 200.252. SPECIAL MEETINGS Sec. 200.253. NOTICE OF MEETING Sec. 200.254. CLOSING OF SHARE TRANSFER RECORDS Sec. 200.255. RECORD DATE FOR WRITTEN CONSENT TO ACTION Sec. 200.256. RECORD DATE FOR PURPOSE OTHER THAN WRITTEN CONSENT TO ACTION Sec. 200.257. QUORUM Sec. 200.258. VOTING IN ELECTION OF TRUST MANAGERS Sec. 200.259. CUMULATIVE VOTING IN ELECTION OF TRUST MANAGERS Sec. 200.260. VOTING ON MATTERS OTHER THAN ELECTION OF TRUST MANAGERS Sec. 200.261. VOTE REQUIRED TO APPROVE FUNDAMENTAL ACTION Sec. 200.262. CHANGES IN VOTE REQUIRED FOR CERTAIN MATTERS Sec. 200.263. NUMBER OF VOTES PER SHARE Sec. 200.264. VOTING IN PERSON OR BY PROXY Sec. 200.265. TERM OF PROXY Sec. 200.266. REVOCABILITY OF PROXY Sec. 200.267. ENFORCEABILITY OF PROXY Sec. 200.268. PROCEDURES IN BYLAWS RELATING TO PROXIES
[Sections 200.269-200.300 reserved for expansion]
SUBCHAPTER G. TRUST MANAGERS
Sec. 200.301. MANAGEMENT BY TRUST MANAGERS Sec. 200.302. DESIGNATION OF TRUST MANAGERS Sec. 200.303. TRUST MANAGER ELIGIBILITY REQUIREMENTS Sec. 200.304. NUMBER OF TRUST MANAGERS Sec. 200.305. COMPENSATION Sec. 200.306. TERM OF TRUST MANAGER Sec. 200.307. STAGGERED TERMS OF TRUST MANAGERS Sec. 200.308. VACANCY Sec. 200.309. NOTICE OF MEETING Sec. 200.310. QUORUM Sec. 200.311. COMMITTEES OF TRUST MANAGERS Sec. 200.312. LIABILITY OF TRUST MANAGERS Sec. 200.313. STATUTE OF LIMITATIONS ON CERTAIN ACTION AGAINST TRUST MANAGERS Sec. 200.314. IMMUNITY FROM LIABILITY FOR PERFORMANCE OF DUTY Sec. 200.315. RIGHT OF CONTRIBUTION Sec. 200.316. OFFICERS Sec. 200.317. CONTRACTS OR TRANSACTIONS INVOLVING INTERESTED TRUST MANAGERS AND OFFICERS
[Sections 200.318-200.350 reserved for expansion]
SUBCHAPTER H. INVESTMENTS
Sec. 200.351. INVESTMENTS
[Sections 200.352-200.400 reserved for expansion]
SUBCHAPTER I. FUNDAMENTAL BUSINESS TRANSACTIONS
Sec. 200.401. DEFINITIONS Sec. 200.402. APPROVAL OF MERGER Sec. 200.403. APPROVAL OF CONVERSION Sec. 200.404. APPROVAL OF EXCHANGE Sec. 200.405. APPROVAL OF SALE OF ALL OR SUBSTANTIALLY ALL OF ASSETS Sec. 200.406. GENERAL PROCEDURE FOR SUBMISSION TO SHAREHOLDERS OF FUNDAMENTAL BUSINESS TRANSACTION Sec. 200.407. GENERAL VOTE REQUIREMENT FOR APPROVAL OF FUNDAMENTAL BUSINESS TRANSACTION Sec. 200.408. CLASS VOTING REQUIREMENTS FOR CERTAIN FUNDAMENTAL BUSINESS TRANSACTIONS Sec. 200.409. NO SHAREHOLDER VOTE REQUIREMENT FOR CERTAIN FUNDAMENTAL BUSINESS TRANSACTIONS Sec. 200.410. RIGHTS OF DISSENT AND APPRAISAL
[Sections 200.411-200.450 reserved for expansion]
SUBCHAPTER J. SUPPLEMENTAL WINDING UP AND TERMINATION
PROVISIONS
Sec. 200.451. APPROVAL OF VOLUNTARY WINDING UP Sec. 200.452. APPROVAL OF REINSTATEMENT, CANCELLATION, OR REVOCATION OF VOLUNTARY WINDING UP Sec. 200.453. RESPONSIBILITY FOR WINDING UP
[Sections 200.454-200.500 reserved for expansion]
SUBCHAPTER K. MISCELLANEOUS PROVISIONS
Sec. 200.501. EXAMINATION OF RECORDS Sec. 200.502. JOINDER OF SHAREHOLDERS NOT REQUIRED Sec. 200.503. TAX LAW REQUIREMENTS
TITLE 6. ASSOCIATIONS
CHAPTER 251. COOPERATIVE ASSOCIATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 251.001. DEFINITIONS Sec. 251.002. APPLICABILITY OF NONPROFIT CORPORATION PROVISIONS Sec. 251.003. EXEMPTION
[Sections 251.004-251.050 reserved for expansion]
SUBCHAPTER B. FORMATION AND GOVERNING DOCUMENTS
Sec. 251.051. ORGANIZATION MEETING Sec. 251.052. AMENDMENT OF CERTIFICATE OF FORMATION Sec. 251.053. BYLAWS
[Sections 251.054-251.100 reserved for expansion]
SUBCHAPTER C. MANAGEMENT
Sec. 251.101. BOARD OF DIRECTORS Sec. 251.102. OFFICERS Sec. 251.103. REMOVAL OF DIRECTORS AND OFFICERS Sec. 251.104. REFERENDUM
[Sections 251.105-251.150 reserved for expansion]
SUBCHAPTER D. MEMBERSHIP
Sec. 251.151. ELIGIBILITY AND ADMISSION Sec. 251.152. EXPULSION Sec. 251.153. SUBSCRIBERS Sec. 251.154. LIABILITY
[Sections 251.155-251.200 reserved for expansion]
SUBCHAPTER E. SHARES
Sec. 251.201. SHARE AND MEMBERSHIP CERTIFICATES: ISSUANCE AND CONTENTS Sec. 251.202. TRANSFER OF SHARES AND MEMBERSHIP; WITHDRAWAL Sec. 251.203. SHARE AND MEMBERSHIP CERTIFICATES; RECALL Sec. 251.204. CERTIFICATES; ATTACHMENT
[Sections 251.205-251.250 reserved for expansion]
SUBCHAPTER F. MEETINGS AND VOTING
Sec. 251.251. MEETINGS Sec. 251.252. NOTICE OF SPECIAL MEETING Sec. 251.253. MEETINGS BY UNITS OF MEMBERSHIP Sec. 251.254. ONE MEMBER--ONE VOTE Sec. 251.255. NO PROXY Sec. 251.256. VOTING BY MAIL Sec. 251.257. VOTING BY MAIL OR BY DELEGATES
[Sections 251.258-251.300 reserved for expansion]
SUBCHAPTER G. CAPITAL AND NET SAVINGS
Sec. 251.301. LIMITATIONS ON RETURN ON CAPITAL Sec. 251.302. ALLOCATION AND DISTRIBUTION OF NET SAVINGS
[Sections 251.303-251.350 reserved for expansion]
SUBCHAPTER H. REPORTS AND RECORDS
Sec. 251.351. RECORDKEEPING Sec. 251.352. REPORTS TO MEMBERS Sec. 251.353. ANNUAL REPORT OF FINANCIAL CONDITION Sec. 251.354. FAILURE TO FILE REPORT
[Sections 251.355-251.400 reserved for expansion]
SUBCHAPTER I. WINDING UP AND TERMINATION
Sec. 251.401. VOLUNTARY WINDING UP AND TERMINATION Sec. 251.402. EXECUTION OF CERTIFICATE OF TERMINATION Sec. 251.403. DISTRIBUTION OF ASSETS Sec. 251.404. INVOLUNTARY TERMINATION
[Sections 251.405-251.450 reserved for expansion]
SUBCHAPTER J. MISCELLANEOUS PROVISIONS
Sec. 251.451. EXEMPTION FROM TAXES Sec. 251.452. USE OF NAME "COOPERATIVE"
CHAPTER 252. UNINCORPORATED NONPROFIT ASSOCIATIONS
Sec. 252.001. DEFINITIONS Sec. 252.002. SUPPLEMENTARY GENERAL PRINCIPLES OF LAW AND EQUITY Sec. 252.003. TERRITORIAL APPLICATION Sec. 252.004. REAL AND PERSONAL PROPERTY; NONPROFIT ASSOCIATION AS BENEFICIARY Sec. 252.005. STATEMENT OF AUTHORITY AS TO REAL PROPERTY Sec. 252.006. LIABILITY IN TORT AND CONTRACT Sec. 252.007. CAPACITY TO ASSERT AND DEFEND; STANDING Sec. 252.008. EFFECT OF JUDGMENT OR ORDER Sec. 252.009. DISPOSITION OF PERSONAL PROPERTY OF INACTIVE NONPROFIT ASSOCIATION Sec. 252.010. BOOKS AND RECORDS Sec. 252.011. APPOINTMENT OF AGENT TO RECEIVE SERVICE OF PROCESS Sec. 252.012. CLAIM NOT ABATED BY CHANGE Sec. 252.013. SUMMONS AND COMPLAINT; SERVICE Sec. 252.014. UNIFORMITY OF APPLICATION AND CONSTRUCTION Sec. 252.015. TRANSITION CONCERNING REAL AND PERSONAL PROPERTY Sec. 252.016. EFFECT ON OTHER LAW Sec. 252.017. CHAPTER CONTROLLING
TITLE 7. PROFESSIONAL ENTITIES
CHAPTER 301. PROVISIONS RELATING TO
PROFESSIONAL ENTITIES
Sec. 301.001. APPLICABILITY OF TITLE Sec. 301.002. CONFLICTS OF LAW Sec. 301.003. DEFINITIONS Sec. 301.004. AUTHORIZED PERSON Sec. 301.005. APPLICATION FOR REGISTRATION OF FOREIGN PROFESSIONAL ENTITY Sec. 301.006. LICENSE REQUIRED TO PROVIDE PROFESSIONAL SERVICE Sec. 301.007. CERTAIN REQUIREMENTS TO BE OWNER, GOVERNING PERSON, OR OFFICER Sec. 301.008. DUTIES AND POWERS OF OWNER OR MANAGERIAL OFFICIAL WHO CEASES TO BE LICENSED; PURCHASE OF OWNERSHIP INTEREST Sec. 301.009. TRANSFER OF OWNERSHIP INTEREST Sec. 301.010. LIABILITY Sec. 301.011. EXEMPTION FROM SECURITIES LAWS Sec. 301.012. JOINT PRACTICE BY CERTAIN PROFESSIONALS
CHAPTER 302. PROVISIONS RELATING TO
PROFESSIONAL ASSOCIATIONS
Sec. 302.001. APPLICABILITY OF CERTAIN PROVISIONS GOVERNING FOR-PROFIT CORPORATIONS Sec. 302.002. DURATION OF PROFESSIONAL ASSOCIATION Sec. 302.003. AMENDMENT OF CERTIFICATE OF FORMATION Sec. 302.004. ADOPTION OF BYLAWS; DELEGATION OF AUTHORITY Sec. 302.005. GOVERNING AUTHORITY Sec. 302.006. MEMBERS' VOTING RIGHTS Sec. 302.007. ELECTION OF OFFICERS Sec. 302.008. OFFICER AND GOVERNING PERSON ELIGIBILITY REQUIREMENTS Sec. 302.009. EMPLOYMENT OF AGENTS AND EMPLOYEES Sec. 302.010. LIMITATION ON MEMBER'S POWER TO BIND ASSOCIATION Sec. 302.011. DIVISION OF PROFITS Sec. 302.012. ANNUAL STATEMENT REQUIRED Sec. 302.013. WINDING UP AND TERMINATION; CERTIFICATE OF TERMINATION
CHAPTER 303. PROVISIONS RELATING TO
PROFESSIONAL CORPORATIONS
Sec. 303.001. APPLICABILITY OF CERTAIN PROVISIONS GOVERNING FOR-PROFIT CORPORATIONS Sec. 303.002. AUTHORITY AND LIABILITY OF SHAREHOLDER Sec. 303.003. NOTICE OF RESTRICTION ON TRANSFER OF SHARES Sec. 303.004. REDEMPTION OF SHARES; PRICE AND TERMS Sec. 303.005. EXISTENCE OF PROFESSIONAL CORPORATION BEFORE WINDING UP AND TERMINATION Sec. 303.006. WINDING UP AND TERMINATION OF PROFESSIONAL CORPORATION
CHAPTER 304. PROVISIONS RELATING TO PROFESSIONAL
LIMITED LIABILITY COMPANIES
Sec. 304.001. APPLICABILITY OF CERTAIN PROVISIONS GOVERNING LIMITED LIABILITY COMPANIES
TITLE 8. MISCELLANEOUS AND TRANSITION PROVISIONS
CHAPTER 401. GENERAL PROVISIONS
Sec. 401.001. DEFINITIONS
CHAPTER 402. MISCELLANEOUS AND TRANSITION PROVISIONS
Sec. 402.001. APPLICABILITY UPON EFFECTIVE DATE Sec. 402.002. EARLY EFFECTIVENESS OF FEES Sec. 402.003. EARLY ADOPTION OF CODE BY EXISTING DOMESTIC ENTITY Sec. 402.004. EARLY ADOPTION OF CODE BY REGISTERED FOREIGN ENTITY Sec. 402.005. APPLICABILITY TO EXISTING ENTITIES ON MANDATORY APPLICATION DATE Sec. 402.006. APPLICABILITY TO CERTAIN ACTS, CONTRACTS, AND TRANSACTIONS Sec. 402.007. INDEMNIFICATION Sec. 402.008. MEETINGS OF OWNERS AND MEMBERS; CONSENTS; VOTING OF INTERESTS Sec. 402.009. MEETINGS OF GOVERNING AUTHORITY AND COMMITTEES; CONSENTS Sec. 402.010. SALE OF ASSETS, MERGERS, REORGANIZATIONS, CONVERSIONS Sec. 402.011. WINDING UP AND TERMINATION Sec. 402.012. REGISTRATION OF CERTAIN FOREIGN ENTITIES Sec. 402.013. ENTITIES UNDER SUSPENSION FOR NONFILING OF REQUIRED REPORTS OR PAYMENT OF TAXES; APPLICABILITY OF PRIOR LAW Sec. 402.014. MAINTENANCE OF PRIOR ACTION
BUSINESS ORGANIZATIONS CODE
TITLE 1. GENERAL PROVISIONS
CHAPTER 1. DEFINITIONS AND OTHER GENERAL PROVISIONS
SUBCHAPTER A. DEFINITIONS AND PURPOSE
Sec. 1.001. PURPOSE. The purpose of this code is to make the law encompassed by this code more accessible and understandable by: (1) rearranging the statutes into a more logical order; (2) employing a format and numbering system designed to facilitate citation of the law and to accommodate future expansion of the law; (3) eliminating repealed, duplicative, expired, executed, and other ineffective provisions; and (4) restating the law in modern American English to the greatest extent possible. (New.) Sec. 1.002. DEFINITIONS. In this code: (1) "Affiliate" means a person who controls, is controlled by, or is under common control with another person. (TBCA 13.02.A(1).) (2) "Associate," when used to indicate a relationship with a person, means: (A) a domestic or foreign entity or organization for which the person: (i) is an officer or governing person; or (ii) beneficially owns, directly or indirectly, either individually or through an affiliate, 10 percent or more of a class of voting ownership interests or similar securities of the entity or organization; (B) a trust or estate in which the person has a substantial beneficial interest or for which the person serves as trustee or in a similar fiduciary capacity; (C) the person's spouse or a relative of the person related by consanguinity or affinity who resides with the person; or (D) a governing person or an affiliate or officer of the person. (TBCA 1.02.A(2).) (3) "Association" means an entity governed as an association under Title 6 or 7. The term includes a cooperative association, nonprofit association, and professional association. (New.) (4) "Assumed name" means a name adopted for use by a person. The term includes an assumed name filed under Chapter 36, Business & Commerce Code. (New.) (5) "Business" means a trade, occupation, profession, or other commercial activity. (TRPA 1.01(1).) (6) "Certificate of formation" means: (A) the document required to be filed with the filing officer under Chapter 3 to form a filing entity; and (B) if appropriate, a restated certificate of formation and all amendments of an original or restated certificate of formation. (New.) (7) "Certificated ownership interest" means an ownership interest of a domestic entity represented by a certificate issued in bearer or registered form. (TBCA 1.02.A(5).) (8) "Close corporation" means a for-profit corporation that elects to be governed as a close corporation in accordance with Subchapter O, Chapter 21. (TBCA 12.02.A(1).) (9) "Contribution" means a tangible or intangible benefit that a person transfers to an entity in consideration for an ownership interest in the entity or otherwise in the person's capacity as an owner or a member. The benefit includes cash, services rendered, a contract for services to be performed, a promissory note or other obligation of a person to pay cash or transfer property to the entity, or securities or other interests in or obligations of an entity, but does not include cash or property received by the entity: (A) with respect to a promissory note or other obligation to the extent that the agreed value of the note or obligation has previously been included as a contribution; or (B) that the person intends to be a loan to the entity. (TLLCA 5.01; TRLPA 1.02(2).) (10) "Conversion" means: (A) the continuance of a domestic entity as a foreign entity of any type; (B) the continuance of a foreign entity as a domestic entity of any type; or (C) the continuance of a domestic entity of one type as a domestic entity of another type. (TBCA 1.02.A(8); TLLCA 1.02.A(11); TRLPA 2.15(h)(1); TRPA 9.05(i)(1).) (11) "Converted entity" means an entity resulting from a conversion. (TBCA 1.02.A(9); TLLCA 1.02.A(12); TRLPA 2.15(h)(2); TRPA 9.05(i)(2).) (12) "Converting entity" means an entity as the entity existed before the entity's conversion. (TBCA 1.02.A(10); TLLCA 1.02.A(13); TRLPA 2.15(h)(3); TRPA 9.05(i)(3).) (13) "Cooperative" or "cooperative association" means an association governed as a cooperative association under Chapter 251. (New.) (14) "Corporation" means an entity governed as a corporation under Title 2 or 7. The term includes a for-profit corporation, nonprofit corporation, and professional corporation. (TBCA 1.02.A(11); TNPCA 1.02.A(1).) (15) "Debtor in bankruptcy" means a person who is the subject of: (A) an order for relief under the United States bankruptcy laws (Title 11, United States Code); or (B) a comparable order under a: (i) successor statute of general applicability; or (ii) federal or state law governing insolvency. (TRPA 1.01(4).) (16) "Director" means an individual who serves on the board of directors of a foreign or domestic corporation. (TNPCA 1.02.A(14).) (17) "Domestic" means, with respect to an entity, that the entity is formed under this code or the entity's internal affairs are governed by this code. (TBCA 1.02.A(11) (part); TRPA 9.05(i)(4).) (18) "Domestic entity" means an organization formed under or the internal affairs of which are governed by this code. (TBCA 1.02.A(11) (part); TRPA 9.05(i)(4).) (19) "Domestic entity subject to dissenters' rights" means a domestic entity the owners of which have rights of dissent and appraisal under this code or the governing documents of the entity. (New.) (20) "Effective date of this code" means January 1, 2006. The applicability of this code is governed by Title 8. (New.) (21) "Entity" means a domestic entity or foreign entity. (New.) (22) "Filing entity" means a domestic entity that is a corporation, limited partnership, limited liability company, professional association, cooperative, or real estate investment trust. (New.) (23) "Filing instrument" means an instrument, document, or statement that is required or authorized by this code to be filed by or for an entity with the filing officer in accordance with Chapter 4. (New.) (24) "Filing officer" means: (A) with respect to an entity other than a domestic real estate investment trust, the secretary of state; or (B) with respect to a domestic real estate investment trust, the county clerk of the county in which the real estate investment trust's principal office is located in this state. (New.) (25) "For-profit corporation" means a corporation governed as a for-profit corporation under Chapter 21. (TMCLA 1.03.A.) (26) "For-profit entity" means an entity other than a nonprofit entity. (New.) (27) "Foreign" means, with respect to an entity, that the entity is formed under, and the entity's internal affairs are governed by, the laws of a jurisdiction other than this state. (TBCA 1.02.A(14); TNPCA 1.02.A(2); TRPA 9.05(i)(5).) (28) "Foreign entity" means an organization formed under, and the internal affairs of which are governed by, the laws of a jurisdiction other than this state. (TBCA 1.02.A(14); TNPCA 1.02.A(2).) (29) "Foreign filing entity" means a foreign entity that registers or is required to register as a foreign entity under Chapter 9. (New.) (30) "Foreign governmental authority" means a governmental official, agency, or instrumentality of a jurisdiction other than this state. (New.) (31) "Foreign nonfiling entity" means a foreign entity that is not a foreign filing entity. (New.) (32) "Fundamental business transaction" means a merger, interest exchange, conversion, or sale of all or substantially all of an entity's assets. (New.) (33) "General partner" means: (A) each partner in a general partnership; or (B) a person who is admitted to a limited partnership as a general partner in accordance with the governing documents of the limited partnership. (TRLPA 1.02(4).) (34) "General partnership" means a partnership governed as a general partnership under Chapter 152. The term includes a limited liability partnership. (TRPA 1.01(11).) (35)(A) "Governing authority" means a person or group of persons who are entitled to manage and direct the affairs of an entity under this code and the governing documents of the entity, except that if the governing documents of the entity or this code divide the authority to manage and direct the affairs of the entity among different persons or groups of persons according to different matters, "governing authority" means the person or group of persons entitled to manage and direct the affairs of the entity with respect to a matter under the governing documents of the entity or this code. The term includes: (i) the board of directors of a corporation or other persons authorized to perform the functions of the board of directors of a corporation; (ii) the general partners of a general partnership or limited partnership; (iii) the managers of a limited liability company that is managed by managers; (iv) the members of a limited liability company that is managed by members who are entitled to manage the company; (v) the board of directors of a cooperative association; and (vi) the trust managers of a real estate investment trust. (B) The term does not include an officer who is acting in the capacity of an officer. (New.) (36) "Governing documents" means: (A) in the case of a domestic entity: (i) the certificate of formation for a domestic filing entity or the document or agreement under which a domestic nonfiling entity is formed; and (ii) the other documents or agreements adopted by the entity under this code to govern the formation or the internal affairs of the entity; or (B) in the case of a foreign entity, the instruments, documents, or agreements adopted under the law of its jurisdiction of formation to govern the formation or the internal affairs of the entity. (New.) (37) "Governing person" means a person serving as part of the governing authority of an entity. (New.) (38) "Individual" means a natural person. (New.) (39) "Insolvency" means the inability of a person to pay the person's debts as they become due in the usual course of business or affairs. (TBCA 1.02.A(16); TNPCA 1.02.A(12).) (40) "Insolvent" means a person who is unable to pay the person's debts as they become due in the usual course of business or affairs. (New.) (41) "Interest exchange" means the acquisition of an ownership or membership interest in a domestic entity as provided by Subchapter B, Chapter 10. The term does not include a merger or conversion. (New.) (42) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended. The term includes corresponding provisions of subsequent federal tax laws. (New.) (43) "Jurisdiction of formation" means: (A) in the case of a domestic filing entity, this state; (B) in the case of a foreign filing entity, the jurisdiction in which the entity's certificate of formation or similar organizational instrument is filed; or (C) in the case of a foreign or domestic nonfiling entity: (i) the jurisdiction the laws of which are chosen in the entity's governing documents to govern its internal affairs if that jurisdiction bears a reasonable relation to the owners or members or to the domestic or foreign nonfiling entity's business and affairs under the principles of this state that otherwise would apply to a contract among the owners or members; or (ii) if Subparagraph (i) does not apply, the jurisdiction in which the entity has its chief executive office. (TBCA 8.02 (part); TLLCA 7.02 (part); TNPCA 8.02 (part); TRLPA 9.01(a); TRPA 1.05(a), 10.01(a).) (44) "Law" means, unless the context requires otherwise, both statutory and common law. (New.) (45) "License" means a license, certificate of registration, or other legal authorization. (New.) (46) "Limited liability company" means an entity governed as a limited liability company under Title 3 or 7. The term includes a professional limited liability company. (TLLCA 1.02.A(3).) (47) "Limited liability limited partnership" means a partnership governed as a limited liability partnership and a limited partnership under Title 4. (New.) (48) "Limited liability partnership" means a partnership governed as a limited liability partnership under Title 4. (TRPA 1.01(16).) (49) "Limited partner" means a person who has been admitted to a limited partnership as a limited partner as provided by: (A) in the case of a domestic limited partnership, Chapter 153; or (B) in the case of a foreign limited partnership, the laws of its jurisdiction of formation. (TRLPA 1.02(5).) (50) "Limited partnership" means a partnership governed as a limited partnership under Title 4. The term includes a limited liability limited partnership. (TRLPA 1.02(6).) (51) "Manager" means a person designated as a manager of a limited liability company that is not managed by members of the company. (TLLCA 2.12 (part).) (52) "Managerial official" means an officer or a governing person. (New.) (53) "Member" means: (A) in the case of a limited liability company, a person who is a member or has been admitted as a member in the limited liability company under its governing documents; (B) in the case of a nonprofit corporation, a person who has membership rights in the nonprofit corporation under its governing documents; (C) in the case of a cooperative association, a member of a nonshare or share association; (D) in the case of a nonprofit association, a person who has membership rights in the nonprofit association under its governing documents; or (E) in the case of a professional association, a person who has membership rights in the professional association under its governing documents. (CAA 2(2); TLLCA 4.01.A (part); TNPCA 1.02.A(6); TUUNAA 2(1).) (54) "Membership interest" means a member's interest in an entity. With respect to a limited liability company, the term includes a member's share of profits and losses or similar items and the right to receive distributions, but does not include a member's right to participate in management. (TLLCA 4.04, 4.05.A.) (55) "Merger" means: (A) the division of a domestic entity into two or more new domestic entities or other organizations or into a surviving domestic entity and one or more new domestic or foreign entities or non-code organizations; or (B) the combination of one or more domestic entities with one or more domestic entities or non-code organizations resulting in: (i) one or more surviving domestic entities or non-code organizations; (ii) the creation of one or more new domestic entities or non-code organizations; or (iii) one or more surviving domestic entities or non-code organizations and the creation of one or more new domestic entities or non-code organizations. (TBCA 1.02.A(18); TLLCA 1.02.A(10); TRLPA 1.02(8).) (56) "Non-code organization" means an organization other than a domestic entity. (TBCA 1.02.A(20); TLLCA 10.07; TRLPA 2.15(h)(4); TRPA 9.05(i)(6).) (57) "Nonfiling entity" means a domestic entity that is not a filing entity. The term includes a domestic general partnership and nonprofit association. (New.) (58) "Nonprofit association" means an association governed as a nonprofit association under Chapter 252. (TUUNAA 2(2).) (59) "Nonprofit corporation" means a corporation governed as a nonprofit corporation under Chapter 22. (TNPCA 1.02.A(3).) (60) "Nonprofit entity" means an entity that is a nonprofit corporation, nonprofit association, or other entity that is organized solely for one or more of the purposes specified by Section 2.002. (New.) (61) "Officer" means an individual elected, appointed, or designated as an officer of an entity by the entity's governing authority or under the entity's governing documents. (New.) (62) "Organization" means a corporation, limited or general partnership, limited liability company, business trust, real estate investment trust, joint venture, joint stock company, cooperative, association, bank, insurance company, credit union, savings and loan association, or other organization, regardless of whether the organization is for-profit, nonprofit, domestic, or foreign. (New.) (63) "Owner," for purposes of Title 1, 7, or 8, means: (A) with respect to a foreign or domestic for-profit corporation or real estate investment trust, a shareholder; (B) with respect to a foreign or domestic partnership, a partner; (C) with respect to a foreign or domestic limited liability company or professional association, a member; or (D) with respect to another foreign or domestic entity, an owner of an equity interest in that entity. (New.) (64) "Ownership interest" means an owner's interest in an entity. The term includes the owner's share of profits and losses or similar items and the right to receive distributions. The term does not include an owner's right to participate in management. (New.) (65) "Parent" means an organization that, directly or indirectly through or with one or more of its subsidiaries: (A) owns at least 50 percent of the outstanding ownership or membership interests of another organization; or (B) possesses at least 50 percent of the voting power of the owners or members of another organization. (TMCLA 2.06.C (part).) (66) "Partner" means a limited partner or general partner. (TRLPA 1.02(9).) (67) "Partnership" means an entity governed as a partnership under Title 4. (TRPA 1.01(11) (part).) (68) "Partnership interest" means a partner's interest in a partnership. The term includes the partner's share of profits and losses or similar items and the right to receive distributions. The term does not include a partner's right to participate in management. (TRLPA 1.02(11); TRPA 1.01(13).) (69) "Party to the merger" means a domestic entity or non-code organization that under a plan of merger is divided or combined by a merger. The term does not include a domestic entity or non-code organization that is not to be divided or combined into or with one or more domestic entities or non-code organizations, regardless of whether ownership interests of the entity are to be issued under the plan of merger. (TBCA 5.03.I(4).) (70) "President" means the: (A) individual designated as president of an entity under the entity's governing documents; or (B) officer or committee of persons authorized to perform the functions of the principal executive officer of an entity without regard to the designated name of the officer or committee. (TNCPA 1.02.A(8).) (71) "Professional association" has the meaning assigned by Section 301.003. (TPAA 2(A), as amended Acts 77th Leg., R.S., Chs. 508 and 883.) (72) "Professional corporation" has the meaning assigned by Section 301.003. (TPCA 3(b).) (73) "Professional entity" has the meaning assigned by Section 301.003. (TLLCA 11.01.B(4).) (74) "Professional individual" has the meaning assigned by Section 301.003. (TLLCA 11.01.B(3).) (75) "Professional limited liability company" has the meaning assigned by Section 301.003. (TLLCA 11.01.B(2).) (76) "Professional service" has the meaning assigned by Section 301.003. (TLLCA 11.01.B(1); TPAA 3; TPCA 3(a).) (77) "Property" includes tangible and intangible property and an interest in that property. (TRPA 1.01(15).) (78) "Real estate investment trust" means an entity governed as a real estate investment trust under Title 5. (TREITA 2.10.) (79) "Secretary" means the: (A) individual designated as secretary of an entity under the entity's governing documents; or (B) officer or committee of persons authorized to perform the functions of secretary of an entity without regard to the designated name of the officer or committee. (TNPCA 1.02.A(10).) (80) "Share" means a unit into which the ownership interest in a for-profit corporation, professional corporation, real estate investment trust, or professional association is divided, regardless of whether the share is certificated or uncertificated. (TBCA 1.02.A(23); TPAA 10; TPCA 12 (part); TREITA 3.10(A)(7) (part).) (81) "Shareholder" or "holder of shares" means the person in whose name shares issued by a for-profit corporation, professional corporation, or real estate investment trust are registered in the share transfer records maintained by the for-profit corporation, professional corporation, or real estate investment trust. (TBCA 1.02.A(22).) (82) "Signature" means any symbol executed or adopted by a person with present intention to authenticate a writing. Unless the context requires otherwise, the term includes a digital signature, an electronic signature, and a facsimile of a signature. (Bus. & Com. Code 43.002(8); Gov. Code 311.005(6), 2054.060(e)(1); TMCLA 7.07.C; TRLPA 13.04(b); TRPA 3.08(b)(12).) (83) "Subscriber" means a person who agrees with or makes an offer to an entity to purchase by subscription an ownership interest in the entity. (TBCA 1.02.A(25).) (84) "Subscription" means an agreement between a subscriber and an entity, or a written offer made by a subscriber to an entity before or after the entity's formation, in which the subscriber agrees or offers to purchase a specified ownership interest in the entity. (TBCA 1.02.A(26).) (85) "Subsidiary" means an organization for which another organization, either directly or indirectly through or with one or more of its other subsidiaries: (A) owns at least 50 percent of the outstanding ownership or membership interests of the organization; or (B) possesses at least 50 percent of the voting power of the owners or members of the organization. (TMCLA 2.06.C (part).) (86) "Treasurer" means the: (A) individual designated as treasurer of an entity under the entity's governing documents; or (B) officer or committee of persons authorized to perform the functions of treasurer of an entity without regard to the designated name of the officer or committee. (TNPCA 1.02.A(11).) (87) "Uncertificated ownership interest" means an ownership interest in a domestic entity that is not represented by an instrument and is transferred by: (A) amendment of the governing documents of the entity; or (B) registration on books maintained by or on behalf of the entity for the purpose of registering transfers of ownership interests. (TBCA 1.02.A(29).) (88) "Vice president" means the: (A) individual designated as vice president of an entity under the governing documents of the entity; or (B) officer or committee of persons authorized to perform the functions of the president of the entity on the death, absence, or resignation of the president or on the inability of the president to perform the functions of office without regard to the designated name of the officer or committee. (TNPCA 1.02.A(9).) (89) "Writing" or "written" means an expression of words, letters, characters, numbers, symbols, figures, or other textual information that is inscribed on a tangible medium or that is stored in an electronic or other medium that is retrievable in a perceivable form. Unless the context requires otherwise, the term: (A) includes stored or transmitted electronic data and transmissions and reproductions of writings; and (B) does not include sound or video recordings of speech other than transcriptions that are otherwise writings. (Bus. & Com. Code 1.201(46), 43.002(12), 43.007, 43.008(a); Gov. Code 312.011(17).) Sec. 1.003. DISINTERESTED PERSON. (a) For purposes of this code, a person is disinterested with respect to the approval of a contract, transaction, or other matter, or to the consideration of the disposition of a claim or challenge relating to a contract, transaction, or particular conduct, if the person or the person's associate: (1) is not a party to the contract or transaction or materially involved in the conduct that is the subject of the claim or challenge; and (2) does not have a material financial interest in the outcome of the contract or transaction or the disposition of the claim or challenge. (b) For purposes of Subsection (a), a person is not materially involved in a contract or transaction that is the subject of a claim or challenge and does not have a material financial interest in the outcome of a contract or transaction or the disposition of a claim or challenge solely because: (1) the person was nominated or elected as a governing person by a person who is: (A) interested in the contract or transaction; or (B) alleged to have engaged in the conduct that is the subject of the claim or challenge; (2) the person receives normal fees or customary compensation, reimbursement for expenses, or benefits as a governing person of the entity; (3) the person has a direct or indirect equity interest in the entity; (4) the entity has, or its subsidiaries have, an interest in the contract or transaction or was affected by the alleged conduct; (5) the person or an associate of the person receives ordinary and reasonable compensation for reviewing, making recommendations regarding, or deciding on the disposition of the claim or challenge; or (6) in the case of a review by the person of the alleged conduct that is the subject of the claim or challenge: (A) the person is named as a defendant in the derivative proceeding regarding the matter or as a person who engaged in the alleged conduct; or (B) the person, acting as a governing person, approved, voted for, or acquiesced in the act being challenged if the act did not result in a material personal or financial benefit to the person and the challenging party fails to allege particular facts that, if true, raise a significant prospect that the governing person would be held liable to the entity or its owners or members as a result of the conduct. (TBCA 1.02.A(12).) Sec. 1.004. INDEPENDENT PERSON. (a) For purposes of this code, a person is independent with respect to considering the disposition of a claim or challenge regarding a contract or transaction, or particular or alleged conduct, if the person: (1) is disinterested; (2) either: (A) is not an associate, or member of the immediate family, of a party to the contract or transaction or of a person who is alleged to have engaged in the conduct that is the subject of the claim or challenge; or (B) is an associate to a party or person described by Paragraph (A) that is an entity if the person is an associate solely because the person is a governing person of the entity or of the entity's subsidiaries or associates; (3) does not have a business, financial, or familial relationship with a party to the contract or transaction, or with another person who is alleged to have engaged in the conduct, that is the subject of the claim or challenge that could reasonably be expected to materially and adversely affect the judgment of the person in favor of the party or other person with respect to the consideration of the matter; and (4) is not shown, by a preponderance of the evidence, to be under the controlling influence of a party to the contract or transaction that is the subject of the claim or challenge or of a person who is alleged to have engaged in the conduct that is the subject of the claim or challenge. (b) For purposes of Subsection (a), a person does not have a relationship that could reasonably be expected to materially and adversely affect the judgment of the person regarding the disposition of a matter that is the subject of a claim or challenge and is not otherwise under the controlling influence of a party to a contract or transaction that is the subject of a claim or challenge or that is alleged to have engaged in the conduct that is the subject of a claim or challenge solely because: (1) the person has been nominated or elected as a governing person by a person who is interested in the contract or transaction or alleged to be engaged in the conduct that is the subject of the claim or challenge; (2) the person receives normal fees or similar customary compensation, reimbursement for expenses, or benefits as a governing person of the entity; (3) the person has a direct or indirect equity interest in the entity; (4) the entity has, or its subsidiaries have, an interest in the contract or transaction or was affected by the alleged conduct; (5) the person or an associate of the person receives ordinary and reasonable compensation for reviewing, making recommendations regarding, or deciding on the disposition of the claim or challenge; or (6) the person, an associate of the person, other than the entity or its associates, or an immediate family member has a continuing business relationship with the entity that is not material to the person, associate, or family member. (TBCA 1.02.A(15).) Sec. 1.005. CONSPICUOUS INFORMATION. In this code, required information is conspicuous if the information is placed in a manner or displayed using a font that provides or should provide notice to a reasonable person affected by the information. Required information in a document is conspicuous if the font used for the information is capitalized, boldfaced, italicized, or underlined or is larger or of a different color than the remainder of the document. (TBCA 1.02.A(6).) Sec. 1.006. SYNONYMOUS TERMS. To the extent not inconsistent with the provisions of the constitution and other statutes or codes wherein such terms may be found, and as the context requires, in this code or any other statute or code of this state: (1) a reference to "articles of incorporation," "articles of organization," "articles of association," "certificate of limited partnership," and "charter" includes a "certificate of formation"; (2) a reference to "authorized capital stock" includes "authorized shares"; (3) a reference to "capital stock" includes "authorized and issued shares," "issued share," and "stated capital"; (4) a reference to a "certificate of registration," "certificate of authority," and "permit to do business" includes "registration"; (5) a reference to "stock" and "shares of stock" includes "shares"; (6) a reference to "stockholder" includes "shareholder"; (7) a reference to "no par stock" includes "shares without par value"; and (8) a reference to "paid-up capital" includes "stated capital." (TMCLA 1.02.) Sec. 1.007. SIGNING OF DOCUMENT OR OTHER WRITING. For purposes of this code, a writing has been signed by a person when the writing includes the person's signature. A transmission or reproduction of a writing signed by a person is considered signed by that person for purposes of this code. (TBCA 9.10.A(3); TLLCA 2.23.B(2); TNPCA 9.10.C(5); TMCLA 7.07.B, C; TRLPA 13.04(b); TRPA 3.08(a)(12).) Sec. 1.008. SHORT TITLES. (a) The provisions of this code as described by this section may be cited as provided by this section. (b) The provisions of Title 2 and the provisions of Title 1 to the extent applicable to corporations may be cited as the "Texas Corporation Law." (c) The provisions of Chapters 20 and 21 and the provisions of Title 1 to the extent applicable to for-profit corporations may be cited as the "Texas For-Profit Corporation Law." (d) The provisions of Chapters 20 and 22 and the provisions of Title 1 to the extent applicable to nonprofit corporations may be cited as the "Texas Nonprofit Corporation Law." (e) The provisions of Title 3 and the provisions of Title 1 to the extent applicable to limited liability companies may be cited as the "Texas Limited Liability Company Law." (f) The provisions of Chapters 151, 152, and 154 and the provisions of Title 1 to the extent applicable to general partnerships may be cited as the "Texas General Partnership Law." (g) The provisions of Chapters 151, 153, and 154 and the provisions of Title 1 to the extent applicable to limited partnerships may be cited as the "Texas Limited Partnership Law." (h) The provisions of Title 5 and the provisions of Title 1 to the extent applicable to real estate investment trusts may be cited as the "Texas Real Estate Investment Trust Law." (i) The provisions of Chapter 251 and the provisions of Title 1 to the extent applicable to cooperative associations may be cited as the "Texas Cooperative Association Law." (j) The provisions of Title 7 and the provisions of Titles 1, 2, and 3 to the extent applicable to professional entities may be cited as the "Texas Professional Entities Law." (k) The provisions of Chapter 252 may be cited as the "Uniform Unincorporated Nonprofit Association Act." (l) The provisions of Chapters 301 and 302 and the provisions of Chapters 20 and 21 and Title 1 to the extent applicable to professional associations may be cited as the "Texas Professional Association Law." (m) The provisions of Chapters 301 and 303 and the provisions of Chapters 20 and 21 and Title 1 to the extent applicable to professional corporations may be cited as the "Texas Professional Corporation Law." (n) The provisions of Chapters 301 and 304 and the provisions of Titles 1 and 3 to the extent applicable to professional limited liability companies may be cited as the "Texas Professional Limited Liability Company Law." (CAA 1; TBCA 1.01.A; TLLCA 1.01.A; TNPCA 1.01.A; TPAA 1; TPCA 1; TREITA 1.10; TRLPA 1.01; TRPA 11.01; TUUNAA 1.) Sec. 1.009. DOLLARS AS MONETARY UNITS. Unless the context requires otherwise, a value or amount that is required by this code to be stated in monetary terms must be stated in United States dollars. Currency that is not specified is considered to be in United States dollars. (New.)
[Sections 1.010-1.050 reserved for expansion]
SUBCHAPTER B. CODE CONSTRUCTION
Sec. 1.051. CONSTRUCTION OF CODE. Chapter 311, Government Code (Code Construction Act), applies to the construction of each provision in this code except as otherwise expressly provided by this code. (New.) Sec. 1.052. REFERENCE IN LAW TO STATUTE REVISED BY CODE. A reference in a law to a statute or a part of a statute revised by this code is considered to be a reference to the part of this code that revises that statute or part of that statute. (TBCA 1.02.C.) Sec. 1.053. APPLICABILITY TO FOREIGN AND INTERSTATE AFFAIRS. This code applies to the conduct of affairs with foreign countries and the other states of the United States only to the extent permitted under the United States Constitution. (TBCA 9.11; TLLCA 8.09; TNPCA 10.01.) Sec. 1.054. RESERVATION OF POWER. The legislature at all times has the power to amend, repeal, or modify this code and to prescribe regulations, provisions, and limitations as the legislature considers advisable. The regulations, provisions, and limitations are binding on any entity subject to this code. (TBCA 9.12; TLLCA 8.10; TNPCA 10.02; TRPA 1.06.)
[Sections 1.055-1.100 reserved for expansion]
SUBCHAPTER C. DETERMINATION OF APPLICABLE LAW
Sec. 1.101. DOMESTIC FILING ENTITIES. The law of this state governs the formation and internal affairs of an entity if the entity's formation occurs when a certificate of formation filed in accordance with Chapter 4 takes effect. (CAA 2(1); TBCA 1.02.A(11); TLLCA 1.02.A(3); TNPCA 1.02.A(1); TPAA 2(A); TPCA 6; TREITA 2.10; TRLPA 1.02(5), (6); TRPA 1.01(11); TRPA 1.05(a).) Sec. 1.102. FOREIGN FILING ENTITIES. If the formation of an entity occurs when a certificate of formation or similar instrument filed with a foreign governmental authority takes effect, the law of the state or other jurisdiction in which that foreign governmental authority is located governs the formation and internal affairs of the entity. (TBCA 8.02 (part); TLLCA 7.02 (part); TNPCA 8.02 (part); TRLPA 9.01(a).) Sec. 1.103. ENTITIES NOT FORMED BY FILING INSTRUMENT. If the formation of an entity does not occur when a certificate of formation or similar instrument filed with the secretary of state or with a foreign governmental authority takes effect, the law governing the entity's formation and internal affairs is the law of the entity's jurisdiction of formation. (TRPA 1.05(a) (part), 10.01(a) (part).) Sec. 1.104. LAW APPLICABLE TO LIABILITY. The law of the jurisdiction that governs an entity as determined under Sections 1.101-1.103 applies to the liability of an owner, a member, or a managerial official of the entity in the capacity as an owner, a member, or a managerial official for an obligation, including a debt or other liability, of the entity for which the owner, member, or managerial official is not otherwise liable by contract or under provisions of law other than this code. (TBCA 8.02 (part); TLLCA 7.02 (part); TNPCA 8.02 (part); TRLPA 9.01(a) (part); TRPA 1.05(b), 10.01(a) (part).) Sec. 1.105. INTERNAL AFFAIRS. For purposes of this code, the internal affairs of an entity include: (1) the rights, powers, and duties of its governing authority, governing persons, officers, owners, and members; and (2) matters relating to its membership or ownership interests. (TBCA 8.02 (part); TLLCA 7.02 (part); TNPCA 8.02 (part); TRLPA 9.01(a).) Sec. 1.106. ORDER OF PRECEDENCE. (a) This title applies to all domestic entities and foreign entities to the extent provided by this title. (b) Each title of this code, other than this title, applies to a different type of entity to the extent provided by that title. (c) If a provision of this title conflicts with a provision in another title of this code, the provision of the other title supersedes the provision of this title. (New.)
CHAPTER 2. PURPOSES AND POWERS OF DOMESTIC ENTITY
SUBCHAPTER A. PURPOSES OF DOMESTIC ENTITY
Sec. 2.001. GENERAL SCOPE OF PERMISSIBLE PURPOSES. A domestic entity has any lawful purpose or purposes, unless otherwise provided by this code. (TBCA 2.01.A (part); TLLCA 2.01.A; TNPCA 2.01.A (part); TRLPA 1.09(a).) Sec. 2.002. PURPOSES OF NONPROFIT ENTITY. The purpose or purposes of a domestic nonprofit entity may include one or more of the following purposes: (1) serving charitable, benevolent, religious, eleemosynary, patriotic, civic, missionary, educational, scientific, social, fraternal, athletic, aesthetic, agricultural, and horticultural purposes; (2) operating or managing a professional, commercial, or trade association or labor union; (3) providing animal husbandry; or (4) operating on a nonprofit cooperative basis for the benefit of its members. (TNPCA 2.01.A (part).) Sec. 2.003. GENERAL PROHIBITED PURPOSES. A domestic entity may not: (1) engage in a business or activity that: (A) is expressly unlawful or prohibited by a law of this state; (B) cannot lawfully be engaged in by that entity under state law; or (C) may not be engaged in by an entity without first obtaining a license under the laws of this state to engage in that business or activity and a license cannot lawfully be granted to the entity; or (2) operate as a: (A) bank; (B) trust company; (C) savings association; (D) insurance company; (E) railroad company; (F) cemetery organization; or (G) abstract or title company governed by Chapter 9, Insurance Code. (CAA 6 (part); TBCA 2.01.B (part); TLLCA 2.01.B; TNPCA 2.01.B (part); TRLPA 1.09(b).) Sec. 2.004. LIMITATION ON PURPOSES OF PROFESSIONAL ENTITY. Except as provided in Title 7, a professional entity may engage in only: (1) one type of professional service, unless the entity is expressly authorized to provide more than one type of professional service under state law regulating the professional services; and (2) services ancillary to that type of professional service. (Court opinion; TLLCA 11.01.A(2); TPCA 4(a) (part), 6.) Sec. 2.005. LIMITATION IN GOVERNING DOCUMENTS. The governing documents of a domestic entity may contain limitations on the entity's purposes. (TLLCA 2.01.A; TRLPA 1.09(a).) Sec. 2.006. PERMISSIBLE PURPOSE OF FOR-PROFIT CORPORATION RELATED TO RAILROADS. Notwithstanding Section 2.003(2)(E), a for-profit corporation may: (1) construct, acquire, maintain, and operate street railways, suburban railways, and belt lines of railways in or near municipalities to transport freight and passengers; (2) construct, own, and operate union depots; (3) buy, sell, and convey rights-of-way on which to construct railroads; (4) construct, acquire, maintain, and operate lines of electric, gas, or gasoline, denatured alcohol, or naphtha motor railways in and between municipalities, and interurban railways in and between municipalities in this state to transport freight or passengers; (5) build, maintain, and operate a line of railroads to mines, gins, quarries, manufacturing plants, or mills; (6) construct, maintain, and operate terminal railways; or (7) operate a railroad passenger service by contracting with a railroad corporation or other company that does not construct, own, or maintain a railroad track. (TBCA 2.01.C; TMCLA 3.05.) Sec. 2.007. ADDITIONAL PROHIBITED ACTIVITIES OF FOR-PROFIT CORPORATION. A for-profit corporation may not: (1) operate a cooperative association, limited cooperative association, or labor union; (2) transact a combination of the businesses of: (A) raising cattle and owning land for the raising of cattle, other than operating and owning feedlots and feeding cattle; and (B) operating stockyards and slaughtering, refrigerating, canning, curing, or packing meat; or (3) engage in a combination of: (A) the petroleum oil producing business in this state; and (B) the oil pipeline business in this state other than through stock ownership in a for-profit corporation engaged in the oil pipeline business and other than the ownership or operation of private pipelines in and about the corporation's refineries, fields, or stations. (TBCA 2.01.B (part).) Sec. 2.008. NONPROFIT CORPORATIONS. A corporation formed for the purpose of operating a nonprofit institution, including an institution devoted to a charitable, benevolent, religious, patriotic, civic, cultural, missionary, educational, scientific, social, fraternal, athletic, or aesthetic purpose, may be formed and governed only as a nonprofit corporation under this code and not as a for-profit corporation under this code. (TBCA 2.01.A (part).) Sec. 2.009. PERMISSIBLE PURPOSE OF NONPROFIT CORPORATION RELATED TO ORGANIZED LABOR. Subject to Chapter 101, Labor Code, a nonprofit corporation may be formed to organize laborers, workers, or wage earners to protect themselves in their various pursuits. (TNPCA 2.01.A (part).) Sec. 2.010. PROHIBITED ACTIVITIES OF NONPROFIT CORPORATION. A nonprofit corporation may not be organized or registered under this code to conduct its affairs in this state to: (1) engage in or operate as a group hospital service, rural credit union, agricultural and livestock pool, mutual loan corporation, cooperative association under Chapter 251, cooperative credit association, farmers' cooperative society, Co-operative Marketing Act corporation, rural electric cooperative corporation, telephone cooperative corporation, or fraternal organization operating under the lodge system and incorporated under Subchapter C, Chapter 23; or (2) engage in water supply or sewer service as an entity incorporated under Chapter 67, Water Code. (TNPCA 2.01.B (part).) Sec. 2.011. PURPOSES OF COOPERATIVE ASSOCIATION. (a) A person may organize a cooperative association under this code to acquire, produce, build, operate, manufacture, furnish, exchange, or distribute any type of property, commodities, goods, or services for the primary and mutual benefit of the members of the cooperative association. (b) A cooperative association may not be organized to: (1) serve or function as a health maintenance organization; (2) furnish medical or health care; or (3) employ or contract with a health care provider in a manner prohibited by the statute under which the provider is licensed. (c) A cooperative association may not directly or indirectly engage in a health maintenance organization or a prepaid legal service corporation. (CAA 5, 6 (part), 26(b) (part).) Sec. 2.012. LIMITATION ON PURPOSES OF REAL ESTATE INVESTMENT TRUST. The purposes of a real estate investment trust are limited by Section 3.012. (TREITA 3.10(A) (part).)
[Sections 2.013-2.100 reserved for expansion]
SUBCHAPTER B. POWERS OF DOMESTIC ENTITY
Sec. 2.101. GENERAL POWERS. Except as otherwise provided by this code, a domestic entity has the same powers as an individual to take action necessary or convenient to carry out its business and affairs. Except as otherwise provided by this code, the powers of a domestic entity include the power to: (1) sue, be sued, and defend suit in the entity's business name; (2) have and alter a seal and use the seal or a facsimile of it by impressing, affixing, or reproducing it; (3) acquire, receive, own, hold, improve, use, and deal in and with property or an interest in property; (4) sell, convey, mortgage, pledge, lease, exchange, and otherwise dispose of property; (5) make contracts and guarantees; (6) incur liabilities, borrow money, issue notes, bonds, or other obligations, which may be convertible into, or include the option to purchase, other securities or ownership interests in the entity, and secure its obligations by mortgaging or pledging its property, franchises, or income; (7) lend money, invest its funds, and receive and hold property as security for repayment if the loan or assistance reasonably may be expected to benefit, directly or indirectly, the entity; (8) acquire its own bonds, debentures, or other evidences of indebtedness or obligations; (9) acquire its own ownership interests, regardless of whether redeemable, and hold the ownership interests as treasury ownership interests or cancel or dispose of the ownership interests; (10) be a promoter, organizer, owner, partner, member, associate, or manager of an organization; (11) acquire, receive, own, hold, vote, use, pledge, and dispose of ownership interests in or securities issued by another person; (12) conduct its business, locate its offices, and exercise the powers granted by this code to further its purposes, in or out of this state; (13) lend money to, and otherwise assist, its managerial officials, owners, members, or employees as necessary or appropriate; (14) elect or appoint officers and agents of the entity, establish the length of their terms, define their duties, and fix their compensation; (15) pay pensions and establish pension plans, pension trusts, profit-sharing plans, bonus plans, and incentive plans for managerial officials, owners, members, or employees or former managerial officials, owners, members, or employees; (16) indemnify and maintain liability insurance for managerial officials, owners, members, employees, and agents of the entity or the entity's affiliate; (17) adopt and amend governing documents for managing the affairs of the entity subject to applicable law; (18) make donations for the public welfare or for a charitable, scientific, or educational purpose; (19) voluntarily wind up its business and activities and terminate its existence; (20) transact business or take action that will aid governmental policy; and (21) take other action necessary or appropriate to further the purposes of the entity. (TBCA 2.02.A (part); TLLCA 2.02.A, 2.11; TNPCA 2.02.A (part); TPAA 5; TREITA 6.10(A); TRPA 3.01 (part), 3.05(a).) Sec. 2.102. ADDITIONAL POWERS OF NONPROFIT ENTITY OR INSTITUTION. To effect its purposes, a domestic nonprofit entity or institution formed for a religious, charitable, educational, or eleemosynary purpose may acquire, own, hold, mortgage, and dispose of and invest its funds in property for the use and benefit of, under the discretion of, and in trust for a convention, conference, or association organized under the laws of this state or another state with which it is affiliated or by which it is controlled. (TNPCA 2.02.A (part).) Sec. 2.103. POWER TO INCUR INDEBTEDNESS. (a) Unless otherwise provided by its governing documents or this code, a domestic entity may create indebtedness for any consideration the entity considers appropriate, including: (1) cash; (2) property; (3) a contract to receive property; (4) a debt or other obligation of the entity or of another person; (5) services performed or a contract for services to be performed; or (6) a direct or indirect benefit realized by the entity. (b) In the absence of fraud in the transaction, the judgment of the governing authority of a domestic entity as to the value of the consideration received by the entity for indebtedness is conclusive. (c) The consideration for the indebtedness may be received either directly or indirectly by the domestic entity, including by a domestic or foreign organization that is wholly or partially owned, directly or indirectly, by the domestic entity. (d) This section does not apply to indebtedness created by a domestic entity that is incurred by reason of the authorization or payment of a distribution. (TLLCA 8.12.B; TMCLA 2.06.A.) Sec. 2.104. POWER TO MAKE GUARANTIES. (a) In this section, "guaranty" means a mortgage, pledge, security agreement, or other agreement making the domestic entity or its assets secondarily liable for another person's contract, security, or other obligation. (b) Unless otherwise provided by its governing documents or this code, a domestic entity may: (1) make a guaranty on behalf of a parent, subsidiary, or affiliate of the entity; or (2) make a guaranty of the indebtedness of another person if the guaranty may reasonably be expected directly or indirectly to benefit the entity. (c) For purposes of Subsection (b)(2), a decision by the governing authority of the domestic entity that a guaranty may reasonably be expected to benefit the entity is conclusive and not subject to attack by any person, except: (1) a guaranty may not be enforced by a person who participated in a fraud on the domestic entity resulting in the making of the guaranty or by a person who had notice of that fraud at the time the person acquired rights under the guaranty; (2) a proposed guaranty may be enjoined at the request of an owner of the domestic entity on the ground that the guaranty cannot reasonably be expected to benefit the domestic entity; or (3) the domestic entity, whether acting directly or through a receiver, trustee, or other legal representative, or through an owner on behalf of the domestic entity, may bring suit for damages against the managerial officials, owners, or members who authorized the guaranty on the ground that the guaranty could not reasonably be expected to benefit the domestic entity. (d) This section does not: (1) apply to a domestic entity governed by the Insurance Code; or (2) authorize a domestic entity that is not governed by the Insurance Code to engage in a business or transaction regulated by the Insurance Code. (TLLCA 8.12.B; TMCLA 2.06.B, C, D.) Sec. 2.105. ADDITIONAL POWERS OF CERTAIN PIPELINE BUSINESSES. In addition to the powers provided by the other sections of this subchapter, a corporation, general partnership, limited partnership, limited liability company, or other combination of those entities engaged as a common carrier in the pipeline business for the purpose of transporting oil, oil products, gas, carbon dioxide, salt brine, fuller's earth, sand, clay, liquefied minerals, or other mineral solutions has all the rights and powers conferred on a common carrier by Sections 111.019-111.022, Natural Resources Code. (TBCA 2.01.B (part); TLLCA 2.02.D; TRLPA 1.09(c); TRPA 3.01 (part).) Sec. 2.106. POWER OF NONPROFIT CORPORATION TO SERVE AS TRUSTEE. (a) A nonprofit corporation that is described by Section 501(c)(3) or 170(c), Internal Revenue Code, or a corresponding provision of a subsequent federal tax law, or a nonprofit corporation listed by the Internal Revenue Service in the Cumulative List of Organizations Described in Section 170(c) of the Internal Revenue Code of 1986, I.R.S. Publication 78, or any successor I.R.S. publication, may serve as the trustee of a trust: (1) of which the nonprofit corporation is a beneficiary; or (2) benefiting another organization described by one of those sections of the Internal Revenue Code, or a corresponding provision of a subsequent federal tax law, or listed by the Internal Revenue Service in the Cumulative List of Organizations Described in Section 170(c) of the Internal Revenue Code of 1986, I.R.S. Publication 78, or any successor I.R.S. publication. (b) Any corporation (or person or entity assisting such corporation) described in this section shall have immunity from suit (including both a defense to liability and the right not to bear the cost, burden, and risk of discovery and trial) as to any claim alleging that the corporation's role as trustee of a trust described in this section constitutes engaging in the trust business in a manner requiring a state charter as defined in Section 181.002(a)(9), Finance Code. An interlocutory appeal may be taken if a court denies or otherwise fails to grant a motion for summary judgment that is based on an assertion of the immunity provided in this subsection. (TNPCA 2.31.) Sec. 2.107. STANDARD TAX PROVISIONS FOR CERTAIN CHARITABLE NONPROFIT CORPORATIONS; POWER TO EXCLUDE. (a) Notwithstanding any conflicting provision of this chapter, Chapter 3, or the certificate of formation and except as provided by Subsection (b), the certificate of formation of each corporation that is a private foundation as defined by Section 509, Internal Revenue Code, is considered to contain the following provisions: "The corporation shall make distributions at the time and in the manner as not to subject it to tax under Section 4942 of the Internal Revenue Code of 1986; the corporation shall not engage in any act of self-dealing which would be subject to tax under Section 4941 of the Code; the corporation shall not retain any excess business holdings which would subject it to tax under Section 4943 of the Code; the corporation shall not make any investments which would subject it to tax under Section 4944 of the Code; and the corporation shall not make any taxable expenditures which would subject it to tax under Section 4945 of the Code." (b) A nonprofit corporation described by Subsection (a) may amend the certificate of formation of the corporation to expressly exclude the application of Subsection (a). (TNPCA 2.27.A, B.) Sec. 2.108. POWERS OF PROFESSIONAL ASSOCIATION. Except as provided by Title 7, a professional association has the same powers, privileges, duties, restrictions, and liabilities as a for-profit corporation. (TPAA 25 (part).) Sec. 2.109. POWERS OF PROFESSIONAL CORPORATION. Except as provided by Title 7, a professional corporation has the same powers, privileges, duties, restrictions, and liabilities as a for-profit corporation. (TPCA 5 (part).) Sec. 2.110. POWERS OF COOPERATIVE ASSOCIATION. (a) Except as provided by Chapter 251, a cooperative association may exercise the same powers and privileges and is subject to the same duties, restrictions, and liabilities as a nonprofit corporation. (b) A cooperative association may: (1) own and hold membership in other associations or corporations; (2) own and hold share capital of other associations or corporations; (3) own and exercise ownership rights in bonds or other obligations; (4) make agreements of mutual aid or federation with other associations, other groups organized on a cooperative basis, or other nonprofit groups; and (5) deliver money to a scholarship fund for rural students. (CAA 6 (part).) Sec. 2.111. LIMITATION ON POWERS OF COOPERATIVE ASSOCIATION. Except for the payment of necessary legal fees or promotion expenses, a cooperative association may not directly or indirectly use its funds, issue shares, or incur indebtedness for the payment of compensation for the organization of the cooperative association in excess of five percent of the amount paid for the shares or membership certificates involved in the promotion transaction. (CAA 40(a).) Sec. 2.112. STATED POWERS IN SUBCHAPTER SUFFICIENT. A domestic entity is not required to state any of the powers provided to the entity by this subchapter in its governing documents. (TBCA 3.02.B; TLLCA 3.02.B; TNPCA 3.02.C.) Sec. 2.113. LIMITATION ON POWERS. (a) This subchapter does not authorize a domestic entity or a managerial official of a domestic entity to exercise a power in a manner inconsistent with a limitation on the purposes or powers of the entity contained in its governing documents, this code, or other law of this state. (b) This code does not authorize any action in violation of the antitrust laws of this state. (TBCA 2.02.B, C; TLLCA 2.02.B, C; TNPCA 2.02.B, C; TREITA 6.10(B), (C).) Sec. 2.114. CERTIFICATED INDEBTEDNESS; MANNER OF ISSUANCE; SIGNATURE AND SEAL. (a) Except as otherwise provided by the governing documents of the domestic entity, this code, or other law, on the issuance by a domestic entity of a bond, debenture, or other evidence of indebtedness in certificated form, the seal of the entity, if the entity has adopted a seal, may be a facsimile that may be engraved or printed on the certificate. (b) Except as otherwise provided by the governing documents of the domestic entity, this code, or other law, if a security described by Subsection (a) is authenticated with the manual signature of an authorized officer of the domestic entity or an authorized officer or representative, to the extent permitted by law, of a transfer agent or trustee appointed or named by an indenture of trust or other agreement under which the security is issued, the signature of any officer of the domestic entity may be a facsimile signature. (c) A security described by Subsection (a) that contains the manual or facsimile signature of a person who is no longer an officer when the security is delivered by the entity may be adopted, issued, and delivered by the entity in the same manner and to the same extent as if the person had remained an officer of the entity. (TLLCA 8.12.B; TMCLA 2.05.)
CHAPTER 3. FORMATION AND GOVERNANCE
SUBCHAPTER A. FORMATION, EXISTENCE, AND
CERTIFICATE OF FORMATION
Sec. 3.001. FORMATION AND EXISTENCE OF FILING ENTITIES. (a) Subject to the other provisions of this code, to form a filing entity, a certificate of formation complying with Sections 3.003, 3.004, and 3.005 must be filed in accordance with Chapter 4. (b) The filing of a certificate of formation described by Subsection (a) may be included in a filing under Chapter 10. (c) The existence of a filing entity commences when the filing of the certificate of formation takes effect as provided by Chapter 4. (d) Except in a proceeding by the state to terminate the existence of a filing entity, an acknowledgment of the filing of a certificate of formation issued by the filing officer is conclusive evidence of: (1) the formation and existence of the filing entity; (2) the satisfaction of all conditions precedent to the formation of the filing entity; and (3) the authority of the filing entity to transact business in this state. (CAA 9(a), (b); TBCA 3.03.A, 3.04; TLLCA 3.01, 3.03.A, 3.04, 11.01.A(1) (part); TNPCA 3.03.A, 3.04; TPAA 12(A), 13; TPCA 4(a) (part); TREITA 3.10(B); TRLPA 2.01(a) (part), (b).) Sec. 3.002. FORMATION AND EXISTENCE OF NONFILING ENTITIES. The requirements for the formation of and the determination of the existence of a nonfiling entity are governed by the title of this code that applies to that entity. (New.) Sec. 3.003. DURATION. A domestic entity exists perpetually unless otherwise provided in the governing documents of the entity. A domestic entity may be terminated in accordance with this code or the Tax Code. (TBCA 2.02.A (part); TLLCA 2.02.A; TNPCA 2.02.A (part); TPCA 17 (part).) Sec. 3.004. ORGANIZERS. (a) Any person having the capacity to contract for the person or for another may be an organizer of a filing entity. (b) Each organizer of a filing entity must sign the certificate of formation of the filing entity, except that: (1) each general partner must sign the certificate of formation of a domestic limited partnership; and (2) each trust manager must sign and acknowledge before an officer who is authorized by law to take acknowledgment of a deed the certificate of formation of a domestic real estate investment trust. (TBCA 3.01 (part); TLLCA 3.01 (part); TNPCA 3.01.A (part); TREITA 3.10(A) (part); TRLPA 2.01(a) (part).) Sec. 3.005. CERTIFICATE OF FORMATION. (a) The certificate of formation must state: (1) the name of the filing entity being formed; (2) the type of filing entity being formed; (3) for filing entities other than limited partnerships, the purpose or purposes for which the filing entity is formed, which may be stated to be or include any lawful purpose for that type of entity; (4) for filing entities other than limited partnerships, the period of duration, if the entity is not formed to exist perpetually; (5) the street address of the initial registered office of the filing entity and the name of the initial registered agent of the filing entity at the office; (6) the name and address of each: (A) organizer for the filing entity, unless the entity is formed under a plan of conversion or merger; (B) general partner, if the filing entity is a limited partnership; or (C) trust manager, if the filing entity is a real estate investment trust; (7) if the filing entity is formed under a plan of conversion or merger, a statement to that effect and, if formed under a plan of conversion, the name, address, date of formation, prior form of organization, and jurisdiction of formation of the converting entity; and (8) any other information required by this code to be included in the certificate of formation for the filing entity. (b) The certificate of formation may contain other provisions not inconsistent with law relating to the organization, ownership, governance, business, or affairs of the filing entity. (c) Except as provided by Section 3.004, Chapter 4 governs the signing and filing of a certificate of formation for a domestic entity. (TBCA 3.02.A (part); TLLCA 3.02.A (part), 11.01.A(1) (part); TNPCA 3.02.A (part); TPAA 8(A) (part); TPCA 4(a) (part); TREITA 3.10(A) (part); TRLPA 2.01(a) (part).) Sec. 3.006. FILINGS IN CASE OF MERGER OR CONVERSION. (a) If a new domestic filing entity is formed under a plan of conversion or merger, the certificate of formation of the entity must be filed with the certificate of conversion or merger under Section 10.155(a) or 10.153(a). The certificate of formation is not required to be filed separately under Section 3.001. (b) The formation and existence of a domestic filing entity that is a converted entity in a conversion or that is to be created under a plan of merger takes effect and commences on the effectiveness of the conversion or merger, as appropriate. (TBCA 3.03.C (part), 3.04.B; TLLCA 3.03.C (part), 3.04.B; TRLPA 2.01(b) (part), 2.11(e) (part), 2.15(c) (part).) Sec. 3.007. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF FOR-PROFIT CORPORATION. (a) In addition to the information required by Section 3.005, the certificate of formation of a for-profit corporation must state: (1) the aggregate number of shares the corporation is authorized to issue; (2) if the shares the corporation is authorized to issue consist of one class of shares only, the par value of each share or a statement that each share is without par value; (3) if the corporation is to be managed by a board of directors, the number of directors constituting the initial board of directors and the name and address of each person who will serve as director until the first annual meeting of shareholders and until a successor is elected and qualified; and (4) if the corporation is to be managed pursuant to a shareholders' agreement in a manner other than by a board of directors, the name and address of each person who will perform the functions required by this code to be performed by the initial board of directors. (b) If the shares a for-profit corporation is authorized to issue consist of more than one class of shares, the certificate of formation of the for-profit corporation must, with respect to each class, state: (1) the designation of the class; (2) the aggregate number of shares in the class; (3) the par value of each share or a statement that each share is without par value; (4) the preferences, limitations, and relative rights of the shares; and (5) if the shares in a class the corporation is authorized to issue consist of more than one series, the following with respect to each series: (A) the designation of the series; (B) the aggregate number of shares in the series; (C) any preferences, limitations, and relative rights of the shares to the extent provided in the certificate of formation; and (D) any authority vested in the board of directors to establish the series and set and determine the preferences, limitations, and relative rights of the series. (c) If the shareholders of a for-profit corporation are to have a preemptive right or cumulative voting right, the certificate of formation of the for-profit corporation must comply with Section 21.203 or 21.360, as appropriate. (TBCA 3.02.A (part).) Sec. 3.008. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF CLOSE CORPORATION. (a) In addition to a provision required or permitted to be stated in the certificate of formation of a for-profit corporation under Section 3.007, the certificate of formation of a close corporation, whether original, amended, or restated, must include the sentence, "This corporation is a close corporation." (b) The certificate of formation of the close corporation may contain: (1) a provision contained or permitted to be contained in a shareholders' agreement conforming to Subchapter O, Chapter 21, that the organizers elect to include in the certificate of formation; or (2) a copy of a shareholders' agreement that conforms to Subchapter O, Chapter 21, and that may be filed in the manner provided by Section 21.212. (c) A provision contained in the certificate of formation under Subsection (b) must be preceded by a statement that the provision is subject to the corporation remaining a close corporation. (TBCA 3.02.A (part), 12.11.) Sec. 3.009. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF NONPROFIT CORPORATION. In addition to the information required by Section 3.005, the certificate of formation of a nonprofit corporation must include: (1) if the nonprofit corporation is to have no members, a statement to that effect; (2) if management of the nonprofit corporation's affairs is to be vested in the nonprofit corporation's members, a statement to that effect; (3) the number of directors constituting the initial board of directors and the names and addresses of those directors or, if the management of the nonprofit corporation is vested solely in the nonprofit corporation's members, a statement to that effect; and (4) if the nonprofit corporation is to be authorized on its winding up to distribute the nonprofit corporation's assets in a manner other than as provided by Section 22.304, a statement describing the manner of distribution. (TNPCA 3.02.A (part).) Sec. 3.010. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF LIMITED LIABILITY COMPANY. In addition to the information required by Section 3.005, the certificate of formation of a limited liability company must state: (1) whether the limited liability company will or will not have managers; (2) if the limited liability company will have managers, the name and address of each initial manager of the limited liability company; and (3) if the limited liability company will not have managers, the name and address of each initial member of the limited liability company. (TLLCA 3.02.A (part).) Sec. 3.011. SUPPLEMENTAL PROVISIONS REGARDING CERTIFICATE OF FORMATION OF LIMITED PARTNERSHIP. (a) To form a limited partnership, the partners must enter into a partnership agreement and file a certificate of formation. (b) The partners of a limited partnership formed under Section 10.001 or 10.101 may include the partnership agreement required under Subsection (a) in the plan of merger or conversion. (c) A certificate of formation for a limited partnership must include the address of the principal office of the partnership in the United States where records are to be kept or made available under Section 153.551. (d) The fact that a certificate of formation is on file with the secretary of state is notice that the partnership is a limited partnership and of all other facts contained in the certificate as required by Section 3.005. (TRLPA 2.01(a) (part), 2.09.) Sec. 3.012. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF REAL ESTATE INVESTMENT TRUST. In addition to the information required by Section 3.005, the certificate of formation of a real estate investment trust must state: (1) that an assumed name certificate stating the name of the real estate investment trust has been filed in the manner provided by law; (2) that the purpose of the real estate investment trust is to: (A) purchase, hold, lease, manage, sell, exchange, develop, subdivide, and improve real property and interests in real property, other than severed mineral, oil, or gas royalty interests, and carry on any other business and perform any other action in connection with a purpose described by this paragraph; (B) exercise powers conferred by the laws of this state on a real estate investment trust; and (C) perform any action described by Chapter 200 or Title 1 to the same extent as an individual; (3) the post office address of the initial principal office and place of business of the real estate investment trust; (4) the aggregate number of shares of beneficial interest the real estate investment trust is authorized to issue and the par value to be received by the real estate investment trust for the issuance of each share; (5) if shares described by Subdivision (4) are divided into classes as authorized by Section 200.102 or 200.103, a description of each class of shares, including any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption; and (6) that the trust managers shall manage the money or property received for the issuance of shares for the benefit of the shareholders of the real estate investment trust. (TREITA 3.10(A) (part).) Sec. 3.013. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF COOPERATIVE ASSOCIATION. In addition to the information required by Section 3.005, the certificate of formation of a cooperative association must state: (1) whether the cooperative association is organized with or without shares; (2) the number of shares or memberships subscribed for the cooperative association; (3) if the cooperative association is organized with shares: (A) the amount of authorized capital; (B) the number and type of shares; (C) par value of the shares, if any; and (D) the rights, preferences, and restrictions of each type of share; (4) the method of distribution on winding up and termination of any surplus of the cooperative association in accordance with Section 251.403; and (5) the names and street addresses of the directors who will manage the affairs of the cooperative association for the initial year, unless sooner changed by the members. (CAA 8(b) (part).) Sec. 3.014. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF PROFESSIONAL ENTITY. In addition to the information required by Section 3.005, the certificate of formation of a professional entity must state: (1) the type of professional service to be provided by the professional entity as the purpose of the entity; and (2) that the professional entity is a: (A) professional association; (B) professional corporation; or (C) professional limited liability company. (TLLCA 11.01.A(1) (part); TPAA 8(A) (part); TPCA 4(a) (part).) Sec. 3.015. SUPPLEMENTAL PROVISIONS REQUIRED IN CERTIFICATE OF FORMATION OF PROFESSIONAL ASSOCIATION. (a) In addition to containing the information required under Sections 3.005 and 3.014, the certificate of formation of a professional association must: (1) be signed by each member of the association; and (2) state: (A) the name and address of each original member of the association; and (B) that a member of the association may not dissolve the association independently of other members of the association. (b) The certificate of formation of a professional association may contain: (1) provisions regarding shares or units of ownership in the association; (2) provisions governing the winding up and termination of the association's business; and (3) any other provision consistent with state law regulating the internal affairs of a professional association. (TPAA 8(A) (part), (B), (C), (D), (E).)
[Sections 3.016-3.050 reserved for expansion]
SUBCHAPTER B. AMENDMENTS AND RESTATEMENTS OF
CERTIFICATE OF FORMATION
Sec. 3.051. RIGHT TO AMEND CERTIFICATE OF FORMATION. (a) A filing entity may amend its certificate of formation. (b) An amended certificate of formation may contain only provisions that: (1) would be permitted at the time of the amendment if the amended certificate of formation were a newly filed original certificate of formation; or (2) effect a change, exchange, reclassification, or cancellation in the membership or ownership interests or the rights of owners or members of the filing entity. (TBCA 4.01.A; TLLCA 3.05.A; TNPCA 4.01; TPAA 14(A); TREITA 22.10(A); TRLPA 2.02(a) (part).) Sec. 3.052. PROCEDURES TO AMEND CERTIFICATE OF FORMATION. (a) The procedure to adopt an amendment to the certificate of formation is as provided by the title of this code that applies to the entity. (b) A filing entity that amends its certificate of formation shall sign and file, in the manner required by Chapter 4, a certificate of amendment complying with Section 3.053 or a restated certificate of formation complying with Section 3.059. (TBCA 4.05; TLLCA 3.07.A; TNPCA 4.04; TPAA 16; TREITA 22.50; TRLPA 2.02(a) (part).) Sec. 3.053. CERTIFICATE OF AMENDMENT. A certificate of amendment for a filing entity must state: (1) the name of the filing entity; (2) the type of the filing entity; (3) for each provision of the certificate of formation that is added, altered, or deleted, an identification by reference or description of the added, altered, or deleted provision and, if the provision is added or altered, a statement of the text of the amended or added provision; (4) that the amendment or amendments have been approved in the manner required by this code and the governing documents of the entity; and (5) any other matter required by the provisions of this code applicable to the filing entity to be in the certificate of amendment. (TBCA 4.04.B; TLLCA 3.06.B; TNPCA 4.03; TPAA 15; TREITA 22.40(B); TRLPA 2.02(a).) Sec. 3.054. SUPPLEMENTAL PROVISIONS FOR CERTIFICATE OF AMENDMENT OF FOR-PROFIT CORPORATION. (a) In addition to the statements required by Section 3.053, a certificate of amendment for a for-profit corporation must state: (1) if the amendment provides for an exchange, reclassification, or cancellation of issued shares, the manner in which the exchange, reclassification, or cancellation of the issued shares will be effected if the manner is not specified in the amendment; and (2) if the amendment effects a change in the amount of stated capital, the manner in which the change in the amount of stated capital is effected and the amount of stated capital expressed in dollar terms as changed by the amendment. (b) An officer shall sign the certificate of amendment on behalf of the for-profit corporation. If shares of the for-profit corporation have not been issued and the certificate of amendment is adopted by the board of directors, a majority of the directors may sign the certificate of amendment on behalf of the for-profit corporation. (TBCA 4.04.A, B (part).) Sec. 3.055. SUPPLEMENTAL PROVISIONS FOR CERTIFICATE OF AMENDMENT OF REAL ESTATE INVESTMENT TRUST. (a) In addition to the statements required by Section 3.053, a certificate of amendment for a real estate investment trust must state: (1) if the amendment provides for an exchange, reclassification, or cancellation of issued shares, the manner in which the exchange, reclassification, or cancellation of the issued shares will be effected if the manner is not specified in the amendment; and (2) if the amendment effects a change in the amount of stated capital, the manner in which the change in the amount of stated capital is effected and the amount of stated capital expressed in dollar terms as changed by the amendment. (b) If shares of the real estate investment trust have not been issued and the certificate of amendment is adopted by the trust managers, a majority of the trust managers may execute the certificate of amendment on behalf of the real estate investment trust. (TREITA 22.40(A), (B) (part).) Sec. 3.056. EFFECT OF FILING OF CERTIFICATE OF AMENDMENT. (a) An amendment to a certificate of formation takes effect when the filing of the certificate of amendment takes effect as provided by Chapter 4. (b) An amendment to a certificate of formation does not affect: (1) an existing cause of action in favor of or against the entity for which the certificate of amendment is sought; (2) a pending suit to which the entity is a party; or (3) an existing right of a person other than an existing owner. (c) If the name of an entity is changed by amendment, an action brought by or against the entity in the former name of the entity does not abate because of the name change. (TBCA 4.06; TLLCA 3.08; TNPCA 4.05; TPAA 17; TREITA 22.60; TRLPA 2.02(e).) Sec. 3.057. RIGHT TO RESTATE CERTIFICATE OF FORMATION. (a) A filing entity may restate its certificate of formation. (b) An amendment effected by a restated certificate of formation must comply with Section 3.051(b). (TBCA 4.07.A (part); TLLCA 3.09.A (part); TNPCA 4.06.A (part); TREITA 22.70(A) (part); TRLPA 2.10(a), (e).) Sec. 3.058. PROCEDURES TO RESTATE CERTIFICATE OF FORMATION. (a) The procedure to adopt a restated certificate of formation is governed by the title of this code that applies to the entity. (b) A filing entity that restates its certificate of formation shall sign and file, in the manner required by Chapter 4, a restated certificate of formation and accompanying statements complying with Section 3.059. (TBCA 4.07.A (part), D; TLLCA 3.09.A (part), D; TNPCA 4.06.A (part), D; TREITA 22.70(A) (part); TRLPA 2.10(b) (part).) Sec. 3.059. RESTATED CERTIFICATE OF FORMATION. (a) A restated certificate of formation must accurately state the text of the previous certificate of formation, regardless of whether the certificate of formation is an original, corrected, or restated certificate, and include: (1) each previous amendment to the certificate being restated that is carried forward; and (2) each new amendment to the certificate being restated. (b) A restated certificate of formation may omit: (1) the name and address of each organizer other than the name and address of each general partner of a limited partnership or trust manager of a real estate investment trust; and (2) any other information that may be omitted under the provisions of this code applicable to the filing entity. (c) A restated certificate of formation that does not make new amendments to the certificate of formation being restated must be accompanied by: (1) a statement that the restated certificate of formation accurately states the text of the certificate of formation being restated, as amended, restated, and corrected, except for information omitted under Subsection (b); and (2) any other information required by other provisions of this code applicable to the filing entity. (d) A restated certificate of formation that makes new amendments to the certificate of formation being restated must: (1) be accompanied by a statement that each new amendment has been made in accordance with this code; (2) identify by reference or description each added, altered, or deleted provision; (3) be accompanied by a statement that each amendment has been approved in the manner required by this code and the governing documents of the entity; (4) be accompanied by a statement that the restated certificate of formation: (A) accurately states the text of the certificate of formation being restated and each amendment to the certificate of formation being restated that is in effect, as further amended by the restated certificate of formation; and (B) does not contain any other change in the certificate of formation being restated except for information omitted under Subsection (b); and (5) include any other information required by the title of this code applicable to the entity. (TBCA 4.07.A (part), B (part), C (part); TLLCA 3.09.A (part), B (part), C (part); TNPCA 4.06.A (part), B (part), C (part); TREITA 22.70(A) (part), (B) (part), (C) (part); TRLPA 2.10(b) (part), (c).) Sec. 3.060. SUPPLEMENTAL PROVISIONS FOR RESTATED CERTIFICATE OF FORMATION FOR FOR-PROFIT CORPORATION. (a) In addition to the provisions authorized or required by Section 3.059, a restated certificate of formation for a for-profit corporation may update the current number of directors and the names and addresses of the persons serving as directors. (b) An officer shall sign the restated certificate of formation on behalf of the corporation. If shares of the corporation have not been issued and the restated certificate of formation is adopted by the board of directors, the majority of the directors may sign the restated certificate of formation on behalf of the corporation. (TBCA 4.07.B (part), C (part).) Sec. 3.061. SUPPLEMENTAL PROVISIONS FOR RESTATED CERTIFICATE OF FORMATION FOR NONPROFIT CORPORATION. (a) In addition to the provisions authorized or required by Section 3.059, a restated certificate of formation for a nonprofit corporation may update the current number of directors and the names and addresses of the persons serving as directors. (b) If the nonprofit corporation is a church in which management is vested in the church's members under Section 22.202, and the original certificate of formation is not required to contain a statement to that effect, any restated certificate of formation for the church must contain a statement to that effect in addition to the information required by Section 3.059. (TNPCA 4.06.B (part), C (part).) Sec. 3.062. SUPPLEMENTAL PROVISIONS FOR RESTATED CERTIFICATE OF FORMATION FOR REAL ESTATE INVESTMENT TRUST. In addition to the provisions authorized or required by Section 3.059, a restated certificate of formation for a real estate investment trust may update the current number of trust managers and the names and addresses of the persons serving as trust managers. (TREITA 22.70(B) (part), (C) (part).) Sec. 3.063. EFFECT OF FILING OF RESTATED CERTIFICATE OF FORMATION. (a) A restated certificate of formation takes effect when the filing of the restated certificate of formation takes effect as provided by Chapter 4. (b) On the date the restated certificate of formation takes effect, the original certificate of formation and each prior amendment or restatement of the certificate of formation is superseded and the restated certificate of formation is the effective certificate of formation. (c) Sections 3.056(b) and (c) apply to an amendment effected by a restated certificate of formation. (TBCA 4.07.F; TLLCA 3.09.F; TNPCA 4.06.F; TREITA 22.70(E); TRLPA 2.10(d).)
[Sections 3.064-3.100 reserved for expansion]
SUBCHAPTER C. GOVERNING PERSONS AND OFFICERS
Sec. 3.101. GOVERNING AUTHORITY. Subject to the title of this code that governs the domestic entity and the governing documents of the domestic entity, the governing authority of a domestic entity manages and directs the business and affairs of the domestic entity. (TBCA 2.31 (part); TLLCA 2.12 (part); TNPCA 2.14.A (part); TRLPA 4.03(a); TRPA 4.01(d) (part).) Sec. 3.102. RIGHTS OF GOVERNING PERSONS IN CERTAIN CASES. (a) In discharging a duty or exercising a power, a governing person, including a governing person who is a member of a committee, may, in good faith and with ordinary care, rely on information, opinions, reports, or statements, including financial statements and other financial data, concerning a domestic entity or another person and prepared or presented by: (1) an officer or employee of the entity; (2) legal counsel; (3) a certified public accountant; (4) an investment banker; (5) a person who the governing person reasonably believes possesses professional expertise in the matter; or (6) a committee of the governing authority of which the governing person is not a member. (b) A governing person may not in good faith rely on the information described by Subsection (a) if the governing person has knowledge of a matter that makes the reliance unwarranted. (TBCA 2.41.D; TNPCA 2.26.C (part), 2.28.B (part), C; TREITA 15.10(C), (D).) Sec. 3.103. OFFICERS. (a) Officers of a domestic entity may be elected or appointed in accordance with the governing documents of the entity or by the governing authority of the entity unless prohibited by the governing documents. (b) An officer of an entity shall perform the duties in the management of the entity and has the authority as provided by the governing documents of the entity or the governing authority that elects or appoints the officer. (c) A person may simultaneously hold any two or more offices of an entity unless prohibited by this code or the governing documents of the entity. (CAA 22 (part); TBCA 2.42.A (part), B; TLLCA 2.21.A, B; TNPCA 2.20.A (part), B; TPAA 9(G) (part); TREITA 4.10(F) (part).) Sec. 3.104. REMOVAL OF OFFICERS. (a) Unless otherwise provided by the governing documents of a domestic entity, an officer may be removed for or without cause by the governing authority or as provided by the governing documents of the entity. The removal of an officer does not prejudice any contract rights of the person removed. (b) Election or appointment of an officer does not by itself create contract rights. (TBCA 2.43; TNPCA 2.21; TREITA 4.10(F) (part).) Sec. 3.105. RIGHTS OF OFFICERS IN CERTAIN CASES. (a) In discharging a duty or exercising a power, an officer of a domestic entity may, in good faith and ordinary care, rely on information, opinions, reports, or statements, including financial statements and other financial data, concerning the entity or another person and prepared or presented by: (1) another officer or an employee of the entity; (2) legal counsel; (3) a certified public accountant; (4) an investment banker; or (5) a person who the officer reasonably believes possesses professional expertise in the matter. (b) An officer may not in good faith rely on the information described by Subsection (a) if the officer has knowledge of a matter that makes the reliance unwarranted. (TBCA 2.42.C; TNPCA 2.20.D (part), E.)
[Sections 3.106-3.150 reserved for expansion]
SUBCHAPTER D. RECORDKEEPING OF FILING ENTITIES
Sec. 3.151. BOOKS AND RECORDS FOR ALL FILING ENTITIES. (a) Each filing entity shall keep: (1) books and records of accounts; (2) minutes of the proceedings of the owners or members or governing authority of the filing entity and committees of the owners or members or governing authority of the filing entity; (3) at its registered office or principal place of business, or at the office of its transfer agent or registrar, a current record of the name and mailing address of each owner or member of the filing entity; and (4) other books and records as required by the title of this code governing the entity. (b) The books, records, minutes, and ownership or membership records of any filing entity, including those described in Subsection (a)(4), may be in written form or another form capable of being converted into written form within a reasonable time. (c) The records required by Subsection (a)(2) need not be maintained by a limited partnership or a limited liability company except to the extent required by its governing documents. (TBCA 2.44.A (part); TLLCA 2.22.A (part), B; TNPCA 2.23.A; TREITA 18.10(A); TRLPA 1.07(a) (part), (b).) Sec. 3.152. GOVERNING PERSON'S RIGHT OF INSPECTION. (a) A governing person of a filing entity may examine the entity's books and records maintained under Section 3.151 and other books and records of the entity for a purpose reasonably related to the governing person's service as a governing person. (b) A court may require a filing entity to open the books and records of the filing entity, including the books and records maintained under Section 3.151, to permit a governing person to inspect, make copies of, or take extracts from the books and records on a showing by the governing person that: (1) the person is a governing person of the entity; (2) the person demanded to inspect the entity's books and records; (3) the person's purpose for inspecting the entity's books and records is reasonably related to the person's service as a governing person; and (4) the entity refused the person's good faith demand to inspect the books and records. (c) A court may award a governing person attorney's fees and any other proper relief in a suit to require a filing entity to open its books and records under Subsection (b). (d) This section does not apply to limited partnerships. Section 153.552 applies to limited partnerships. (TBCA 2.44.B.) Sec. 3.153. RIGHT OF EXAMINATION BY OWNER OR MEMBER. Each owner or member of a filing entity may examine the books and records of the filing entity maintained under Section 3.151 and other books and records of the filing entity to the extent provided by the governing documents of the entity and the title of this code governing the filing entity. (TBCA 2.44.C; TLLCA 2.22.D, E; TNPCA 2.23.B; TREITA 18.10(B).)
[Sections 3.154-3.200 reserved for expansion]
SUBCHAPTER E. CERTIFICATES REPRESENTING OWNERSHIP INTEREST
Sec. 3.201. CERTIFICATED OR UNCERTIFICATED OWNERSHIP INTEREST; APPLICABILITY. (a) Ownership interests in a domestic entity may be certificated or uncertificated. (b) The ownership interests in a for-profit corporation, real estate investment trust, or professional corporation must be certificated unless the governing documents of the entity or a resolution adopted by the governing authority of the entity states that the ownership interests are uncertificated. If a domestic entity changes the form of its ownership interests from certificated to uncertificated, a certificated ownership interest subject to the change becomes an uncertificated ownership interest only after the certificate is surrendered to the domestic entity. (c) Ownership interests in a domestic entity, other than a domestic entity described by Subsection (b), are uncertificated unless this code or the governing documents of the domestic entity state that the interests are certificated. (d) Sections 3.202-3.205 do not apply to a partnership or a limited liability company except to the extent that the governing documents of the partnership or limited liability company specify. (e) The governing documents of a partnership or a limited liability company may: (1) provide that an owner's ownership interest may be evidenced by a certificate of ownership interest issued by the entity; (2) provide for the assignment or transfer of ownership interests represented by certificates; and (3) make other provisions with respect to the certificate. (TBCA 2.19.A (part); TLLCA 4.05.B; TREITA 7.20(A) (part); TRLPA 7.02(c); TRPA 5.02(b).) Sec. 3.202. FORM AND VALIDITY OF CERTIFICATES; ENFORCEMENT OF ENTITY'S RIGHTS. (a) A certificate representing the ownership interest in a domestic entity may contain an impression of the seal of the entity, if any. A facsimile of the entity's seal may be printed or lithographed on the certificate. (b) If a domestic entity is authorized to issue ownership interests of more than one class or series, each certificate representing ownership interests that is issued by the entity must conspicuously state on the front or back of the certificate: (1) the designations, preferences, limitations, and relative rights of the ownership interests of each class or series to the extent they have been determined and the authority of the governing authority to make those determinations as to subsequent series; or (2) that the information required by Subdivision (1) is stated in the domestic entity's governing documents and that the domestic entity, on written request to the entity's principal place of business or registered office, will provide a free copy of that information to the record holder of the certificate. (c) A certificate representing ownership interests must state on the front of the certificate: (1) that the domestic entity is organized under the laws of this state; (2) the name of the person to whom the certificate is issued; (3) the number and class of ownership interests and the designation of the series, if any, represented by the certificate; and (4) if the ownership interests are shares, the par value of each share represented by the certificate, or a statement that the shares are without par value. (d) A certificate representing ownership interests that is subject to a restriction, placed by or agreed to by the domestic entity under this code, or otherwise contained in its governing documents, on the transfer or registration of the transfer of the ownership interests must: (1) conspicuously state or provide a summary of the restriction on the front of the certificate; (2) state the restriction on the back of the certificate and conspicuously refer to that statement on the front of the certificate; or (3) conspicuously state on the front or back of the certificate that a restriction exists pursuant to a specified document and: (A) that the domestic entity, on written request to the entity's principal place of business, will provide a free copy of the document to the certificate record holder; or (B) if the document has been filed in accordance with this code, that the document: (i) is on file with the secretary of state or, in the case of a real estate investment trust, with the county clerk of the county in which the real estate investment trust's principal place of business is located; and (ii) contains a complete statement of the restriction. (e) A domestic entity that fails to provide to the record holder of a certificate within a reasonable time a document as required by Subsection (d)(3)(A) may not enforce the entity's rights under the restriction imposed on the certificated ownership interests. (TBCA 2.19.A (part), B (part), C, G; TREITA 7.20(A) (part), (B), (C), (F), (G).) Sec. 3.203. SIGNATURE REQUIREMENT. (a) The managerial official or officials of a domestic entity authorized by the governing documents of the entity to sign certificated ownership interests of the entity must sign any certificate representing an ownership interest in the entity. (b) A certificated ownership interest that contains the manual or facsimile signature of a person who is no longer a managerial official of a domestic entity when the certificate is issued may be issued by the entity in the same manner and with the same effect as if the person had remained a managerial official. (TBCA 2.19.A (part); TREITA 7.20(A) (part).) Sec. 3.204. DELIVERY REQUIREMENT. A domestic entity shall deliver a certificate representing a certificated ownership interest to which the owner is entitled. (TBCA 2.19.A (part); TREITA 7.20(A) (part).) Sec. 3.205. NOTICE FOR UNCERTIFICATED OWNERSHIP INTEREST. (a) Except as provided by Subsection (c) and in accordance with Chapter 8, Business & Commerce Code, after issuing or transferring an uncertificated ownership interest, a domestic entity shall notify the owner of the ownership interest in writing of any information required under this subchapter to be stated on a certificate representing the ownership interest. (b) Except as otherwise expressly provided by law, the rights and obligations of the owner of an uncertificated ownership interest are the same as the rights and obligations of the owner of a certificated ownership interest of the same class and series. (c) A domestic entity is not required to send a notice under Subsection (a) if: (1) the required information is included in the governing documents of the entity; and (2) the owner of the uncertificated ownership interest is provided with a copy of the governing documents. (TBCA 2.19.D (part); TREITA 7.20(D) (part).)
CHAPTER 4. FILINGS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 4.001. SIGNATURE AND DELIVERY. (a) A filing instrument must be: (1) signed by a person authorized by this code to act on behalf of the entity in regard to the filing instrument; and (2) delivered to the secretary of state in person or by mail, courier, facsimile or electronic transmission, or any other comparable form of delivery. (b) A person authorized by this code to sign a filing instrument for an entity is not required to show evidence of the person's authority as a requirement for filing. (TBCA 2.06.B (part), C (part), D, 2.07.B (part), 2.10.B (part), 2.10-1.B (part), 2.12.C(2) (part), (3) (part), 2.13.D (part), E (part), 2.22.E(2) (part), 3.01, 3.03.A (part), C (part), 4.05.A (part), 4.07.D (part), 4.10.B (part), C (part), 4.11.B (part), C (part), 4.12.B (part), C (part), 4.14.B (part), C (part), 5.03.L (part), 5.04.A (part), B, 5.16.B (part), C, 5.17.E (part), 5.18.A (part), B, 6.01 (part), 6.02, 6.05.B (part), 6.07.A (part), 7.01.E (part), 7.12.E (part), 8.06.A (part), 8.09.A (part), B (part), D (part), 8.13.A, B, D, 8.14.A (part), B, C, 8.15.A (part), 8.16.E (part), 10.01.B (part), 10.03.A (part), B (part), 12.22.B (part), 12.34.B (part); TLLCA 2.04.B (part), 2.06.B (part), D (part), 2.07.B (part), 3.01, 3.03.A (part), C (part), 3.06.A, 3.07.A (part), 3.09.D (part), 6.08.A (part), 7.06.A (part), 7.08.A, B, D, 7.09.A (part), B, 7.10.A (part), 7.11.E (part), 8.12.A, B, 9.01.B (part), 9.03.B, 10.03.A (part), B (part), 10.05.B (part), C (part), 10.09.B, 11.01.A (part), 11.07.A (part); TNPCA 2.04A.B, 2.06.D (part), 2.06A.A (part), B (part), 3.03.A (part), 4.03.A (part), 4.04.A (part), 4.06.D (part), 5.04.A (part), B (part), 6.05.A (part), 6.06.A (part), 7.01.E (part), 8.05.A (part), 8.08.A (part), B (part), D (part), 8.12.A, B, D, 8.14.A (part), 8.15.E (part), 10.07.B (part), C (part); TMCLA 7.01, 7.03.A (part); TPAA 8(E), 12(A) (part), 15 (part), 16(A) (part), 18 (part), 19(A) (part), 21 (part); TPCA 4(a) (part), 19A(a); TRLPA 1.05(a), (b) (part), (d) (part), 1.06(b) (part), (c) (part), (f) (part), (h) (part), (i) (part), 2.01(a) (part), 2.02(a) (part), (f) (part), 2.03(a) (part), 2.04(a), (b), 2.06(c) (part), 2.07(a) (part), 2.10(b) (part), 2.11(d) (part), (e) (part), 2.12.B, 2.14(b) (part), 2.15(e) (part), 9.02(a) (part), 9.06 (part), 9.09, 13.05(a) (part), (b) (part), 13.07(a) (part), 13.09(a) (part); TRPA 3.08(b) (part), (e), 9.01(a) (part), (b) (part), 9.02(d) (part), (e) (part), 9.05(e) (part), 10.02(a) (part), (b), (c) (part), (f) (part), (g) (part), (k) (part), 10.05(b) (part), (c) (part), (f) (part), (h) (part), (i) (part); TREITA 3.10(A) (part), (B) (part), 5.10(B) (part), (C) (part), (F) (part), 7.40(F) (part), 19.20(A) (part), (B), 22.40(A), 22.50, 22.70(D), 23.40(A) (part), (B), 26.10(C) (part), (D) (part), 27.10(A) (part), (B).) Sec. 4.002. ACTION BY SECRETARY OF STATE. (a) If the secretary of state finds that a filing instrument delivered under Section 4.001 conforms to the provisions of this code that apply to the entity and to applicable rules adopted under Section 12.001 and that all required fees have been paid, the secretary of state shall: (1) file the instrument by accepting it into the filing system adopted by the secretary of state and assigning the instrument a date of filing; and (2) deliver a written or electronic acknowledgment of filing to the entity or its representative. (b) If a duplicate copy of the filing instrument is delivered to the secretary of state, on accepting the filing instrument, the secretary of state shall return the duplicate copy, endorsed with the word "Filed" and the month, day, and year of filing, to the entity or its representative with the acknowledgment of filing. (TBCA 2.06.B (part), 2.10.B (part), D (part), 2.10-1.B (part), 2.12.C(3) (part), 2.13.E (part), 2.22.E(2) (part), 3.03.A, B, C (part), 4.05, 4.07.D (part), E, 4.10.C, 4.11.C, 4.12.C, 5.03.L (part), 5.04.C, 5.17.E (part), 5.18.C, 6.01 (part), 6.05.C, 6.07.A (part), B (part), 7.01.E (part), 8.06.A (part), B, 8.09.B (part), D (part), 8.15.A (part), 8.16.D (part), E (part), 10.01.B (part), 10.03.B (part), 12.22.C, 12.34.C; TLLCA 2.04.B (part), 2.06.B (part), 2.07.B (part), 3.03, 3.07, 3.09.D, E, 6.08.A (part), B (part), 7.06.A (part), B, 7.10, 7.11.D (part), 8.12.A, B, 10.03.B, 10.09.C, 11.07.A (part), B; TMCLA 7.03, 7.08; TNPCA 2.06.B (part), D (part), 2.06A.B (part), 3.03.A (part), B, 4.04.A (part), B, 4.06.D (part), E, 5.04.B (part), C, 6.06.A (part), B (part), 7.01.E (part), 8.05.A (part), B, 8.08.B (part), D (part), 8.14.A (part), B (part), 8.15.D (part), E (part), 9.01.E, 9.02.G, 10.07.C (part); TPAA 12(A) (part), (B), 16(A) (part), (B), 19(A) (part), (B); TPCA 19A(a) (part), (b); TRLPA 1.06(c) (part), (g) (part), (i) (part), 2.07(a) (part), (c), 2.11(e) (part), 9.03(a), 9.09, 13.04(c), 13.05(d) (part), 13.07(b), 13.08(a) (part), 13.09(b); TRPA 3.08(b)(8), (9) (part), (16), (18), 9.02(e) (part), 9.05(f), 10.02(h), (i) (part), 10.05(c) (part), (e), (g), (i) (part).) Sec. 4.003. FILING OR ISSUANCE OF REPRODUCTION OR FACSIMILE. (a) A photographic, photostatic, facsimile, electronic, or similar reproduction of a filing instrument, signature, acknowledgment of filing, or communication may be filed or issued in place of: (1) an original filing instrument; (2) an original signature on a filing instrument; or (3) an original acknowledgment of filing or other written communication from the secretary of state relating to a filing instrument. (b) To the extent any filing or action on a filing conforms to this subchapter, a filing instrument or an acknowledgment of filing issued by the secretary of state is not required to be on paper or to be reduced to printed form. (TLLCA 8.12.B; TMCLA 7.07; TRLPA 9.02(a) (part), 13.04; TRPA 3.08(b)(12), (16), (17), (18), 10.02(l).) Sec. 4.004. TIME FOR FILING. Unless this code prescribes a specific period for filing, an entity shall promptly file each filing instrument that this code requires the entity to file. (TBCA 9.07.A; TLLCA 8.07.) Sec. 4.005. CERTIFICATES AND CERTIFIED COPIES. (a) A court, public office, or official body shall accept a certificate issued as provided by this code by the secretary of state or a copy of a filing instrument accepted by the secretary of state for filing as provided by this code that is certified by the secretary of state as prima facie evidence of the facts stated in the certificate or instrument. (b) A court, public office, or official body may record a certificate or certified copy described by Subsection (a). (c) A court, public office, or official body shall accept a certificate issued under an official seal by the secretary of state as to the existence or nonexistence of facts that relate to an entity that would not appear from a certified copy of a filing instrument as prima facie evidence of the existence or nonexistence of the facts stated in the certificate. (TBCA 9.05; TLLCA 8.05; TNPCA 9.06.) Sec. 4.006. FORMS ADOPTED BY SECRETARY OF STATE. (a) The secretary of state may adopt forms for a filing instrument or a report authorized or required by this code to be filed with the secretary of state. (b) A person is not required to use a form adopted by the secretary of state unless this code expressly requires use of that form. (TBCA 9.06; TLLCA 8.06; TNPCA 9.07; TPAA 21 (part); TRLPA 13.05(b) (part), (d) (part); TRPA 3.08(b)(10), 10.02(j).) Sec. 4.007. LIABILITY FOR FALSE FILING INSTRUMENTS. (a) 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 filing instrument; or (B) filed filing instrument that constitutes an offense under Section 4.008; or (2) the person reasonably relies on: (A) a false statement of material fact in a filed filing instrument; or (B) the omission in a filed filing instrument of a material fact required by this code to be included in the instrument. (b) A person may recover under Subsection (a) from: (1) each person who forged the forged filing instrument or signed the filing instrument and knew when the instrument was signed of the false statement or omission; (2) any managerial official of the entity who directed the signing and filing of the filing instrument who knew or should have known when the instrument was signed or filed of the false statement or omission; or (3) the entity that authorizes the filing of the filing instrument. (TRLPA 2.08, 9.05.) Sec. 4.008. OFFENSE; PENALTY. (a) A person commits an offense if the person signs or directs the filing of a filing instrument that the person knows is materially false with intent that the filing instrument be delivered on behalf of an entity to the secretary of state for filing. (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. (TBCA 10.02; TLLCA 9.02; TNPCA 9.03A; TPAA 26; TRPA 3.08(b)(13), 10.02(m).) Sec. 4.009. FILINGS BY REAL ESTATE INVESTMENT TRUST. (a) A filing instrument relating to a domestic real estate investment trust must be filed with the county clerk of the county in which the domestic real estate investment trust's principal place of business is located. (b) Subject to other state law governing the requirements for filing instruments with a county clerk, this chapter applies to a filing by a domestic real estate investment trust, except that in relation to such a filing a reference in this chapter to the secretary of state is considered to be a reference to the county clerk of the county in which the domestic real estate investment trust's principal place of business is located. (c) A filing instrument relating to a foreign real estate investment trust must be filed with the secretary of state and not a county clerk. (TREITA 3.10(B) (part), 19.20(B), 22.50, 28.10(A).)
[Sections 4.010-4.050 reserved for expansion]
SUBCHAPTER B. WHEN FILINGS TAKE EFFECT
Sec. 4.051. GENERAL RULE. A filing instrument submitted to the secretary of state takes effect on filing, except as permitted by Section 4.052 or as provided by the provisions of this code that apply to the entity making the filing or other law. (TBCA 2.10.C, 2.10-1.C, 2.12.C(4), 2.13.F, 2.22.F, 3.03.C (part), 3.04.A, B, 4.06.A, 4.07.F, 4.10.D, 4.11.D, 4.12.D, 4.14.C(7), 5.03.L (part), 5.05, 5.16.D, 5.19, 6.01.A(3) (part), 6.05.D (part), 6.07.B (part), 7.01.D (part), E (part), 8.07, 8.09.C, D(2) (part), 8.13.D, 8.15.B (part), 8.16.E (part), 9.14.C(4), 12.22.D, 12.34.D; TLLCA 2.06.C, D(2) (part), 2.07.C, 3.03.C (part), 3.04.A, B, 3.08.A, 3.09.F, 6.08.B (part), 7.07, 7.08.D, 7.10.B, 7.11.D (part), E (part), 9.03.F, 10.03.C, 10.05.C, 10.10; TNPCA 2.06.A, C, D(2) (part), 3.04, 4.05.A, 4.06.F, 5.05, 6.06.B (part), 7.01.E (part), 8.06, 8.08.C, D(2) (part), 8.12.D, 8.14.B (part), 8.15.E (part); TPAA 13, 17(A), 20; TRLPA 1.05(c), 1.06(d), (e), (g) (part), (i) (part), 2.01(b), 2.02(e), 2.03(c), 2.06(d), 2.07(b), 2.10(d), 2.11(f), 2.15(f), 9.09, 13.02(c) (part), 13.07(b), 13.08(b) (part); TRPA 3.08(b)(4), (6) (part), (7) (part), 9.01(f), 9.02(f), 9.05(g), 10.02(d), (f) (part), (g) (part), 10.05(d), (e), (f), (i) (part); TREITA 3.10(B) (part), 5.10(E), 7.40(F)(4), 19.20(C), 22.60(A), 22.70(E), 23.50, 26.10(D)(6).) Sec. 4.052. DELAYED EFFECTIVENESS OF CERTAIN FILINGS. Except as provided by Section 4.058, a filing instrument may take effect after the time the instrument would otherwise take effect as provided by this code for the entity filing the instrument and: (1) at a specified date and time; or (2) on the occurrence of a future event or fact, including an act of any person. (TBCA 10.03.A (part); TLLCA 9.03.A(1), (2) (part); TNPCA 10.07.A, B (part); TRLPA 2.12.A (part); TREITA 27.10(A) (part), (F); TRPA 3.08(b)(4), 9.06, 10.02(d).) Sec. 4.053. CONDITIONS FOR DELAYED EFFECTIVENESS. (a) The date and time at which a filing instrument takes effect is delayed if the instrument clearly and expressly states, in addition to any other required statement or information: (1) the specific date and time at which the instrument takes effect; or (2) if the instrument takes effect on the occurrence of a future event or fact that may occur: (A) the manner in which the event or fact will cause the instrument to take effect; and (B) the date of the 90th day after the date the instrument is signed. (b) If a filing instrument is to take effect on a specific date and time other than that provided by this code: (1) the date may not be later than the 90th day after the date the instrument is signed; and (2) the specific time at which the instrument is to take effect may not be specified as "12:00 a.m." or "12:00 p.m." (TBCA 10.03.A (part); TLLCA 9.03.A(2), (3); TNPCA 10.07.B (part); TRLPA 2.12.A (part); TREITA 27.10(A) (part).) Sec. 4.054. DELAYED EFFECTIVENESS ON FUTURE EVENT OR FACT. A filing instrument that is to take effect on the occurrence of a future event or fact, other than the passage of time, and for which the statement required by Section 4.055 is filed within the prescribed time, takes effect on the date and time at which the last specified event or fact occurs or the date and time at which a condition is satisfied or waived. (TBCA 10.03.D (part); TLLCA 9.03.D(1) (part); TNPCA 10.07.E (part); TRLPA 2.12.D (part); TREITA 27.10(D) (part); TRPA 9.06.) Sec. 4.055. STATEMENT OF EVENT OR FACT. An entity that files a filing instrument that takes effect on the occurrence of a future event or fact, other than the passage of time, must sign and file as provided by Subchapter A, not later than the 90th day after the date the filing instrument is filed, a statement that: (1) confirms that each event or fact on which the effect of the instrument is conditioned has been satisfied or waived; and (2) states the date and time on which the condition was satisfied or waived. (TBCA 10.03.A (part); TLLCA 9.03.A(4); TNPCA 10.07.B (part); TRLPA 2.12.A (part); TREITA 27.10(A) (part); TRPA 9.06.) Sec. 4.056. FAILURE TO FILE STATEMENT. (a) If the effect of a filing instrument is conditioned on the occurrence of a future event or fact, other than the passage of time, and the statement required by Section 4.055 is not filed before the expiration of the prescribed time, the filing instrument does not take effect. This section does not preclude the filing of a subsequent filing instrument required by this code to make the event or transaction evidenced by the original filing instrument effective. (b) If the effect of a filing instrument is conditioned on the occurrence of a future event or fact, other than the passage of time, and the specified event or fact does not occur and is not waived, the parties to the filing instrument must sign and file a certificate of abandonment as provided by Section 4.057. (TBCA 10.03.E; TLLCA 9.03.E; TNPCA 10.07.F; TRLPA 2.12.E; TREITA 27.10(E).) Sec. 4.057. ABANDONMENT BEFORE EFFECTIVENESS. (a) The parties to a filing instrument may abandon the filing instrument if the instrument has not taken effect. (b) To abandon a filing instrument the parties to the instrument must file with the filing officer a certificate of abandonment. (c) A certificate of abandonment must: (1) be signed on behalf of each entity that is a party to the action or transaction by the person authorized by this code to act on behalf of the entity; (2) state the nature of the filing instrument to be abandoned, the date of the instrument, and the parties to the instrument; and (3) state that the filing instrument has been abandoned in accordance with the agreement of the parties. (d) On the filing of the certificate of abandonment, the action or transaction evidenced by the original filing instrument is abandoned and may not take effect. (e) If in the interim before a certificate of abandonment is filed the name of an entity that is a party to the action or transaction becomes the same as or deceptively similar to the name of another entity already on file or reserved or registered under this code, the filing officer may not file the certificate of abandonment unless the entity by or for whom the certificate is filed changes its name in the manner provided by this code for that entity. (TLLCA 9.03.F; TRLPA 2.12.F; 1 T.A.C. 79.82.) Sec. 4.058. DELAYED EFFECTIVENESS NOT PERMITTED. The effect of the following filing instruments may not be delayed: (1) a reservation of name as provided by Subchapter C, Chapter 5; (2) a registration of name as provided by Subchapter D, Chapter 5; (3) a statement of event or fact as provided by Section 4.055; or (4) a certificate of abandonment as provided by Section 4.057. (TBCA 10.03.A (part); TLLCA 9.03.A(1); TNPCA 10.07.A.) Sec. 4.059. ACKNOWLEDGMENT OF FILING WITH DELAYED EFFECTIVENESS. (a) An acknowledgment of filing issued or other action taken by the secretary of state affirming the filing of a filing instrument that has a specific delayed effective date must state the date and time at which the instrument takes effect. (b) An acknowledgment of filing issued or other action taken by the secretary of state affirming the filing of a filing instrument the effect of which is delayed until the occurrence of a future event or fact must: (1) state that the effective date and time of the filing instrument is conditioned on the occurrence of a future event or fact as described in the filing instrument; or (2) otherwise indicate that the effective date and time of the instrument is conditioned on the occurrence of a future event or fact. (TBCA 10.03.C, D (part); TLLCA 9.03.C, D(1) (part), (2); TNPCA 10.07.D, E (part); TRLPA 2.12.C, D (part).)
[Sections 4.060-4.100 reserved for expansion]
SUBCHAPTER C. CORRECTION AND AMENDMENT
Sec. 4.101. CORRECTION OF FILINGS. (a) A filing instrument that has been filed with the secretary of state that is an inaccurate record of the event or transaction evidenced in the instrument, that contains an inaccurate or erroneous statement, or that was defectively or erroneously signed, sealed, acknowledged, or verified may be corrected by filing a certificate of correction. (b) A certificate of correction must be signed by the person authorized by this code to act on behalf of the entity. (TLLCA 8.12.B; TMCLA 7.01; TRLPA 2.13(a), 9.05.) Sec. 4.102. LIMITATION ON CORRECTION OF FILINGS. A filing instrument may be corrected to contain only those statements that this code authorizes or requires to be included in the original instrument. A certificate of correction may not alter, add, or delete a statement that by its alteration, addition, or deletion would have caused the secretary of state to determine the filing instrument did not conform to this code at the time of filing. (1 T.A.C. 79.24(a).) Sec. 4.103. CERTIFICATE OF CORRECTION. The certificate of correction must: (1) state the name of the entity; (2) identify the filing instrument to be corrected by description and date of filing with the secretary of state; (3) identify the inaccuracy, error, or defect to be corrected; and (4) state in corrected form the portion of the filing instrument to be corrected. (TLLCA 8.12.B; TMCLA 7.02; TRLPA 2.13(b).) Sec. 4.104. FILING CERTIFICATE OF CORRECTION. The certificate of correction shall be filed with and acted on by the secretary of state as provided by Subchapter A. On filing, the secretary of state shall deliver to the entity or its representative an acknowledgment of the filing. (TLLCA 8.12.B; TMCLA 7.03.) Sec. 4.105. EFFECT OF CERTIFICATE OF CORRECTION. (a) After the secretary of state files the certificate of correction, the filing instrument is considered to have been corrected on the date the filing instrument was originally filed, except as provided by Subsection (b). (b) As to a person who is adversely affected by the correction, the filing instrument is considered to have been corrected on the date the certificate of correction is filed. (c) An acknowledgment of filing or a similar instrument issued by the secretary of state before a filing instrument is corrected, with respect to the effect of filing the original filing instrument, applies to the corrected filing instrument as of the date the corrected filing instrument is considered to have been filed under this section. (TLLCA 8.12.B; TMCLA 7.04; TRLPA 2.13(c).) Sec. 4.106. AMENDMENT OF FILINGS. A filing instrument that an entity files with the secretary of state may be amended or supplemented to the extent permitted by the provisions of this code that apply to that entity. (TBCA 4.01.A, 4.07.A (part), 4.14.A (part), 8.13.A, B, D, 12.13.A (part), 12.21.A (part), 13.04.A (part); TNPCA 4.01, 4.06.A (part), 8.12.A, B, D; TPAA 14; TLLCA 3.05.A, 3.09.A (part), 7.08.A, B, D; TRLPA 2.02(a) (part), (b), (c), (d), 2.06(a) (part), 2.10(a), 9.05; TRPA 3.08(b)(11) (part); TREITA 22.10(A), 22.70(A) (part), 26.10(A) (part).)
[Sections 4.107-4.150 reserved for expansion]
SUBCHAPTER D. FILING FEES
Sec. 4.151. FILING FEES: ALL ENTITIES. The secretary of state shall impose the following fees: (1) for filing a certificate of correction, $15; (2) for filing an application for reservation or registration of a name, $40; (3) for filing a notice of transfer of a name reservation or registration, $15; (4) for filing an application for renewal of registration of a name, $40; (5) for filing a certificate of merger or conversion, other than a filing on behalf of a nonprofit corporation, $300 plus, with respect to a merger, any fee imposed for filing a certificate of formation for each newly created filing entity or, with respect to a conversion, the fee imposed for filing a certificate of formation for the converted entity; (6) for filing a certificate of exchange, $300; and (7) for preclearance of a filing instrument, $50. (TBCA 10.01.A (part); TLLCA 8.12.B, 9.01.A (part); TMCLA 7.05; TNPCA 9.03.A (part); TRLPA 12.01 (part).) Sec. 4.152. FILING FEES: FOR-PROFIT CORPORATIONS. For a filing by or for a for-profit corporation, the secretary of state shall impose the following fees: (1) for filing a certificate of formation, $300; (2) for filing a certificate of amendment, $150; (3) for filing an application of a foreign corporation for registration to transact business in this state, $750; (4) for filing an application of a foreign corporation for an amended registration to transact business in this state, $150; (5) for filing a restated certificate of formation and accompanying statement, $300; (6) for filing a statement of change of registered office, registered agent, or both, $15; (7) for filing a statement of change of name or address of a registered agent, $15, except that the maximum fee for simultaneous filings by a registered agent for more than one corporation may not exceed $750; (8) for filing a statement of resolution establishing one or more series of shares, $15; (9) for filing a certificate of winding up and termination, $40; (10) for filing a certificate of withdrawal of a foreign corporation, $15; (11) for filing a certificate from the home state of a foreign corporation that the corporation no longer exists in that state, $15; (12) for filing a bylaw or agreement restricting transfer of shares or securities other than as an amendment to the certificate of formation, $15; (13) for filing an application for reinstatement of a certificate of formation or registration as a foreign corporation following forfeiture under the Tax Code, $75; (14) for filing an application for reinstatement of a corporation or registration as a foreign corporation after involuntary dissolution or revocation, $75; and (15) for filing any instrument as provided by this code for which this section does not expressly provide a fee, $15. (TBCA 10.01.A.) Sec. 4.153. FILING FEES: NONPROFIT CORPORATIONS. For a filing by or for a nonprofit corporation, the secretary of state shall impose the following fees: (1) for filing a certificate of formation, $25; (2) for filing a certificate of amendment, $25; (3) for filing a certificate of merger, conversion, or consolidation, without regard to whether the surviving or new corporation is a domestic or foreign corporation, $50; (4) for filing a statement of change of a registered office, registered agent, or both, $5; (5) for filing a certificate of dissolution, $5; (6) for filing an application of a foreign corporation for registration to conduct affairs in this state, $25; (7) for filing an application of a foreign corporation for an amended registration to conduct affairs in this state, $25; (8) for filing a certificate of withdrawal of a foreign corporation, $5; (9) for filing a restated certificate of formation and accompanying statement, $50; (10) for filing a statement of change of name or address of a registered agent, $15, except that the maximum fee for simultaneous filings by a registered agent for more than one corporation may not exceed $250; (11) for filing a report under Chapter 22, $5; (12) for filing a report under Chapter 22 to reinstate a corporation's right to conduct affairs in this state, $5, plus a late fee in the amount of $5 or in the amount of $1 for each month or part of a month that the report remains unfiled, whichever amount is greater, except that the late fee may not exceed $25; (13) for filing a report under Chapter 22 to reinstate a corporation or registration following involuntary termination or revocation, $25; and (14) for filing any instrument of a domestic or foreign corporation as provided by this code for which this section does not expressly provide a fee, $5. (TNPCA 8.15.E (part), 9.02.C, F, 9.03.) Sec. 4.154. FILING FEES: LIMITED LIABILITY COMPANIES. For a filing by or for a limited liability company, the secretary of state shall impose the same fee as the filing fee for a similar instrument under Section 4.152. (TLLCA 7.11.E (part), 9.01.A.) Sec. 4.155. FILING FEES: LIMITED PARTNERSHIPS. For a filing by or for a limited partnership, the secretary of state shall impose the following fees: (1) for filing a certificate of formation or an application for registration as a foreign limited partnership, $750; (2) for filing a certificate of amendment or an amendment of registration of a foreign limited partnership, $150; (3) for filing a restated certificate of formation, $300; (4) for filing a statement for change of registered office, registered agent, or both, $15; (5) for filing a statement of change of name or address of a registered agent, $15, except that the maximum fee for simultaneous filings by a registered agent for more than one limited partnership may not exceed $750; (6) for filing a certificate of winding up and termination, $40; (7) for filing a certificate of withdrawal of a foreign limited partnership, $15; (8) for filing a certificate of reinstatement of a limited partnership or registration as a foreign limited partnership after involuntary termination or revocation under Chapter 11 or Chapter 9, $75; (9) for filing a periodic report required under Chapter 153, $50; (10) for reviving a limited partnership's right to transact business under Chapter 153, $50 plus a late fee in an amount equal to the lesser of: (A) $25 for each month or part of a month that elapses after the date of the notice of forfeiture; or (B) $100; (11) for reinstatement of a certificate of formation or registration under Chapter 153, $50 plus a late fee of $100 and a reinstatement fee of $75; (12) for filing any document required or permitted to be filed for a limited liability partnership, the secretary of state shall impose the same fee as the filing fee for a general partnership under Section 4.158. For purposes of calculation of the filing fee, all references to partners in Section 4.158 as applied to limited partnerships mean general partners only; and (13) for filing any instrument as provided by this code for which this section does not expressly provide a fee, $15. (TRLPA 12.01, 13.05(b) (part), 13.07(a) (part), 13.09(a).) Sec. 4.156. FILING FEES: PROFESSIONAL ASSOCIATIONS. For a filing by or for a professional association, the secretary of state shall impose the following fees: (1) for filing a certificate of formation or an application for registration as a foreign professional association, $750; (2) for filing an annual statement, $35; and (3) for filing any other instrument, the fee provided for the filing of a similar instrument under Section 4.152. (TPAA 22.) Sec. 4.157. FILING FEES: PROFESSIONAL CORPORATIONS. For a filing by or for a professional corporation, the secretary of state shall impose the same fee as the filing fee for a similar instrument under Section 4.152. (TPCA 5 (part).) Sec. 4.158. FILING FEES: GENERAL PARTNERSHIPS. For a filing by or for a general partnership, the secretary of state shall impose the following fees: (1) for filing a limited liability partnership application, $200 for each partner; (2) for filing a limited liability partnership renewal application, $200 for each partner on the date of renewal; (3) for filing a statement of foreign qualification by a foreign limited liability partnership, $200 for each partner in this state, except that the maximum fee may not exceed $750; (4) for filing a renewal of registration by a foreign limited liability partnership, $200 for each partner in this state, except that the maximum fee may not exceed $750; (5) for filing a certificate of amendment for a domestic limited liability partnership, $10, plus $200 for each partner added by the amendment; (6) for filing a certificate of amendment for a foreign limited liability partnership, $10, plus $200 for each partner in this state added by amendment not to exceed $750; and (7) for filing any other filing instrument, the filing fee imposed for a similar instrument under Section 4.155. (TRPA 3.08(b)(3), (7) (part), (11) (part), 10.02(c), (g) (part), (k) (part).) Sec. 4.159. FILING FEES: NONPROFIT ASSOCIATIONS. For a filing by or for a nonprofit association, the secretary of state shall impose the following fees: (1) for filing a statement appointing an agent to receive service of process, $25; (2) for filing an amendment of a statement appointing an agent, $5; and (3) for filing a cancellation of a statement appointing an agent, $5. (TUUNAA 12(d), 1 T.A.C. 80.21(c), 80.22(c), 80.23(c), 80.24(c).) Sec. 4.160. FILING FEES: FOREIGN FILING ENTITIES. For a filing by or for a foreign filing entity when no other fee has been provided, the secretary of state shall impose the same fee as the filing fee for a similar instrument under Section 4.151 or 4.152. (New.)
CHAPTER 5. NAMES OF ENTITIES; REGISTERED AGENTS AND
REGISTERED OFFICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 5.001. EFFECT ON RIGHTS UNDER OTHER LAW. (a) The filing of a certificate of formation by a filing entity under this code, an application for registration by a foreign filing entity under this code, or an application for reservation or registration of a name under this chapter does not authorize the use of a name in this state in violation of a right of another under: (1) the Trademark Act of 1946, as amended (15 U.S.C. Section 1051 et seq.); (2) Chapter 16 or 36, Business & Commerce Code; or (3) common law. (b) The secretary of state shall deliver a notice that contains the substance of Subsection (a) to each of the following: (1) a filing entity that files a certificate of formation under this code; (2) a foreign filing entity that registers under this code; (3) a person that reserves a name under Subchapter C; and (4) a person that registers a name under Subchapter D. (TBCA 2.05.C; TLLCA 2.03.C.)
[Sections 5.002-5.050 reserved for expansion]
SUBCHAPTER B. GENERAL PROVISIONS RELATING TO NAMES
OF ENTITIES
Sec. 5.051. ASSUMED NAME. A domestic entity or a foreign entity having authority to transact business in this state may transact business under an assumed name by filing an assumed name certificate in accordance with Chapter 36, Business & Commerce Code. The requirements of this subchapter do not apply to an assumed name set forth in an assumed name certificate filed under that chapter. (TBCA 2.05.B, 8.03.A(2) (part); TNPCA 8.04.A (part); TLLCA 2.03.B; TRLPA 9.03(b).) Sec. 5.052. UNAUTHORIZED PURPOSE IN NAME PROHIBITED. A filing entity or a foreign filing entity may not have a name that contains any word or phrase that indicates or implies that the entity is engaged in a business that the entity is not authorized by law to pursue. (TBCA 2.05.A(2); TLLCA 2.03.A(2), 7.03 (part); TNPCA 2.04 (part); TRLPA 1.03 (part).) Sec. 5.053. IDENTICAL AND DECEPTIVELY SIMILAR NAMES PROHIBITED. (a) A filing entity may not have a name, and a foreign filing entity may not register to transact business in this state 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) a name that is reserved under Subchapter C; or (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, consents in writing to the use of the similar name. (TBCA 2.05.A(3), 8.03.A(2) (part); TLLCA 2.03.A(3), 7.03 (part); TNPCA 2.04 (part), 8.03.A(2) (part); TRLPA 1.03 (part).) Sec. 5.054. NAME OF CORPORATION, FOREIGN CORPORATION, OR PROFESSIONAL CORPORATION. (a) The name of a corporation or foreign corporation must contain: (1) the word "company," "corporation," "incorporated," or "limited"; or (2) an abbreviation of one of those words. (b) Subsection (a) does not apply to a nonprofit corporation or foreign nonprofit corporation. (c) Instead of a word or abbreviation required by Subsection (a), the name of a professional corporation may contain the phrase "professional corporation" or an abbreviation of the phrase. (TBCA 2.05.A(1), 8.03.A(1); TPCA 8 (part).) Sec. 5.055. NAME OF LIMITED PARTNERSHIP OR FOREIGN LIMITED PARTNERSHIP. (a) The name of a limited partnership or foreign limited partnership must contain: (1) the word "limited"; (2) the phrase "limited partnership"; or (3) an abbreviation of that word or phrase. (b) The name of a limited partnership that is a limited liability limited partnership must also contain: (1) the phrase "limited liability partnership" or "limited liability limited partnership"; or (2) an abbreviation of one of those phrases. (TRLPA 1.03 (part); TRPA 3.08(c).) Sec. 5.056. NAME OF LIMITED LIABILITY COMPANY OR FOREIGN LIMITED LIABILITY COMPANY. (a) The name of a limited liability company or a foreign limited liability company doing business in this state must contain: (1) the phrase "limited liability company" or "limited company"; or (2) an abbreviation of one of those phrases. (b) A limited liability company formed before September 1, 1993, the name of which complied with the laws of this state on the date of formation but does not comply with this section is not required to change its name. (TLLCA 2.03.A (part), 7.03 (part).) Sec. 5.057. NAME OF COOPERATIVE ASSOCIATION. (a) The name of a cooperative association must contain: (1) the word "cooperative"; or (2) an abbreviation of that word. (b) A domestic or foreign entity may use the word "cooperative" in its name to the extent permitted by Section 251.452. (CAA 8(b) (part), 39(a).) Sec. 5.058. NAME OF PROFESSIONAL ASSOCIATION. The name of a professional association must contain: (1) the word "associated," "associates," or "association"; (2) the phrase "professional association"; or (3) an abbreviation of one of those words or that phrase. (TPAA 4 (part).) Sec. 5.059. NAME OF PROFESSIONAL LIMITED LIABILITY COMPANY. (a) The name of a professional limited liability company must contain: (1) the phrase "professional limited liability company"; or (2) an abbreviation of that phrase. (b) A professional limited liability company formed before September 1, 1993, the name of which complied with the laws of this state on the date of formation but does not comply with this section, is not required to change its name. (TLLCA 11.02 (part).) Sec. 5.060. NAME OF PROFESSIONAL ENTITY; CONFLICTS WITH OTHER LAW OR ETHICAL RULE. The name of a professional entity must not be contrary to a statute or regulation that governs a person who provides a professional service through the professional entity, including a rule of professional ethics. (TLLCA 11.02 (part); TPAA 4 (part); TPCA 8 (part).) Sec. 5.061. NAME CONTAINING "LOTTO" OR "LOTTERY" PROHIBITED. A filing entity or a foreign filing entity may not have a name that contains the word "lotto" or "lottery." (TBCA 2.05.A(4); TNPCA 2.04.A(3).) Sec. 5.062. VETERANS ORGANIZATIONS; UNAUTHORIZED USE OF NAME. (a) Subject to Subsection (b), a filing entity may not have a name that: (1) reasonably implies that the entity is created by or for the benefit of war veterans or their families; and (2) contains the word or phrase, or any variation or abbreviation of: (A) "veteran"; (B) "legion"; (C) "foreign"; (D) "Spanish"; (E) "disabled"; (F) "war"; or (G) "world war." (b) The prohibition in Subsection (a) does not apply to a filing entity with a name approved in writing by: (1) a congressionally recognized veterans organization with a name containing the same word or phrase, or variation or abbreviation, contained in the filing entity's name; or (2) if a veterans organization described by Subdivision (1) does not exist, the state commander of the: (A) American Legion; (B) Disabled American Veterans of the World War; (C) Veterans of Foreign Wars of the United States; (D) United Spanish War Veterans; or (E) Veterans of the Spanish-American War. (TMCLA 3.01.) Sec. 5.063. NAME OF LIMITED LIABILITY PARTNERSHIP. (a) The name of a domestic or foreign limited liability partnership must contain: (1) the phrase "limited liability partnership"; or (2) an abbreviation of the phrase. (b) A domestic or foreign limited liability partnership is subject to Section 5.053. (c) A domestic or foreign limited liability partnership that is also a limited partnership must comply with Section 5.055 and not this section. (TRPA 3.08(c).)
[Sections 5.064-5.100 reserved for expansion]
SUBCHAPTER C. RESERVATION OF NAMES
Sec. 5.101. APPLICATION FOR RESERVATION OF NAME. (a) Any person may file an application with the secretary of state to reserve the exclusive use of a name under this chapter. (b) The application must be: (1) accompanied by any required filing fee; and (2) signed by the applicant or by the agent or attorney of the applicant. (TBCA 2.06.A, B (part); TLLCA 2.04.A, B (part); TNPCA 2.04A; TRLPA 1.04(a), (b) (part).) Sec. 5.102. RESERVATION OF CERTAIN NAMES PROHIBITED; EXCEPTIONS. (a) The secretary of state may not reserve a name that is 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) a name that is reserved under this subchapter; or (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, consents in writing to the subsequent reservation of the similar name. (TBCA 2.05.A(3), 2.06.B (part); TLLCA 2.03.A(3), 2.04.B (part); TNPCA 2.04.A(2); TRLPA 1.03 (part), 1.04(b) (part).) Sec. 5.103. ACTION ON APPLICATION. If the secretary of state determines that the name specified in the application is eligible for reservation, the secretary shall reserve that name for the exclusive use of the applicant. (TBCA 2.06.B (part); TLLCA 2.04.B (part); TNPCA 2.04A.B; TRLPA 1.04(b) (part).) Sec. 5.104. DURATION OF RESERVATION OF NAME. The secretary of state shall reserve the name for the applicant until the earlier of: (1) the 121st day after the date the application is accepted for filing; or (2) the date the applicant files with the secretary of state a written notice of withdrawal of the reservation. (TBCA 2.06.B (part), D; TLLCA 2.04.B (part), D; TNPCA 2.04A.B; TRLPA 1.04(b) (part).) Sec. 5.105. RENEWAL OF RESERVATION. A person may renew the person's reservation of a name under this subchapter for successive 120-day periods if, during the 30-day period preceding the expiration of that reservation, the person: (1) files a new application to reserve the name; and (2) pays the required filing fee. (TRLPA 1.04(b) (part).) Sec. 5.106. TRANSFER OF RESERVATION OF NAME. (a) A person may transfer the person's reservation of a name by filing with the secretary of state a notice of transfer. (b) The notice of transfer must: (1) be signed by the person for whom the name is reserved; and (2) state the name and address of the person to whom the reservation is to be transferred. (TBCA 2.06.C; TLLCA 2.04.C; TNPCA 2.04A.B; TRLPA 1.04(b) (part).)
[Sections 5.107-5.150 reserved for expansion]
SUBCHAPTER D. REGISTRATION OF NAMES
Sec. 5.151. APPLICATION BY CERTAIN ENTITIES FOR REGISTRATION OF NAME. An organization that is authorized to do business in this state as a bank, trust company, savings association, or insurance company, or that is a foreign filing entity not registered to do business in this state under this code, may apply to register its name under this subchapter. (TBCA 2.07.A (part); TLLCA 8.12.A (part); TRLPA 1.05(a).) Sec. 5.152. APPLICATION FOR REGISTRATION OF NAME. (a) To register a name under this subchapter, an organization must file an application with the secretary of state. (b) The application must: (1) state that the organization validly exists and is doing business; (2) contain a brief statement of the nature of the organization's business; (3) set out: (A) the name of the organization; (B) the name of the jurisdiction under whose laws the organization is formed; and (C) the date the organization was formed; and (4) be accompanied by any required filing fee. (TBCA 2.07.B; TRLPA 1.05(b).) Sec. 5.153. CERTAIN REGISTRATIONS PROHIBITED; EXCEPTIONS. (a) The secretary of state may not register 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 an existing filing entity; (2) the name of a foreign filing entity that is registered under Chapter 9; (3) a name that is reserved under Subchapter C; or (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, consents in writing 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 conflicting name is filed with the secretary of state. (TBCA 2.07.A (part); TLLCA 8.12.A (part).) Sec. 5.154. DURATION OF REGISTRATION OF NAME. The registration of a name under this subchapter is effective until the earlier of: (1) the first anniversary of the date the application is accepted for filing; or (2) the date the entity files with the secretary of state a written notice of withdrawal of the registration. (TBCA 2.07.C; TLLCA 8.12.A (part); TRLPA 1.05(c).) Sec. 5.155. RENEWAL OF REGISTRATION. A person may renew the person's registration of a name under this subchapter for successive one-year periods if, during the 90-day period preceding the expiration of that registration, the person: (1) files an application to renew the registration of the name; and (2) pays the required filing fee. (TBCA 2.08; TRLPA 1.05(d).)
[Sections 5.156-5.200 reserved for expansion]
SUBCHAPTER E. REGISTERED AGENTS AND REGISTERED OFFICES
Sec. 5.201. DESIGNATION AND MAINTENANCE OF REGISTERED AGENT AND REGISTERED OFFICE. (a) Each filing entity and each foreign filing entity shall designate and continuously maintain in this state: (1) a registered agent; and (2) a registered office. (b) The registered agent: (1) is an agent of the entity on whom may be served any process, notice, or demand required or permitted by law to be served on the entity; (2) may be: (A) an individual who is a resident of this state; or (B) a domestic entity or a foreign entity that is registered to do business in this state; and (3) must maintain a business office at the same address as the entity's registered office. (c) The registered office: (1) must be located at a street address where process may be personally served on the entity's registered agent; (2) is not required to be a place of business of the filing entity or foreign filing entity; and (3) may not be solely a mailbox service or a telephone answering service. (TBCA 2.09, 2.11.A (part), 8.08, 8.10.A (part); TLLCA 2.05, 2.08.A (part); TNPCA 2.05, 2.07.A (part), 8.07, 8.09.A (part); TREITA 5.10(A), 5.20(A) (part); TRLPA 1.06(a), 1.08(a) (part), 9.04; TRPA 10.05(a), (j) (part).) Sec. 5.202. CHANGE BY ENTITY TO REGISTERED OFFICE OR REGISTERED AGENT. (a) A filing entity or foreign filing entity may change its registered office, its registered agent, or both by filing a statement of the change in accordance with Chapter 4. (b) The statement must contain: (1) the name of the entity; (2) the name of the entity's registered agent; (3) the street address of the entity's registered agent; (4) if the change relates to the registered agent, the name of the entity's new registered agent; (5) if the change relates to the registered office, the street address of the entity's new registered office; (6) a recitation that the change specified in the statement is authorized by the entity; and (7) a recitation that the street address of the registered office and the street address of the registered agent's business are the same. (c) On acceptance of the statement by the filing officer, the statement is effective as an amendment to the appropriate provision of: (1) the filing entity's certificate of formation; or (2) the foreign filing entity's registration. (TBCA 2.10.A, C, 8.09.A, C; TLLCA 2.06.A, C; TNPCA 2.06.A, C; TREITA 5.10(B); TRLPA 1.06(b), (d), (e); TRPA 10.05(b).) Sec. 5.203. CHANGE BY REGISTERED AGENT TO NAME OR ADDRESS OF REGISTERED OFFICE. (a) The registered agent of a filing entity or a foreign filing entity may change its name, its address as the address of the entity's registered office, or both by filing a statement of the change in accordance with Chapter 4. (b) The statement must be signed by the registered agent, or a person authorized to sign the statement on behalf of the registered agent, and must contain: (1) the name of the entity represented by the registered agent; (2) the name of the entity's registered agent and the address at which the registered agent maintained the entity's registered office; (3) if the change relates to the name of the registered agent, the new name of that agent; (4) if the change relates to the address of the registered office, the new address of that office; and (5) a recitation that written notice of the change was given to the entity at least 10 days before the date the statement is filed. (c) On acceptance of the statement by the filing officer, the statement is effective as an amendment to the appropriate provision of: (1) the filing entity's certificate of formation; or (2) the foreign filing entity's registration. (d) A registered agent may file a statement under this section that applies to more than one entity. (TBCA 2.10-1.A, C; TLLCA 2.07.A, C; TNPCA 2.06A.A, C; TREITA 5.10(F); TRLPA 1.06(h), (i) (part); TRPA 10.05(h), (i) (part).) Sec. 5.204. RESIGNATION OF REGISTERED AGENT. (a) A registered agent of a filing entity or a foreign filing entity may resign as the registered agent by giving notice to that entity and to the appropriate filing officer. (b) Notice to the entity must be given to the entity at the address of the entity most recently known by the agent. (c) Notice to the filing officer must be given before the 11th day after the date notice under Subsection (b) is mailed or delivered and must include: (1) the address of the entity most recently known by the agent; (2) a statement that written notice of the resignation has been given to the entity; and (3) the date on which that written notice of resignation was given. (d) On compliance with Subsections (b) and (c), the appointment of the registered agent terminates. The termination is effective on the 31st day after the date the secretary of state receives the notice. (e) If the filing officer finds that a notice of resignation received by the filing officer conforms to Subsections (b) and (c), the filing officer shall: (1) notify the entity of the registered agent's resignation; and (2) file the resignation in accordance with Chapter 4, except that a fee is not required to file the resignation. (TBCA 2.10.D, 8.09.D; TLLCA 2.06.D; TNPCA 2.06.D, 8.08.D; TREITA 5.10(C), (D), (E); TRLPA 1.06(f), (g); TRPA 10.05(f), (g).)
[Sections 5.205-5.250 reserved for expansion]
SUBCHAPTER F. SERVICE OF PROCESS
Sec. 5.251. FAILURE TO DESIGNATE REGISTERED AGENT. The secretary of state is an agent of an entity for purposes of service of process, notice, or demand on the entity if: (1) the entity is a filing entity or a foreign filing entity and: (A) the entity fails to appoint or does not maintain a registered agent in this state; or (B) the registered agent of the entity cannot with reasonable diligence be found at the registered office of the entity; or (2) the entity is a foreign filing entity and: (A) the entity's registration to do business under this code is revoked; or (B) the entity transacts business in this state without being registered as required by Chapter 9. (TBCA 2.11.B (part), 8.10.B (part); TLLCA 2.08.B (part); TNPCA 2.07.B (part), 8.09.B (part); TREITA 5.20(B) (part); TRLPA 1.08(b) (part), 9.10(b) (part); TRPA 10.05(k).) Sec. 5.252. SERVICE ON SECRETARY OF STATE. (a) Service on the secretary of state under Section 5.251 is effected by: (1) delivering to the secretary duplicate copies of the process, notice, or demand; and (2) accompanying the copies with any fee required by law, including this code or the Government Code, for: (A) maintenance by the secretary of a record of the service; and (B) forwarding by the secretary of the process, notice, or demand. (b) Notice on the secretary of state under Subsection (a) is returnable in not less than 30 days. (TBCA 2.11.B (part), 8.10.B (part); TLLCA 2.08.B (part); TNPCA 2.07.B (part), 8.09.B (part); TREITA 5.20(B) (part), (D); TRLPA 1.08(b) (part), 9.10(b) (part); TRPA 10.05(l) (part).) Sec. 5.253. ACTION BY SECRETARY OF STATE. (a) After service in compliance with Section 5.252, the secretary of state shall immediately send one of the copies of the process, notice, or demand to the named entity. (b) The notice must be: (1) addressed to the most recent address of the entity on file with the secretary of state; and (2) sent by certified mail, with return receipt requested. (TBCA 2.11.B (part), 8.10.B (part); TLLCA 2.08.B (part); TNPCA 2.07.B (part), 8.09.B (part); TREITA 5.20(B) (part); TRLPA 1.08(b) (part), 9.10(b) (part); TRPA 10.05(l) (part).) Sec. 5.254. REQUIRED RECORDS OF SECRETARY OF STATE. The secretary of state shall keep a record of each process, notice, or demand served on the secretary under this subchapter and shall record: (1) the time when each service on the secretary was made; and (2) each subsequent action of the secretary taken in relation to that service. (TBCA 2.11.C, 8.10.C; TLLCA 2.08.C; TNPCA 2.07.C, 8.09.C; TREITA 5.20(C); TRLPA 1.08(c), 9.10(c); TRPA 10.05(m).) Sec. 5.255. AGENT FOR SERVICE OF PROCESS, NOTICE, OR DEMAND AS MATTER OF LAW. For the purpose of service of process, notice, or demand: (1) the president and each vice president of a domestic or foreign corporation is an agent of that corporation; (2) each general partner of a domestic or foreign limited partnership and each partner of a domestic or foreign general partnership is an agent of that partnership; (3) each manager of a manager-managed domestic or foreign limited liability company and each member of a member-managed domestic or foreign limited liability company is an agent of that limited liability company; (4) each person who is a governing person of a domestic or foreign entity, other than an entity listed in Subdivisions (1)-(3), is an agent of that entity; and (5) each member of a committee of a nonprofit corporation authorized to perform the chief executive function of the corporation is an agent of that corporation. (TBCA 2.11.A (part), 8.10.A (part); TLLCA 2.08.A (part); TNPCA 2.07.A (part), 8.09.A (part); TREITA 5.20(A) (part); TRLPA 1.08(a) (part), 9.10(a) (part); TRPA 10.05(j) (part).) Sec. 5.256. OTHER MEANS OF SERVICE NOT PRECLUDED. This chapter does not preclude other means of service of process, notice, or demand on a domestic or foreign entity as provided by other law. (TBCA 8.10.D; TLLCA 2.08.D; TRLPA 9.10(d); TRPA 10.05(n).) Sec. 5.257. SERVICE OF PROCESS BY POLITICAL SUBDIVISION. (a) A process, notice, or demand required or permitted by law to be served by a political subdivision of this state or by a person, including another political subdivision or an attorney, acting on behalf of a political subdivision in connection with the collection of a delinquent ad valorem tax may be served on a domestic or foreign corporation whose corporate privileges are forfeited under Section 171.251, Tax Code, that is involuntarily terminated under Chapter 11, or whose registration is revoked under Chapter 9 by delivery of the process, notice, or demand to any officer or director of the corporation, as listed in the most recent records of the secretary of state. (b) If the officers or directors of a corporation are unknown or cannot be found, service on the corporation may be made in the same manner as service is made on unknown shareholders under law. (c) Notwithstanding any disability or reinstatement of a corporation, service of process under this section is sufficient for a judgment against the corporation or a judgment in rem against any property to which the corporation holds title. (TBCA 2.11.D, 8.10.E; TNPCA 2.07.D.)
CHAPTER 6. MEETINGS AND VOTING
SUBCHAPTER A. MEETINGS
Sec. 6.001. LOCATION OF MEETINGS. (a) Meetings of the owners or members of a domestic entity may be held at locations in or outside the state as: (1) provided by or fixed in accordance with the governing documents of the domestic entity; or (2) agreed to by all persons entitled to notice of the meeting. (b) If the location of meetings of the owners or members of the entity is not established under Subsection (a), the owners or members may hold meetings only at the registered office of the entity in this state or the principal office of the entity. (c) The governing persons of a domestic entity, or a committee of the governing persons, may hold meetings in or outside the state as: (1) provided by or fixed in accordance with: (A) the governing documents of the domestic entity; or (B) the person calling the meeting; or (2) agreed to by all persons entitled to notice of the meeting. (CAA 13(b), 21(d); TBCA 2.24.A, 2.37.A; TLLCA 2.19.A, B; TNPCA 2.10.A (part), 2.19.A; TREITA 10.10(A), 10.20(A).) Sec. 6.002. ALTERNATIVE FORMS OF MEETINGS. (a) Subject to this code and the governing documents of a domestic entity, the owners, members, or governing persons of the entity, or a committee of the owners, members, or governing persons, may hold meetings by using a conference telephone or similar communications equipment, or another suitable electronic communications system, including videoconferencing technology or the Internet, or any combination, if the telephone or other equipment or system permits each person participating in the meeting to communicate with all other persons participating in the meeting. (b) If voting is to take place at the meeting, the entity must: (1) implement reasonable measures to verify that every person voting at the meeting by means of remote communications is sufficiently identified; and (2) keep a record of any vote or other action taken. (TBCA 9.10.C (part); TLLCA 2.23.C (part); TNPCA 9.11.A; TREITA 10.30(C) (part).) Sec. 6.003. PARTICIPATION CONSTITUTES PRESENCE. A person participating in a meeting is considered present at the meeting, unless the participation is for the express purpose of objecting to the transaction of business at the meeting on the ground that the meeting has not been lawfully called or convened. (TBCA 9.10.C (part); TLLCA 2.23.C (part); TREITA 10.30(C) (part).)
[Sections 6.004-6.050 reserved for expansion]
SUBCHAPTER B. NOTICE OF MEETINGS
Sec. 6.051. GENERAL NOTICE REQUIREMENTS. (a) Subject to this code and the governing documents of the entity, notice of a meeting of the owners, members, or governing persons of a domestic entity, or a committee of the owners, members, or governing persons, must: (1) be given in the manner determined by the governing authority of the entity; and (2) state: (A) the date and time of the meeting; and (B) the location of the meeting or, if the meeting is held by using a conference telephone or other communications system authorized by Section 6.002, the form of communication used for the meeting. (b) Subject to this code and the governing documents of a domestic entity, notice of a meeting that is: (1) mailed is considered to be delivered on the date notice is deposited in the United States mail with postage paid in an envelope addressed to the person at the person's address as it appears on the ownership or membership records of the entity; and (2) transmitted by facsimile or electronic message is considered to be delivered when the facsimile or electronic message is successfully transmitted. (CAA 14 (part); TBCA 2.25.A (part), 2.37.B (part); TLLCA 2.19.B, E; TNPCA 2.11.A (part), 2.19.B (part).) Sec. 6.052. WAIVER OF NOTICE. (a) Notice of a meeting is not required to be given to an owner, member, or governing person of a domestic entity, or a member of a committee of the owners, members, or governing persons, entitled to notice under this code or the governing documents of the entity if the person entitled to notice signs a written waiver of notice of the meeting, regardless of whether the waiver is signed before or after the time of the meeting. (b) If a person entitled to notice of a meeting participates in the meeting, the person's participation constitutes a waiver of notice of the meeting unless the person participates in the meeting solely to object to the transaction of business at the meeting on the ground that the meeting was not lawfully called or convened. (TBCA 2.37.B (part), 9.09; TLLCA 2.19.F, 8.08; TNPCA 2.19.B (part), 9.09; TREITA 21.10.) Sec. 6.053. EXCEPTION. (a) Notice of a meeting is not required to be given to an owner or member of a filing entity entitled to notice under this code or the governing documents of the entity if either of the following is mailed to the person entitled to notice of the meeting to the person's address as it appears on the ownership or membership transfer records of the entity and is returned undeliverable: (1) notice of two consecutive annual meetings and notice of any meeting held during the period between the two annual meetings; or (2) all, but in no event less than two, payments of distribution or interest on securities during a 12-month period if the payments are sent by first class mail. (b) Notice of a meeting is not required to be given to an owner or member entitled to notice under this code or the governing documents of a filing entity the notice requirements of which are subject to the Securities Exchange Act of 1934, as amended (15 U.S.C. Section 78a et seq.), if the person entitled to notice of the meeting is considered a lost security holder under that Act and the regulations adopted under that Act. (c) An action taken or a meeting held without giving notice to a person not entitled to notice under this section has the same force and effect as if notice had been given to the person. (d) A certificate or other document filed with the secretary of state as a result of a meeting held or an action taken by a filing entity without giving notice of the meeting or action to a person not entitled to notice under this section may state that notice of the meeting or action was given to each person entitled to notice. (e) Notice of a meeting must be given to a person not entitled to notice of the meeting under this section if the person delivers to the entity a written notice of the person's address. (TBCA 2.25.B; TREITA 11.10(B), (C).)
[Sections 6.054-6.100 reserved for expansion]
SUBCHAPTER C. RECORD DATES
Sec. 6.101. RECORD DATE FOR PURPOSE OTHER THAN WRITTEN CONSENT TO ACTION. (a) Subject to this code, the governing documents of a domestic entity may provide the record date, or the manner of determining the record date, for: (1) determining the owners or members of the entity entitled to: (A) receive notice of a meeting of the owners or members; (B) vote at a meeting of the owners or members or at any adjournment of a meeting; or (C) receive a distribution from the entity other than a distribution involving a purchase or redemption by the entity of the entity's own securities; or (2) any other proper purpose other than for determining the owners or members entitled to consent to action without a meeting of the owners or members. (b) Subject to this code and the governing documents of a domestic entity, the governing authority of the entity, in advance, may provide a record date for determining the owners or members of the entity, except that the date may not be earlier than the 60th day before the date the action requiring the determination of owners or members is taken. (c) Subject to this code and the governing documents of a domestic entity, the governing authority of the entity may provide for the closing of the ownership or membership transfer records of the entity for a period of not longer than 60 days to determine the owners or members of the entity for a purpose described by Subsection (a). (d) If the owners or members of an entity are not otherwise determined under this section, the record date for determining the owners or members of an entity is the date on which: (1) notice of the meeting is mailed to the owners or members entitled to notice of the meeting; or (2) with respect to a distribution, other than a distribution involving a purchase or redemption by the domestic entity of any of its own securities, the governing authority adopts the resolution declaring the distribution. (e) The record date for a meeting applies to any adjournment of the meeting unless: (1) the owners or members entitled to vote are determined under Subsection (c); and (2) the period during which the transfer records are closed expires. (TBCA 2.26.B (part); TNPCA 2.11A; TREITA 11.20(C) (part).) Sec. 6.102. RECORD DATE FOR WRITTEN CONSENT TO ACTION. (a) Subject to this code and the governing documents of an entity, the governing authority of the entity may provide the record date for determining the owners or members of the entity entitled to written consent to action without a meeting of the owners or members unless a record date is provided under Section 6.101 for that action. The record date may not be earlier than the date the governing authority adopts the resolution providing for the record date. (b) Subject to this code and the governing documents of an entity, the record date for determining the owners or members of the entity entitled to written consent to action without a meeting of the owners or members is the date a signed written consent to action stating the action taken or proposed to be taken is first delivered to the entity if: (1) the governing authority of the entity does not provide a record date under Subsection (a); and (2) prior action by the governing authority is not required under this code. (c) Subject to this code or the governing documents of an entity, the record date for determining the owners or members of the entity entitled to written consent to action without a meeting of the owners or members is at the close of business on the date the governing authority of the entity adopts a resolution taking prior action if: (1) the governing authority does not provide a record date under Subsection (a); and (2) prior action by the governing authority is required by this code. (TBCA 2.26.C (part); TREITA 11.20(D) (part).) Sec. 6.103. RECORD DATE FOR SUSPENDED DISTRIBUTIONS. (a) In this section, "distribution" includes a distribution that: (1) was payable to an owner or member but not paid and was held in suspension by the entity making the distribution; or (2) is paid or delivered by the entity making the distribution into an escrow account or to a trustee or custodian. (b) A distribution made by a domestic entity shall be payable by the entity, or an escrow agent, trustee, or custodian of the distribution, to the owner or member determined on the record date for the distribution as provided by this subchapter. (c) The right to a distribution under this section may be transferred by contract, by operation of law, or under the laws of descent and distribution. (TBCA 2.26.D; TREITA 11.20(E).)
[Sections 6.104-6.150 reserved for expansion]
SUBCHAPTER D. VOTING OF OWNERSHIP INTERESTS
Sec. 6.151. MANNER OF VOTING OF INTERESTS. Subject to the title governing the domestic entity, voting of interests of a domestic entity must be conducted in the manner provided by the governing documents of the entity. (New.) Sec. 6.152. VOTING OF INTERESTS OWNED BY ENTITY. (a) Except as provided by Subsection (b), an ownership interest owned by the entity that is the issuer of the interest, or by its direct or indirect subsidiary, may not be: (1) directly or indirectly voted at a meeting; or (2) included in determining at any time the total number of outstanding ownership interests of the entity. (b) This section does not preclude a domestic or foreign entity from voting an ownership interest, including an interest in the entity, held or controlled by the entity in a fiduciary capacity or for which the entity otherwise exercises voting power in a fiduciary capacity. (TBCA 2.29.B; TREITA 13.10(B).) Sec. 6.153. VOTING OF INTERESTS OWNED BY ANOTHER ENTITY. An ownership interest in an entity owned by another entity, whether a domestic or foreign entity, may be voted by the officer, agent, or proxy as authorized by: (1) the governing documents of the entity that owns the interest; or (2) the governing authority of the entity that owns the interest, if the governing documents do not provide for the manner of voting. (TBCA 2.29.E (part); TREITA 13.10(F) (part).) Sec. 6.154. VOTING OF INTERESTS IN AN ESTATE OR TRUST. (a) An administrator, executor, guardian, or conservator of an estate who holds an ownership interest as part of the estate may vote the interest without transferring the interest into the person's name. (b) An ownership interest in the name of a trust may be voted in person or by proxy by: (1) the trustee; or (2) a person authorized to act on behalf of the trust by the trust agreement or the trustee. (TBCA 2.29.F; TREITA 13.10(G).) Sec. 6.155. VOTING OF INTERESTS BY RECEIVER. (a) A receiver may vote an ownership interest standing in the name of the receiver. (b) A receiver may vote an ownership interest held by or under the control of the receiver without transferring the interest into the receiver's name if the court appointing the receiver authorizes the receiver to vote the interest. (TBCA 2.29.G; TREITA 13.10(H).) Sec. 6.156. VOTING OF PLEDGED INTERESTS. A pledged ownership interest may be voted by: (1) the owner of the pledged interest until the interest is transferred into the pledgee's name; and (2) the pledgee after the pledged interest is transferred into the pledgee's name. (TBCA 2.29.H; TREITA 13.10(I).)
[Sections 6.157-6.200 reserved for expansion]
SUBCHAPTER E. ACTION BY WRITTEN CONSENT
Sec. 6.201. UNANIMOUS WRITTEN CONSENT TO ACTION. (a) This section applies to any action required or authorized to be taken under this code or the governing documents of a filing entity at an annual or special meeting of the owners or members of the entity or at a regular, special, or other meeting of the governing authority of the entity or a committee of the governing authority. (b) The owners or members or the governing authority of a filing entity, or a committee of the governing authority, may take action without holding a meeting, providing notice, or taking a vote if each person entitled to vote on the action signs a written consent or consents stating the action taken. (c) A written consent described by Subsection (b) has the same effect as a unanimous vote at a meeting. (d) A filing instrument filed with the filing officer may state that an action approved by written consent or consents has the effect of an approval by a unanimous vote at a meeting. (TBCA 9.10.A(1) (part), B; TLLCA 2.23.B(1); TNPCA 9.10.A, B; TREITA 10.30(A), (B).) Sec. 6.202. ACTION BY LESS THAN UNANIMOUS WRITTEN CONSENT. (a) This section applies to any action required or authorized to be taken under this code or the governing documents of a filing entity at an annual or special meeting of the owners or members of the entity. (b) Except as provided by this code, the certificate of formation of a filing entity may authorize the owners or members of the entity to take action without holding a meeting, providing notice, or taking a vote if owners or members of the entity having at least the minimum number of votes that would be necessary to take the action that is the subject of the consent at a meeting, in which each owner or member entitled to vote on the action is present and votes, sign a written consent or consents stating the action taken. (c) A written consent or consents described by Subsection (b) must include the date each owner or member signed the consent and is effective to take the action that is the subject of the consent only if the consent or consents are delivered to the entity not later than the 60th day after the date the earliest dated consent is delivered to the entity as required by Section 6.203. (d) The entity shall promptly notify each owner or member who did not sign a consent described by Subsection (b) of the action that is the subject of the consent. (TBCA 9.10.A(1) (part), (2) (part), (4); TLLCA 2.23.B(1); TNPCA 9.10.C(1), (2) (part), (3).) Sec. 6.203. DELIVERY OF LESS THAN UNANIMOUS WRITTEN CONSENT. (a) A written consent signed by an owner or member of a filing entity as provided by Section 6.202, if the consent is not solicited on behalf of the entity or its governing authority, must be delivered by hand or certified or registered mail, return receipt requested, or by other means specified in the governing documents, to: (1) the entity's registered office or principal executive office or place of business; or (2) the managerial official or agent of the entity having custody of the entity's records of meetings of owners or members. (b) A consent delivered to an entity's principal executive office or place of business under Subsection (a)(1) must be addressed to the chief managerial official of the entity or, if the entity does not have a chief managerial official, the governing authority of the entity. (TBCA 9.10.A(2) (part); TNPCA 9.10.C(2) (part).) Sec. 6.204. ADVANCE NOTICE NOT REQUIRED. Advance notice is not required to be given to take an action by written consent as provided by this subchapter. (TBCA 9.10.D; TREITA 10.30(D).)
[Sections 6.205-6.250 reserved for expansion]
SUBCHAPTER F. VOTING TRUSTS AND VOTING AGREEMENTS
Sec. 6.251. VOTING TRUSTS. (a) Except as provided by this code or the governing documents, any number of owners of an entity may enter into a written voting trust agreement to confer on a trustee the right to vote or otherwise represent ownership or membership interests of the entity. (b) An ownership or membership interest that is the subject of a voting trust agreement described by Subsection (a) shall be transferred to the trustee named in the agreement for purposes of the agreement. (c) A copy of a voting trust agreement described by Subsection (a) shall be deposited with the entity at the entity's principal executive office or registered office and is subject to examination by: (1) an owner, whether in person or by the owner's agent or attorney, in the same manner as the owner is entitled to examine the books and records of the entity; and (2) a holder of a beneficial interest in the voting trust, whether in person or by the holder's agent or attorney, at any reasonable time for any proper purpose. (TBCA 2.30.A; TREITA 13.20(A).) Sec. 6.252. VOTING AGREEMENTS. (a) Except as provided by this code or the governing documents, any number of owners of an entity, or any number of owners of the entity and the entity itself, may enter into a written voting agreement to provide the manner of voting of the ownership interests of the entity. A voting agreement entered into under this subsection is not part of the governing documents of the entity. (b) A copy of a voting agreement entered into under Subsection (a): (1) shall be deposited with the entity at the entity's principal executive office or registered office; and (2) is subject to examination by an owner, whether in person or by the owner's agent or attorney, in the same manner as the owner is entitled to examine the books and records of the entity. (c) A voting agreement entered into under Subsection (a) is specifically enforceable against the holder of an ownership interest that is the subject of the agreement, and any successor or transferee of the holder, if: (1) the voting agreement is noted conspicuously on the certificate representing the ownership interests; or (2) a notation of the voting agreement is contained in a notice sent by or on behalf of the entity, if the ownership interest is not represented by a certificate. (d) Except as provided by Subsection (e), a voting agreement entered into under Subsection (a) is specifically enforceable against any person, other than a transferee for value, after the time the person acquires actual knowledge of the existence of the agreement. (e) An otherwise enforceable voting agreement entered into under Subsection (a) is not enforceable against a transferee for value without actual knowledge of the existence of the agreement at the time of the transfer, or any subsequent transferee, without regard to value, if the voting agreement is not noted as required by Subsection (c). (f) Section 6.251 does not apply to a voting agreement entered into under Subsection (a). (TBCA 2.30.B; TREITA 13.20(B).)
[Sections 6.253-6.300 reserved for expansion]
SUBCHAPTER G. APPLICABILITY OF CHAPTER TO PARTNERSHIPS
Sec. 6.301. APPLICABILITY OF CHAPTER TO PARTNERSHIPS. This chapter does not apply to a general partnership or a limited partnership except to the extent its governing documents specify. (New.) Sec. 6.302. APPLICABILITY OF SUBCHAPTERS C AND D TO LIMITED LIABILITY COMPANIES. Subchapters C and D do not apply to a limited liability company except to the extent its governing documents specify. (New.)
CHAPTER 7. LIABILITY
Sec. 7.001. LIMITATION OF LIABILITY OF GOVERNING PERSON. (a) Subsections (b) and (c) apply to: (1) a domestic entity other than a partnership or limited liability company; (2) another organization incorporated or organized under another law of this state; and (3) to the extent permitted by federal law, a federally chartered bank, savings and loan association, or credit union. (b) The certificate of formation or similar instrument of an organization to which this section applies may provide that a governing person of the organization is not liable, or is liable only to the extent provided by the certificate of formation or similar instrument, to the organization or its owners or members for monetary damages for an act or omission by the person in the person's capacity as a governing person. (c) Subsection (b) does not authorize the elimination or limitation of the liability of a governing person to the extent the person is found liable under applicable law for: (1) a breach of the person's duty of loyalty, if any, to the organization or its owners or members; (2) an act or omission not in good faith that: (A) constitutes a breach of duty of the person to the organization; or (B) involves intentional misconduct or a knowing violation of law; (3) a transaction from which the person received an improper benefit, regardless of whether the benefit resulted from an action taken within the scope of the person's duties; or (4) an act or omission for which the liability of a governing person is expressly provided by an applicable statute. (d) The liability of a governing person may be limited or restricted: (1) in a general partnership to the extent permitted under Chapter 152; (2) in a limited partnership to the extent permitted under Chapter 153 and, to the extent applicable to limited partnerships, Chapter 152; and (3) in a limited liability company to the extent permitted under Section 101.401. (TMCLA 7.06.)
CHAPTER 8. INDEMNIFICATION AND INSURANCE
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 8.001. DEFINITIONS. In this chapter: (1) "Delegate" means a person who is serving or who has served as a representative of an enterprise at the request of that enterprise at another enterprise. A person is a delegate to an employee benefit plan if the performance of the person's official duties to the enterprise also imposes duties on or otherwise involves service by the person to the plan or participants in or beneficiaries of the plan. (2) "Enterprise" means a domestic entity or an organization subject to this chapter, including a predecessor domestic entity or organization. (3) "Expenses" includes: (A) court costs, a judgment, a penalty, a settlement, a fine, and an excise or similar tax, including an excise tax assessed against the person with respect to an employee benefit plan; and (B) reasonable attorney's fees. (4) "Former governing person" means a person who was a governing person of an enterprise. (5) "Judgment" includes an arbitration award. (6) "Official capacity" means: (A) with respect to a governing person, the office of the governing person in the enterprise or the exercise of authority by or on behalf of the governing person under this code or the governing documents of the enterprise; and (B) with respect to a person other than a governing person, the elective or appointive office, if any, in the enterprise held by the person or the relationship undertaken by the person on behalf of the enterprise. (7) "Predecessor enterprise" means a sole proprietorship or organization that is a predecessor to an enterprise in: (A) a merger, conversion, consolidation, or other transaction in which the liabilities of the predecessor enterprise are transferred or allocated to the enterprise by operation of law; or (B) any other transaction in which the enterprise assumes the liabilities of the predecessor enterprise and the liabilities that are the subject matter of this chapter are not specifically excluded. (8) "Proceeding" means: (A) a threatened, pending, or completed action or other proceeding, whether civil, criminal, administrative, arbitrative, or investigative; (B) an appeal of an action or proceeding described by Paragraph (A); and (C) an inquiry or investigation that could lead to an action or proceeding described by Paragraph (A). (9) "Representative" means a person serving as a partner, director, officer, venturer, proprietor, trustee, employee, or agent of an enterprise or serving a similar function for an enterprise. (10) "Respondent" means a person named as a respondent or defendant in a proceeding. (TBCA 2.02-1.A, P, R (part), T (part); TNPCA 2.22A.A, P, R(1) (part), T (part); TREITA 9.20(A) (part), (P), (R) (part), (T) (part); TRLPA 11.01, 11.16, 11.18 (part), 11.20 (part); New.) Sec. 8.002. APPLICATION OF CHAPTER. (a) Except as provided by Subsection (b), this chapter does not apply to a: (1) general partnership; or (2) limited liability company. (b) The governing documents of a general partnership or limited liability company may adopt provisions of this chapter or may contain enforceable provisions relating to: (1) indemnification; (2) advancement of expenses; or (3) insurance or another arrangement to indemnify or hold harmless a governing person. (TLLCA 2.20.A; TRPA 1.03(a).) Sec. 8.003. LIMITATIONS IN GOVERNING DOCUMENTS. (a) The certificate of formation of an enterprise may restrict the circumstances under which the enterprise must or may indemnify or may advance expenses to a person under this chapter. (b) The written partnership agreement of a limited partnership may restrict the circumstances in the same manner as the certificate of formation under Subsection (a). (TBCA 2.02-1.M, U; TNPCA 2.22A.M, U; TREITA 9.20(M), (U); TRLPA 11.13, 11.21.) Sec. 8.004. LIMITATIONS IN CHAPTER. Except as provided in Section 8.151, a provision for an enterprise to indemnify or advance expenses to a governing person is valid only to the extent it is consistent with this chapter. (TBCA 2.02-1.M; TNPCA 2.22A.M; TREITA 9.20(M); TRLPA 11.13.)
[Sections 8.005-8.050 reserved for expansion]
SUBCHAPTER B. MANDATORY AND COURT-ORDERED INDEMNIFICATION
Sec. 8.051. MANDATORY INDEMNIFICATION. (a) An enterprise shall indemnify a governing person or former governing person against reasonable expenses actually incurred by the person in connection with a proceeding in which the person is a respondent because the person is or was a governing person if the person is wholly successful, on the merits or otherwise, in the defense of the proceeding. (b) A court that determines, in a suit for indemnification, that a governing person is entitled to indemnification under this section shall order indemnification and award to the person the expenses incurred in securing the indemnification. (TBCA 2.02-1.H, I; TNPCA 2.22A.H, I; TREITA 9.20(H), (I); TRLPA 11.08, 11.09.) Sec. 8.052. COURT-ORDERED INDEMNIFICATION. (a) On application of a governing person, former governing person, or delegate and after notice is provided as required by the court, a court may order an enterprise to indemnify the person to the extent the court determines that the person is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. (b) This section applies without regard to whether the governing person, former governing person, or delegate applying to the court satisfies the requirements of Section 8.101 or has been found liable: (1) to the enterprise; or (2) because the person improperly received a personal benefit, without regard to whether the benefit resulted from an action taken in the person's official capacity. (c) The indemnification ordered by the court under this section is limited to reasonable expenses if the governing person, former governing person, or delegate is found liable: (1) to the enterprise; or (2) because the person improperly received a personal benefit, without regard to whether the benefit resulted from an action taken in the person's official capacity. (TBCA 2.02-1.J; TNPCA 2.22A.J; TREITA 9.20(J); TRLPA 11.10.)
[Sections 8.053-8.100 reserved for expansion]
SUBCHAPTER C. PERMISSIVE INDEMNIFICATION AND ADVANCEMENT
OF EXPENSES
Sec. 8.101. PERMISSIVE INDEMNIFICATION. (a) An enterprise may indemnify a governing person, former governing person, or delegate who was, is, or is threatened to be made a respondent in a proceeding to the extent permitted by Section 8.102 if it is determined in accordance with Section 8.103 that: (1) the person: (A) acted in good faith; (B) reasonably believed: (i) in the case of conduct in the person's official capacity, that the person's conduct was in the enterprise's best interests; and (ii) in any other case, that the person's conduct was not opposed to the enterprise's best interests; and (C) in the case of a criminal proceeding, did not have a reasonable cause to believe the person's conduct was unlawful; (2) with respect to expenses, the amount of expenses other than a judgment is reasonable; and (3) indemnification should be paid. (b) Action taken or omitted by a governing person or delegate with respect to an employee benefit plan in the performance of the person's duties for a purpose reasonably believed by the person to be in the interest of the participants and beneficiaries of the plan is for a purpose that is not opposed to the best interests of the enterprise. (c) Action taken or omitted by a delegate to another enterprise for a purpose reasonably believed by the delegate to be in the interest of the other enterprise or its owners or members is for a purpose that is not opposed to the best interests of the enterprise. (d) A person does not fail to meet the standard under Subsection (a)(1) solely because of the termination of a proceeding by: (1) judgment; (2) order; (3) settlement; (4) conviction; or (5) a plea of nolo contendere or its equivalent. (TBCA 2.02-1.B, D (part), G (part), P, T (part); TNPCA 2.22A.B, D (part), G (part), P, T (part); TREITA 9.20(B), (D) (part), (G) (part), (P), (T) (part); TRLPA 11.02, 11.04 (part), 11.07 (part), 11.20 (part).) Sec. 8.102. GENERAL SCOPE OF PERMISSIVE INDEMNIFICATION. (a) Subject to Subsection (b), an enterprise may indemnify a governing person, former governing person, or delegate against: (1) a judgment; and (2) expenses, other than a judgment, that are reasonable and actually incurred by the person in connection with a proceeding. (b) Indemnification under this subchapter of a person who is found liable to the enterprise or is found liable because the person improperly received a personal benefit: (1) is limited to reasonable expenses actually incurred by the person in connection with the proceeding; (2) does not include a judgment, a penalty, a fine, and an excise or similar tax, including an excise tax assessed against the person with respect to an employee benefit plan; and (3) may not be made in relation to a proceeding in which the person has been found liable for: (A) wilful or intentional misconduct in the performance of the person's duty to the enterprise; (B) breach of the person's duty of loyalty owed to the enterprise; or (C) an act or omission not committed in good faith that constitutes a breach of a duty owed by the person to the enterprise. (c) A governing person, former governing person, or delegate is considered to have been found liable in relation to a claim, issue, or matter only if the liability is established by an order, including a judgment or decree of a court, and all appeals of the order are exhausted or foreclosed by law. (TBCA 2.02-1.C, D (part), E, P; TNPCA 2.22A.C, D (part), E, P; TREITA 9.20(C), (D) (part), (E), (P); TRLPA 11.03, 11.04 (part), 11.05, 11.16.) Sec. 8.103. MANNER FOR DETERMINING PERMISSIVE INDEMNIFICATION. (a) Except as provided by Subsections (b) and (c), the determinations required under Section 8.101(a) must be made by: (1) a majority vote of a quorum composed of the governing persons who at the time of the vote are disinterested and independent; (2) if a quorum described by Subdivision (1) cannot be obtained, a majority vote of a committee of the governing authority of the enterprise designated to act in the matter by a majority vote of the governing persons and composed solely of one or more governing persons who at the time of the vote are disinterested and independent; (3) special legal counsel selected by the governing authority of the enterprise, or selected by a committee of the board of directors, by vote in accordance with Subdivision (1) or (2) or, if a quorum described by Subdivision (1) cannot be obtained and a committee described by Subdivision (2) cannot be established, by a majority vote of the governing persons of the enterprise; (4) the owners or members of the enterprise in a vote that excludes the ownership or membership interests held by each governing person who is not disinterested and independent; or (5) a unanimous vote of the owners or members of the enterprise. (b) If special legal counsel determines under Subsection (a)(3) that a person meets the standard under Section 8.101(a)(1), the special legal counsel shall determine whether the amount of expenses other than a judgment is reasonable under Section 8.101(a)(2) but may not determine whether indemnification should be paid under Section 8.101(a)(3). The determination whether indemnification should be paid must be made in a manner specified by Subsection (a)(1), (2), (4), or (5). (c) A provision contained in the governing documents of the enterprise, a resolution of the owners, members, or governing authority, or an agreement that requires the indemnification of a person who meets the standard under Section 8.101(a)(1) constitutes a determination under Section 8.101(a)(3) that indemnification should be paid even though the provision may not have been adopted or authorized in the same manner as the determinations required under Section 8.101(a). The determinations required under Sections 8.101(a)(1) and (2) must be made in a manner provided by Subsection (a). (TBCA 2.02-1.F, G; TNPCA 2.22A.F, G; TREITA 9.20(F), (G); TRLPA 11.06, 11.07.) Sec. 8.104. ADVANCEMENT OF EXPENSES. (a) An enterprise may pay or reimburse reasonable expenses incurred by a governing person, former governing person, or delegate who was, is, or is threatened to be made a respondent in a proceeding in advance of the final disposition of the proceeding without making the determinations required under Section 8.101(a) after the enterprise receives: (1) a written affirmation by the person of the person's good faith belief that the person has met the standard of conduct necessary for indemnification under this chapter; and (2) a written undertaking by or on behalf of the person to repay the amount paid or reimbursed if the final determination is that the person has not met that standard or that indemnification is prohibited by Section 8.102. (b) A provision in the governing documents of the enterprise, a resolution of the owners, members, or governing authority, or an agreement that requires the payment or reimbursement permitted under this section authorizes that payment or reimbursement after the enterprise receives an affirmation and undertaking described by Subsection (a). (c) The written undertaking required by Subsection (a)(2) must be an unlimited general obligation of the person but need not be secured and may be accepted by the enterprise without regard to the person's ability to make repayment. (TBCA 2.02-1.K, L, P; TNPCA 2.22A.K, L, P; TREITA 9.20(K), (L), (P); TRLPA 11.11, 11.12, 11.16.) Sec. 8.105. INDEMNIFICATION OF AND ADVANCEMENT OF EXPENSES TO PERSONS OTHER THAN GOVERNING PERSONS. (a) Notwithstanding any other provision of this chapter but subject to Sections 8.003 and 8.004 and to the extent consistent with other law, an enterprise may indemnify and advance expenses to a person who is not a governing person, including an officer, employee, agent, or delegate, as provided by: (1) the enterprise's governing documents; (2) general or specific action of the enterprise's governing authority; (3) resolution of the enterprise's owners or members; (4) contract; or (5) common law. (b) An enterprise shall indemnify and advance expenses to an officer to the same extent that indemnification or advancement of expenses is required under this chapter for a governing person. (c) A person described by Subsection (a) may seek indemnification or advancement of expenses from an enterprise to the same extent that a governing person may seek indemnification or advancement of expenses under this chapter. (TBCA 2.02-1.O, P, Q; TNPCA 2.22A.O, P, Q; TREITA 9.20(O), (P), (Q); TRLPA 11.15, 11.16, 11.17.) Sec. 8.106. PERMISSIVE INDEMNIFICATION OF AND REIMBURSEMENT OF EXPENSES TO WITNESSES. Notwithstanding any other provision of this chapter, an enterprise may pay or reimburse reasonable expenses incurred by a governing person, officer, employee, agent, delegate, or other person in connection with that person's appearance as a witness or other participation in a proceeding at a time when the person is not a respondent in the proceeding. (TBCA 2.02-1.N; TNPCA 2.22A.N; TREITA 9.20(N); TRLPA 11.14.)
[Sections 8.107-8.150 reserved for expansion]
SUBCHAPTER D. LIABILITY INSURANCE; REPORTING REQUIREMENTS
Sec. 8.151. INSURANCE AND OTHER ARRANGEMENTS. (a) Notwithstanding any other provision of this chapter, an enterprise may purchase or procure or establish and maintain insurance or another arrangement to indemnify or hold harmless an existing or former governing person, delegate, officer, employee, or agent against any liability: (1) asserted against and incurred by the person in that capacity; or (2) arising out of the person's status in that capacity. (b) The insurance or other arrangement established under Subsection (a) may insure or indemnify against the liability described by Subsection (a) without regard to whether the enterprise otherwise would have had the power to indemnify the person against that liability under this chapter. (c) Insurance or another arrangement that involves self-insurance or an agreement to indemnify made with the enterprise or a person that is not regularly engaged in the business of providing insurance coverage may provide for payment of a liability with respect to which the enterprise does not otherwise have the power to provide indemnification only if the insurance or arrangement is approved by the owners or members of the enterprise. (d) For the benefit of persons to be indemnified by the enterprise, an enterprise may, in addition to purchasing or procuring or establishing and maintaining insurance or another arrangement: (1) create a trust fund; (2) establish any form of self-insurance, including a contract to indemnify; (3) secure the enterprise's indemnity obligation by grant of a security interest or other lien on the assets of the enterprise; or (4) establish a letter of credit, guaranty, or surety arrangement. (e) Insurance or another arrangement established under this section may be purchased or procured or established and maintained: (1) within the enterprise; or (2) with any insurer or other person considered appropriate by the governing authority, regardless of whether all or part of the stock, securities, or other ownership interest in the insurer or other person is owned in whole or in part by the enterprise. (f) The governing authority's decision as to the terms of the insurance or other arrangement and the selection of the insurer or other person participating in an arrangement is conclusive. The insurance or arrangement is not voidable and does not subject the governing persons approving the insurance or arrangement to liability, on any ground, regardless of whether the governing persons participating in approving the insurance or other arrangement are beneficiaries of the insurance or arrangement. This subsection does not apply in case of actual fraud. (TBCA 2.02-1.R; TNPCA 2.22A.R; TREITA 9.20(R); TRLPA 11.18.) Sec. 8.152. REPORTS OF INDEMNIFICATION AND ADVANCES. (a) An enterprise shall report in writing to the owners or members of the enterprise an indemnification of or advance of expenses to a governing person. (b) Subject to Subsection (c), the report must be made with or before the notice or waiver of notice of the next meeting of the owners or members of the enterprise and before the next submission to the owners or members of a consent to action without a meeting. (c) The report must be made not later than the first anniversary of the date of the indemnification or advance. (TBCA 2.02-1.S; TNPCA 2.22A.S; TREITA 9.20(S); TRLPA 11.19.)
CHAPTER 9. FOREIGN ENTITIES
SUBCHAPTER A. REGISTRATION
Sec. 9.001. FOREIGN ENTITIES REQUIRED TO REGISTER. (a) To transact business in this state, a foreign entity must register under this chapter if the entity: (1) is a foreign corporation, foreign limited partnership, foreign limited liability company, foreign business trust, foreign real estate investment trust, foreign cooperative, foreign public or private limited company, or another foreign entity, the formation of which, if formed in this state, would require the filing under Chapter 3 of a certificate of formation; or (2) affords limited liability under the law of its jurisdiction of formation for any owner or member. (b) A foreign entity described by Subsection (a) must maintain the entity's registration while transacting business in this state. (CAA 43; TBCA 8.01.A (part); TLLCA 7.01.A (part); TNPCA 8.01.A (part); TPCA 19A(a) (part); TRLPA 9.02(a) (part).) Sec. 9.002. FOREIGN ENTITIES NOT REQUIRED TO REGISTER. (a) A foreign entity not described by Section 9.001(a) may transact business in this state without registering under this chapter. (b) Subsection (a) does not relieve a foreign entity from the duty to comply with applicable requirements under other law to file or register. (c) A foreign entity is not required to register under this chapter if other state law authorizes the entity to transact business in this state. (d) A foreign unincorporated nonprofit association is not required to register under this chapter. (New.) Sec. 9.003. PERMISSIVE REGISTRATION. A foreign entity that is eligible under other law of this state to register to transact business in this state, but that is not registered under that law, may register under this chapter unless that registration is prohibited by the other law. The registration under this chapter confers only the authority provided by this chapter. (TLLCA 1.02.A(9).) Sec. 9.004. REGISTRATION PROCEDURE. (a) A foreign filing entity registers by filing an application for registration as provided by Chapter 4. (b) The application must state: (1) the entity's name and, if that name would not comply with Chapter 5, a name that complies with Chapter 5 under which the entity will transact business in this state; (2) the entity's type; (3) the entity's jurisdiction of formation; (4) the date of the entity's formation; (5) that the entity exists as a valid foreign filing entity of the stated type under the laws of the entity's jurisdiction of formation; (6) for a foreign entity other than a foreign limited partnership: (A) each business or activity that the entity proposes to pursue in this state, which may be stated to be any lawful business or activity under the law of this state; and (B) that the entity is authorized to pursue the same business or activity under the laws of the entity's jurisdiction of formation; (7) the date the foreign entity began or will begin to transact business in this state; (8) the address of the principal office of the foreign filing entity; (9) the address of the initial registered office and the name and the address of the initial registered agent for service of process that Chapter 5 requires to be maintained; (10) the name and address of each of the entity's governing persons; and (11) that the secretary of state is appointed the agent of the foreign filing entity for service of process under the circumstances provided by Section 5.251. (c) A foreign filing entity may register regardless of any differences between the law of the entity's jurisdiction of formation and of this state applicable to the governing of the internal affairs or to the liability of an owner, member, or managerial official. (TBCA 8.01.A (part), 8.05.A (part), 8.06.A; TLLCA 7.01.A (part), 7.05.A, 7.06.A; TNPCA 8.01.A (part), 8.04.A (part), 8.05.A; TPCA 19A; TRLPA 9.01(b), 9.02(a); TRPA 10.02(a) (part).) Sec. 9.005. SUPPLEMENTAL INFORMATION REQUIRED IN APPLICATION FOR REGISTRATION OF FOREIGN FOR-PROFIT CORPORATION. In addition to the information required by Section 9.004, a foreign for-profit corporation's application for registration must state the: (1) aggregate number of shares the for-profit corporation has authority to issue, itemized by classes, par value of shares, shares without par value, and any series in a class; (2) aggregate number of shares issued by the for-profit corporation, itemized by classes, par value of shares, shares without par value, and any series in a class; and (3) amount of the stated capital of the for-profit corporation. (TBCA 8.05.A (part).) Sec. 9.006. SUPPLEMENTAL INFORMATION REQUIRED IN APPLICATION FOR REGISTRATION OF FOREIGN NONPROFIT CORPORATION. In addition to the information required by Section 9.004, a foreign nonprofit corporation's application for registration must state: (1) the names and addresses of the nonprofit corporation's directors and officers; (2) whether or not the nonprofit corporation has members; and (3) any additional information as necessary or appropriate to enable the secretary of state to determine whether the nonprofit corporation is entitled to register to conduct affairs in this state. (TNPCA 8.04.A (part).) Sec. 9.007. SUPPLEMENTAL INFORMATION REQUIRED IN APPLICATION FOR REGISTRATION OF FOREIGN LIMITED LIABILITY PARTNERSHIP. In addition to the information required by Section 9.004, a foreign limited liability partnership's application for registration must state: (1) the federal tax identification number of the partnership; (2) the date of initial registration as a limited liability partnership under the laws of the state of formation; (3) the number of partners at the date of the statement; and (4) that the secretary of state is appointed the agent of the partnership for service of process under the circumstances set forth by Section 5.251. (TRPA 10.02(a) (part).) Sec. 9.008. EFFECT OF REGISTRATION. (a) The registration of a foreign entity is effective when the application filed under Chapter 4 takes effect. The registration remains in effect until the registration terminates, is withdrawn, or is revoked. (b) Except in a proceeding to revoke the registration, the secretary of state's issuance of an acknowledgment that the entity has filed an application is conclusive evidence of the authority of the foreign filing entity to transact business in this state under the entity's name or under another name stated in the application, in accordance with Section 9.004(b)(1). (TBCA 8.07; TLLCA 7.07; TNPCA 8.06; TRLPA 2.07(b).) Sec. 9.009. AMENDMENTS TO REGISTRATION. (a) A foreign filing entity must amend its registration to change its name or the business or activity stated in its application for registration if the name or business or activity has changed. (b) A foreign filing entity may amend its application for registration by filing an application for amendment of registration in the manner required by Chapter 4. (c) The application for amendment must be filed on or before the 91st day following the date of the change. (TBCA 8.13.A, B, D; TLLCA 7.08.A, B, D; TNPCA 8.12.A, B, D; TRLPA 9.05.) Sec. 9.010. NAME CHANGE OF FOREIGN ENTITY. If a foreign entity authorized to conduct affairs in this state changes its name to a name that would cause the entity to be denied an application for registration under this subchapter, the entity's registration must be suspended. An entity the registration of which has been suspended under this section may conduct affairs in this state only after the entity: (1) changes its name to a name that is available to it under the laws of this state; or (2) otherwise complies with this chapter. (TBCA 8.04; TLLCA 7.04; TNPCA 8.03.B.) Sec. 9.011. VOLUNTARY WITHDRAWAL OF REGISTRATION. (a) A foreign filing entity registered in this state may withdraw the entity's registration at any time by filing a certificate of withdrawal in the manner required by Chapter 4. (b) A certificate of withdrawal must state: (1) the name of the foreign filing entity as registered in this state; (2) the type of entity and the entity's jurisdiction of formation; (3) the address of the principal office of the foreign filing entity; (4) that the foreign filing entity no longer is transacting business in this state; (5) that the foreign filing entity: (A) revokes the authority of the entity's registered agent in this state to accept service of process; and (B) consents that service of process in any action, suit, or proceeding stating a cause of action arising in this state during the time the foreign filing entity was authorized to transact business in this state may be made on the foreign filing entity by serving the secretary of state; (6) an address to which the secretary of state may mail a copy of any process against the foreign filing entity served on the secretary of state; and (7) that any money due or accrued to the state has been paid or that adequate provision has been made for the payment of that money. (c) A certificate from the comptroller that all franchise taxes have been paid must be filed with the certificate of withdrawal in accordance with Chapter 4 if the foreign filing entity is a foreign professional corporation, foreign for-profit corporation, or foreign limited liability company. (d) If the existence or separate existence of a foreign filing entity registered in this state terminates because of dissolution, termination, merger, conversion, or other circumstances, a certificate by an authorized governmental official of the entity's jurisdiction of formation that evidences the termination shall be filed with the secretary of state. (e) The registration of the foreign filing entity in this state terminates when a certificate of withdrawal under this section or a certificate evidencing termination under Subsection (d) is filed. (f) If the address stated in a certificate of withdrawal under Subsection (b)(6) changes, the foreign filing entity must promptly amend the certificate of withdrawal to update the address. (g) A certificate of withdrawal does not terminate the authority of the secretary of state to accept service of process on the foreign filing entity with respect to a cause of action arising out of business or activity in this state. (TBCA 8.14, 8.15; TLLCA 7.09, 7.10; TNPCA 8.13; TRLPA 9.06.)
[Sections 9.012-9.050 reserved for expansion]
SUBCHAPTER B. FAILURE TO REGISTER
Sec. 9.051. TRANSACTING BUSINESS OR MAINTAINING COURT PROCEEDING WITHOUT REGISTRATION. (a) On application by the attorney general, a court may enjoin a foreign filing entity or the entity's agent from transacting business in this state if: (1) the entity is not registered in this state; or (2) the entity's registration is obtained on the basis of a false or misleading representation. (b) A foreign filing entity or the entity's legal representative may not maintain an action, suit, or proceeding in a court of this state, brought either directly by the entity or in the form of a derivative action in the entity's name, on a cause of action that arises out of the transaction of business in this state unless the foreign filing entity is registered in accordance with this chapter. This subsection does not affect the rights of an assignee of the foreign filing entity as: (1) the holder in due course of a negotiable instrument; or (2) the bona fide purchaser for value of a warehouse receipt, security, or other instrument made negotiable by law. (c) The failure of a foreign filing entity to register does not: (1) affect the validity of any contract or act of the foreign filing entity; (2) prevent the entity from defending an action, suit, or proceeding in a court in this state; or (3) except as provided by Subsection (d), cause any owner, member, or managerial official of the foreign filing entity to become liable for the debts, obligations, or liabilities of the foreign filing entity. (d) Subsection (c)(3) does not apply to a general partner of a foreign limited partnership. (TBCA 8.18.A, B; TLLCA 7.13.A, B; TNPCA 8.17; TRLPA 9.07(a), (b), (c), 9.08; TRPA 10.03.) Sec. 9.052. CIVIL PENALTY. (a) A foreign filing entity that transacts business in this state and is not registered under this chapter is liable to this state for a civil penalty in an amount equal to all: (1) fees and taxes that would have been imposed by law on the entity had the entity registered when first required and filed all reports required by law; and (2) penalties and interest imposed by law for failure to pay those fees and taxes. (b) The attorney general may bring suit to recover amounts due to this state under this section. (TBCA 8.18.C (part); TLLCA 7.13.C (part); TRLPA 9.07(d) (part).) Sec. 9.053. VENUE. In addition to any other venue authorized by law, a suit under Section 9.051 or 9.052 may be brought in Travis County. (New.) Sec. 9.054. LATE FILING FEE. The secretary of state may collect from a foreign filing entity a late filing fee equal to the registration fee for the entity for each year of delinquency if the entity has transacted business in this state for more than 90 days. The secretary may condition the effectiveness of a registration on the payment of the late filing fee. (TBCA 8.18.C (part); TLLCA 7.13.C (part); TRLPA 9.07(d).) Sec. 9.055. REQUIREMENTS OF OTHER LAW. This chapter does not excuse a foreign entity from complying with duties imposed under other law, including other chapters of this code, relating to filing or registration requirements. (TBCA 8.02; TLLCA 7.02; TNPCA 8.02; TRLPA 9.01(c).)
[Sections 9.056-9.100 reserved for expansion]
SUBCHAPTER C. REVOCATION OF REGISTRATION BY SECRETARY OF STATE
Sec. 9.101. REVOCATION OF REGISTRATION BY SECRETARY OF STATE. (a) If it appears to the secretary of state that, with respect to a foreign filing entity, a circumstance described by Subsection (b) exists, the secretary of state may notify the entity of the circumstance by mail or certified mail addressed to the foreign filing entity at the entity's registered office or principal place of business as shown on the records of the secretary of state. (b) The secretary of state may revoke a foreign filing entity's registration if the secretary of state finds that the entity has failed to, and, before the 91st day after the date notice was mailed, has not corrected the entity's failure to: (1) file a report within the period required by law or pay a fee or penalty prescribed by law when due and payable; (2) maintain a registered agent or registered office in this state as required by law; (3) amend its registration when required by law; or (4) pay a fee required in connection with a filing, or payment of the fee was dishonored when presented by the state for payment. (TBCA 8.16.B, C(1); TLLCA 7.11.B, C(1); TNPCA 8.15.B, C(1); TRLPA 13.06(a), (b); TRPA 10.02(i).) Sec. 9.102. CERTIFICATE OF REVOCATION. (a) If revocation of a registration is required, the secretary of state shall: (1) file a certificate of revocation; and (2) deliver a certificate of revocation by regular or certified mail to the foreign filing entity at its registered office or principal place of business. (b) The certificate of revocation must state: (1) that the foreign filing entity's registration has been revoked; and (2) the date and cause of the revocation. (c) Except as otherwise provided by this chapter, the revocation of a foreign filing entity's registration under this subchapter takes effect on the date the certificate of revocation is filed. (TBCA 8.16.D; TLLCA 7.11.D; TNPCA 8.15.D.) Sec. 9.103. REINSTATEMENT BY SECRETARY OF STATE AFTER REVOCATION. (a) The secretary of state shall reinstate the registration of an entity that has been revoked under this subchapter if the entity files an application for reinstatement in accordance with Section 9.104, accompanied by each amendment to the entity's registration that is required by intervening events, including circumstances requiring an amendment to the name of the entity or the name under which the entity is registered to transact business in this state as described in Section 9.105, and: (1) the entity has corrected the circumstances that led to the revocation and any other circumstances that may exist of the types described by Section 9.101(b), including the payment of fees, interest, or penalties; or (2) the secretary of state finds that the circumstances that led to the revocation did not exist at the time of revocation. (b) If a foreign filing entity's registration is reinstated before the third anniversary of the revocation, the entity is considered to have been registered or in existence at all times during the period of revocation. (TBCA 8.16.E (part); TLLCA 7.11.E (part); TNPCA 8.15.E (part).) Sec. 9.104. PROCEDURES FOR REINSTATEMENT. (a) A foreign filing entity, to have its registration reinstated, must complete the requirements of this section not later than the third anniversary of the date the revocation of the entity's registration took effect. (b) The foreign filing entity shall file a certificate of reinstatement in accordance with Chapter 4. (c) The certificate of reinstatement must contain: (1) the name of the foreign filing entity; (2) the filing number assigned by the filing officer to the entity; (3) the effective date of the revocation of the entity's registration; and (4) the name of the entity's registered agent and the address of the entity's registered office. (d) A letter of eligibility from the comptroller stating that the foreign filing entity has satisfied all franchise tax liabilities and its registration may be reinstated must be filed with the certificate of reinstatement if the foreign filing entity is a professional corporation, for-profit corporation, or limited liability company. (e) The registration of a foreign filing entity may not be reinstated under this section if the termination occurred as a result of: (1) an order of a court; or (2) forfeiture under the Tax Code. (TBCA 8.16.E (part); TLLCA 7.11.E (part); TNPCA 8.15.E (part).) Sec. 9.105. USE OF NAME SIMILAR TO PREVIOUSLY REGISTERED NAME. If the secretary of state determines that a foreign filing entity's name or the name under which it is registered to transact business in this state 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 amends its registration to change its name or obtains consent for the use of the similar name. (TBCA 8.16.E (part); TLLCA 7.11.E (part); TNPCA 8.15.E (part); TRLPA 13.09(b) (part).) Sec. 9.106. REINSTATEMENT OF REGISTRATION FOLLOWING TAX FORFEITURE. A foreign filing entity whose registration has been revoked under the provisions of the Tax Code must follow the procedures in the Tax Code to reinstate its registration. (Op. Tex. Att'y Gen. No. M-600 (1970).)
[Sections 9.107-9.150 reserved for expansion]
SUBCHAPTER D. JUDICIAL REVOCATION OF REGISTRATION
Sec. 9.151. REVOCATION OF REGISTRATION BY COURT ACTION. (a) A court may revoke the registration of a foreign filing entity if, as a result of an action brought under Section 9.153, the court finds that one or more of the following problems exist: (1) the entity did not comply with a condition precedent to the issuance of the entity's registration or an amendment to the registration; (2) the entity's registration or any amendment to the entity's registration was fraudulently filed; (3) a misrepresentation of a material matter was made in an application, report, affidavit, or other document the entity submitted under this code; (4) the entity has continued to transact business beyond the scope of the purpose or purposes expressed in the entity's registration; or (5) public interest requires revocation because: (A) the entity has been convicted of a felony or a high managerial agent of the entity has been convicted of a felony committed in the conduct of the entity's affairs; (B) the entity or the high managerial agent has engaged in a persistent course of felonious conduct; and (C) revocation is necessary to prevent future felonious conduct of the same character. (b) Sections 9.152-9.157 do not apply to Subsection (a)(5). (TBCA 8.16.A, F, G; TLLCA 7.11.A, F; TNPCA 8.15.A, F, G.) Sec. 9.152. NOTIFICATION OF CAUSE BY SECRETARY OF STATE. (a) The secretary of state shall provide to the attorney general: (1) the name of a foreign filing entity that has given cause under Section 9.151 for revocation of its registration; and (2) the facts relating to the cause for revocation. (b) When notice is provided under Subsection (a), the secretary of state shall send written notice of the circumstances to the foreign filing entity at its registered office in this state. The notice must state that the secretary of state has given notice under Subsection (a) and the grounds for the notification. The secretary of state must record the date a notice required by this subsection is sent. (c) A court shall accept a certificate issued by the secretary of state as to the facts relating to the cause for judicial revocation of a foreign filing entity's registration and the sending of a notice under Subsection (b) as prima facie evidence of the facts stated in the certificate and the sending of the notice. (TBCA 7.02.A, B; TNPCA 7.02.A, B; TLLCA 8.12.A (part).) Sec. 9.153. FILING OF ACTION BY ATTORNEY GENERAL. The attorney general shall file an action against a foreign filing entity in the name of the state seeking the revocation of the entity's registration if: (1) the entity has not cured the problems for which revocation is sought before the 31st day after the date the notice under Section 9.152(b) is mailed; and (2) the attorney general determines that cause exists for judicial revocation of the entity's registration under Section 9.151. (TBCA 7.02.C; TNPCA 7.02.C; TLLCA 8.12.A (part).) Sec. 9.154. CURE BEFORE FINAL JUDGMENT. An action filed by the attorney general under Section 9.153 shall be abated if, before a district court renders judgment on the action, the foreign filing entity: (1) cures the problems for which revocation is sought; and (2) pays the costs of the action. (TBCA 7.02.D; TNPCA 7.02.D; TLLCA 8.12.A (part).) Sec. 9.155. JUDGMENT REQUIRING REVOCATION. If a district court finds in an action brought under this subchapter that proper grounds exist under Section 9.151(a) for revocation of the foreign filing entity's registration, the court shall: (1) make findings to that effect; and (2) subject to Section 9.156, enter a judgment not earlier than the fifth day after the date the court makes its findings. (TBCA 7.02.E (part); TNPCA 7.02.E (part); TLLCA 8.12.A (part).) Sec. 9.156. STAY OF JUDGMENT. (a) If, in an action brought under this subchapter, a foreign filing entity has proved by a preponderance of the evidence and obtained a finding that the problems for which the foreign filing entity has been found guilty were not wilful or the result of a failure to take reasonable precautions, the entity may make a sworn application to the court for a stay of entry of the judgment to allow the foreign filing entity a reasonable opportunity to cure the problems for which it has been found guilty. An application made under this subsection must be made not later than the fifth day after the date the court makes its findings under Section 9.155. (b) After a foreign filing entity has made an application under Subsection (a), a court shall stay the entry of the judgment if the court is reasonably satisfied after considering the application and evidence offered for or against the application that the foreign filing entity: (1) is able and intends in good faith to cure the problems for which it has been found guilty; and (2) has not applied for the stay without just cause. (c) A court shall stay an entry of judgment under Subsection (b) for the period the court determines is reasonably necessary to afford the foreign filing entity the opportunity to cure its problems if the entity acts with reasonable diligence. The court may not stay the entry of the judgment for longer than 60 days after the date the court's findings are made. (d) The court shall dismiss an action against a foreign filing entity that, during the period the action is stayed by the court under this section, cures the problems for which revocation is sought and pays all costs accrued in the action. (e) If a court finds that a foreign filing entity has not cured the problems for which revocation is sought within the period prescribed by Subsection (c), the court shall enter final judgment requiring revocation of the foreign filing entity's registration. (TBCA 7.02.E (part); TNPCA 7.02.E (part); TLLCA 8.12.A (part).) Sec. 9.157. OPPORTUNITY FOR CURE AFTER AFFIRMATION OF FINDINGS BY APPEALS COURT. (a) An appellate court that affirms a trial court's findings against a foreign filing entity under this subchapter shall remand the case to the trial court with instructions to grant the foreign filing entity an opportunity to cure the problems for which the entity has been found guilty if: (1) the foreign filing entity did not make an application to the trial court for stay of the entry of the judgment; (2) the appellate court is satisfied that the appeal was taken in good faith and not for purpose of delay or with no sufficient cause; (3) the appellate court finds that the problems for which the foreign filing entity has been found guilty are capable of being cured; and (4) the foreign filing entity has prayed for the opportunity to cure its problems in the appeal. (b) The appellate court shall determine the period, which may not be longer than 60 days after the date the case is remanded to the trial court, to be afforded to a foreign filing entity to enable the foreign filing entity to cure its problems under Subsection (a). (c) The trial court to which an action against a foreign filing entity has been remanded under this section shall dismiss the action if, during the period prescribed by the appellate court for that conduct, the foreign filing entity cures the problems for which revocation is sought and pays all costs accrued in the action. (d) If a foreign filing entity has not cured the problems for which revocation is sought within the period prescribed by the appellate court under Subsection (b), the judgment requiring revocation shall become final. (TBCA 7.02.F; TNPCA 7.02.F; TLLCA 8.12.A (part).) Sec. 9.158. JURISDICTION AND VENUE. (a) The attorney general shall bring an action for the revocation of the registration of a foreign filing entity under this subchapter in: (1) a district court of the county in which the registered office or principal place of business of the filing entity in this state is located; or (2) a district court of Travis County. (b) A district court described by Subsection (a) has jurisdiction of the action for revocation of the registration of the foreign filing entity. (TBCA 7.03 (part); TNPCA 7.03 (part); TLLCA 8.12.A (part).) Sec. 9.159. PROCESS IN STATE ACTION. Citation in an action for the involuntary revocation of a foreign filing entity's registration under this subchapter shall be issued and served as provided by law. (TBCA 7.03 (part); TNPCA 7.03 (part); TLLCA 8.12.A (part).) Sec. 9.160. PUBLICATION OF NOTICE. (a) If process in an action under this subchapter is returned not found, the attorney general shall publish notice in a newspaper in the county in which the registered office of the foreign filing entity in this state is located. The notice must contain: (1) a statement of the pendency of the action; (2) the title of the court; (3) the title of the action; and (4) the earliest date on which default judgment may be entered by the court. (b) Notice under this section must be published at least once a week for two consecutive weeks beginning at any time after the citation has been returned. (c) The attorney general may include in one published notice the name of each foreign filing entity against which an action for involuntary revocation is pending in the same court. (d) Not later than the 10th day after the date notice under this section is first published, the attorney general shall send a copy of the notice to the appropriate foreign filing entity at the foreign filing entity's registered office in this state. A certificate from the attorney general regarding the sending of the notice is prima facie evidence that notice was sent under this section. (e) Unless a foreign filing entity has been served with citation, a default judgment may not be taken against the entity before the 31st day after the date the notice is first published. (TBCA 7.03 (part); TNPCA 7.03 (part); TLLCA 8.12.A (part).) Sec. 9.161. FILING OF DECREE OF REVOCATION AGAINST FOREIGN FILING ENTITY. (a) The clerk of a court that enters a decree revoking the registration of a foreign filing entity shall file a certified copy of the decree in accordance with Chapter 4. (b) A fee may not be charged for the filing of a decree under this section. (TBCA 8.17; TLLCA 7.12; TNPCA 8.16.)
[Sections 9.162-9.200 reserved for expansion]
SUBCHAPTER E. BUSINESS, RIGHTS, AND OBLIGATIONS
Sec. 9.201. BUSINESS OF FOREIGN ENTITY. A foreign entity may not conduct in this state a business or activity that is not permitted by this code to be transacted by the domestic entity to which it most closely corresponds, unless other law of this state authorizes the entity to conduct the business or activity. (TBCA 8.01.A (part); TLLCA 7.01.A (part); TNPCA 8.01.A (part).) Sec. 9.202. RIGHTS AND PRIVILEGES. A foreign nonfiling entity or a foreign filing entity registered under this chapter enjoys the same but no greater rights and privileges as the domestic entity to which it most closely corresponds. (TBCA 8.02 (part); TLLCA 7.02 (part); TNPCA 8.02 (part); TRLPA 9.01(c).) Sec. 9.203. OBLIGATIONS AND LIABILITIES. Subject to this code and other laws of this state and except as provided by Subchapter C, Chapter 1, in any matter that affects the transaction of intrastate business in this state, a foreign entity and each member, owner, or managerial official of the entity is subject to the same duties, restrictions, penalties, and liabilities imposed on a domestic entity to which it most closely corresponds or on a member, owner, or managerial official of that domestic entity. (TBCA 8.02 (part); TLLCA 7.02 (part); TNPCA 8.02 (part).) Sec. 9.204. RIGHT OF FOREIGN FILING ENTITY TO PARTICIPATE IN BUSINESS OF CERTAIN DOMESTIC ENTITIES. A vote cast or consent provided by a foreign filing entity with respect to its ownership or membership interest in a domestic entity of which the foreign filing entity is a lawful owner or member, and the foreign filing entity's participation in the management and control of the business and affairs of the domestic entity to the extent of the participation of other owners or members, are not invalidated if the foreign filing entity does not register to transact business in this state, subject to all law governing a domestic entity, including the antitrust law of this state. (TBCA 2.29.E; TREITA 13.10(F).)
[Sections 9.205-9.250 reserved for expansion]
SUBCHAPTER F. DETERMINATION OF TRANSACTING BUSINESS IN
THIS STATE
Sec. 9.251. ACTIVITIES NOT CONSTITUTING TRANSACTING BUSINESS IN THIS STATE. For purposes of this chapter, activities that do not constitute transaction of business in this state include: (1) maintaining or defending an action or suit or an administrative or arbitration proceeding, or effecting the settlement of: (A) such an action, suit, or proceeding; or (B) a claim or dispute to which the entity is a party; (2) holding a meeting of the entity's managerial officials, owners, or members or carrying on another activity concerning the entity's internal affairs; (3) maintaining a bank account; (4) maintaining an office or agency for: (A) transferring, exchanging, or registering securities the entity issues; or (B) appointing or maintaining a trustee or depositary related to the entity's securities; (5) voting the interest of an entity the foreign entity has acquired; (6) effecting a sale through an independent contractor; (7) creating, as borrower or lender, or acquiring indebtedness or a mortgage or other security interest in real or personal property; (8) securing or collecting a debt due the entity or enforcing a right in property that secures a debt due the entity; (9) transacting business in interstate commerce; (10) conducting an isolated transaction that: (A) is completed within a period of 30 days; and (B) is not in the course of a number of repeated, similar transactions; (11) in a case that does not involve an activity that would constitute the transaction of business in this state if the activity were one of a foreign entity acting in its own right: (A) exercising a power of executor or administrator of the estate of a nonresident decedent under ancillary letters issued by a court of this state; or (B) exercising a power of a trustee under the will of a nonresident decedent, or under a trust created by one or more nonresidents of this state, or by one or more foreign entities; (12) regarding a debt secured by a mortgage or lien on real or personal property in this state: (A) acquiring the debt in a transaction outside this state or in interstate commerce; (B) collecting or adjusting a principal or interest payment on the debt; (C) enforcing or adjusting a right or property securing the debt; (D) taking an action necessary to preserve and protect the interest of the mortgagee in the security; or (E) engaging in any combination of transactions described by this subdivision; (13) investing in or acquiring, in a transaction outside of this state, a royalty or other nonoperating mineral interest; or (14) the execution of a division order, contract of sale, or other instrument incidental to ownership of a nonoperating mineral interest. (TBCA 8.01.B; TLLCA 7.01.B; TNPCA 8.01.B; TRLPA 9.02(b); TRPA 10.04.) Sec. 9.252. OTHER ACTIVITIES. The list provided by Section 9.251 is not exclusive of activities that do not constitute transacting business in this state for the purposes of this code. (TBCA 8.01.B (part); TLLCA 7.01.B (part); TNPCA 8.01.B (part); TRLPA 9.02(b) (part); TRPA 10.04 (part).)
[Sections 9.253-9.300 reserved for expansion]
SUBCHAPTER G. MISCELLANEOUS PROVISIONS
Sec. 9.301. APPLICABILITY OF CODE TO CERTAIN FOREIGN ENTITIES. (a) Except as provided by a statute described by this subsection, the provisions of this code governing a foreign entity apply to a foreign entity registered or granted authority to transact business in this state under: (1) a special statute that does not contain a provision regarding a matter provided for by this code with respect to a foreign entity; or (2) another statute that specifically provides that the general law for the granting of a registration or certificate of authority to the foreign entity to transact business in this state supplements the special statute. (b) Except as provided by a special statute described by Subsection (a), a document required to be filed with the secretary of state under the special statute must be signed and filed in accordance with Chapter 4. (TBCA 9.14.A; TMLCA 1.03; TNPCA 10.04.A.)
CHAPTER 10. MERGERS, INTEREST EXCHANGES, CONVERSIONS,
AND SALES OF ASSETS
SUBCHAPTER A. MERGERS
Sec. 10.001. ADOPTION OF PLAN OF MERGER. (a) A domestic entity may effect a merger by complying with the applicable provisions of this code. A merger must be set forth in a plan of merger. (b) To effect a merger, each domestic entity that is a party to the merger must act on and approve the plan of merger in the manner prescribed by this code for the approval of mergers by the domestic entity. (c) A domestic entity subject to dissenters' rights must provide the notice required by Section 10.355. (d) If one or more non-code organizations is a party to the merger or is to be created by the plan of merger: (1) to effect the merger each non-code organization must take all action required by this code and its governing documents; (2) the merger must be permitted by: (A) the law of the state or country under whose law each non-code organization is incorporated or organized; or (B) the governing documents of each non-code organization if the documents are not inconsistent with the law under which the non-code organization is incorporated or organized; and (3) in effecting the merger each non-code organization that is a party to the merger must comply with: (A) the applicable laws under which it is incorporated or organized; and (B) the governing documents of the non-code organization. (e) A domestic entity may not merge under this subchapter if an owner or member of that entity that is a party to the merger will, as a result of the merger, become personally liable, without that owner's or member's consent, for a liability or other obligation of any other person. (TBCA 5.01.A, 5.03.A; TLLCA 10.01; TNPCA 5.01.A, 5.02.A, 5.07.A; TREITA 23.10(A); TRLPA 2.11(a) (part); TRPA 9.02(a) (part).) Sec. 10.002. PLAN OF MERGER: REQUIRED PROVISIONS. (a) A plan of merger must include: (1) the name of each organization that is a party to the merger; (2) the name of each organization that will survive the merger; (3) the name of each new organization that is to be created by the plan of merger; (4) a description of the organizational form of each organization that is a party to the merger or that is to be created by the plan of merger and its jurisdiction of formation; (5) the manner and basis of converting any of the ownership or membership interests of each organization that is a party to the merger into: (A) ownership interests, membership interests, obligations, rights to purchase securities, or other securities of one or more of the surviving or new organizations; (B) cash; (C) other property, including ownership interests, membership interests, obligations, rights to purchase securities, or other securities of any other person or entity; or (D) any combination of the items described by Paragraphs (A)-(C); (6) the certificate of formation of each new domestic filing entity to be created by the plan of merger; (7) the governing documents of each new domestic nonfiling entity to be created by the plan of merger; and (8) the governing documents of each non-code organization that: (A) is to survive the merger or to be created by the plan of merger; and (B) is an entity that is not: (i) organized under the laws of any state or the United States; or (ii) required to file its certificate of formation or similar document under which the entity is organized with the appropriate governmental authority. (b) An item required by Subsections (a)(6)-(8) may be included in the plan of merger by an attachment or exhibit to the plan. (c) If the plan of merger provides for a manner and basis of converting an ownership or membership interest that may be converted in a manner or basis different than any other ownership or membership interest of the same class or series of the ownership or membership interest, the manner and basis of conversion must be included in the plan of merger in the same manner as provided by Subsection (a)(5). (TBCA 5.01.B (part); TLLCA 10.02.A (part); TNPCA 5.01.B (part), 5.02.B (part); TREITA 23.10(B) (part); TRLPA 2.11(b) (part); TRPA 9.02(b) (part).) Sec. 10.003. CONTENTS OF PLAN OF MERGER: MORE THAN ONE SUCCESSOR. If more than one organization is to survive or to be created by the plan of merger, the plan of merger must include: (1) the manner and basis of allocating and vesting the property of each organization that is a party to the merger among one or more of the surviving or new organizations; (2) the name of each surviving or new organization that is primarily obligated for the payment of the fair value of an ownership or membership interest of an owner or member of a domestic entity subject to dissenters' rights that is a party to the merger and who complies with the requirements for dissent and appraisal under this code applicable to the domestic entity; and (3) the manner and basis of allocating each liability and obligation of each organization that is a party to the merger, or adequate provisions for the payment and discharge of each liability and obligation, among one or more of the surviving or new organizations. (TBCA 5.01.B (part); TLLCA 10.02.A (part); TREITA 23.10(B) (part); TRLPA 2.11(b) (part); TRPA 9.02(b) (part).) Sec. 10.004. PLAN OF MERGER: PERMISSIVE PROVISIONS. A plan of merger may include: (1) amendments to the governing documents of any surviving organization; (2) provisions relating to an interest exchange, including a plan of exchange; and (3) any other provisions relating to the merger that are not required by this chapter. (TBCA 5.01.C; TLLCA 10.02.B; TNPCA 5.01.B (part), 5.02.B (part); TREITA 23.10(C); TRLPA 2.11(c); TRPA 9.02(c).) Sec. 10.005. CREATION OF HOLDING COMPANY BY MERGER. (a) In this section: (1) "Direct or indirect wholly owned subsidiary" means, with respect to a domestic entity, another domestic entity, all of the outstanding voting ownership or membership interests of which are owned by the domestic entity or by one or more other domestic entities or non-code organizations, all of the outstanding voting ownership or membership interests of which are owned by the domestic entity or one or more other wholly owned domestic entities or non-code organizations. (2) "Holding company" means a domestic entity that, from its organization until a merger takes effect, was at all times a direct or indirect wholly owned subsidiary of the domestic entity and the ownership or membership interests of which are issued in the merger. (b) A domestic entity may, without owner approval and pursuant to a plan of merger, restructure the ownership structure of that entity to create a holding company structure under this chapter and the provisions of this code under which the entity was formed. The approval of the owners or members of a domestic entity of a plan of merger that creates a holding company is not required if: (1) approval is not otherwise required by the governing documents of the domestic entity; (2) the domestic entity merges with a direct or indirect domestic wholly owned entity; (3) after the merger the domestic entity or its successor is a direct or indirect wholly owned entity of a holding company; (4) the domestic entity and the direct or indirect wholly owned entity are the only parties to the merger; (5) each ownership or membership interest of the domestic entity that is outstanding preceding the merger is converted in the merger into an ownership or membership interest of the holding company having the same designations, preferences, limitations, and relative rights as the ownership or membership interest held by the owner or member in the domestic entity; (6) the holding company is a domestic entity of the same organizational form as the merging domestic entity; (7) except as provided by Subsections (c) and (d), the initial governing documents of the holding company contain provisions identical to the governing documents of the domestic entity preceding the merger; (8) except as provided by Subsections (c) and (d), the initial governing documents of the surviving entity contain provisions identical to the governing documents of the domestic entity preceding the merger; (9) the governing persons of the domestic entity become or remain the governing persons of the holding company when the merger takes effect; (10) the owners or members of the domestic entity will not recognize gain or loss for United States federal income tax purposes or any other tax benefit or attribute as determined by the governing authority of the domestic entity; and (11) the governing authority of the domestic entity adopts a resolution approving the plan of merger. (c) Subsections (b)(7) and (8) do not require identical provisions regarding the incorporator or incorporators, the entity name, the registered office and agent, the initial governing persons, and the initial subscribers of ownership interests and provisions contained in any amendment to the certificate as are necessary to effect a change, exchange, reclassification, or cancellation of ownership or membership interests, if the change, exchange, reclassification, or cancellation was in effect preceding the merger. (d) Notwithstanding Subsection (b)(8): (1) the governing documents of the surviving entity must require that an act or transaction by or involving the surviving entity that requires for its approval under this code the approval of the owners or members of the merging domestic entity must, by specific reference to this section, require the approval of the owners or members of the holding company, or any successor by merger, by the same vote as is required by this code and the governing documents of the surviving entity; and (2) the governing documents of the surviving entity may change the classes and series of ownership or membership interests and the number of ownership or membership interests that the surviving entity is authorized to issue. (e) To the extent the provisions contained in Section 21.606 apply to a domestic entity and its owners or members when a merger takes effect under this section, those provisions continue to apply to the holding company and its owners or members immediately after the merger takes effect as though the holding company were the domestic entity. All ownership or membership interests of the holding company acquired in the merger, for purposes of Section 21.606, are considered to have been acquired at the time the ownership or membership interest of the domestic entity converted in the merger was acquired. Any owner or member who, preceding the merger, was not an affiliated owner or member as described by Section 21.606 does not solely by reason of the merger become an affiliated owner or member of the holding company. (f) If the name of a holding company immediately following the effectiveness of a merger under this section is the same as the name of the domestic entity preceding the merger, the ownership or membership interests of the holding company into which the ownership or membership interests of the domestic entity are merged are represented by the certificates, if any, that previously represented the ownership or membership interests in the domestic entity. (g) This section shall not apply to partnerships. (TBCA 5.03.H, I (part), J, K.) Sec. 10.006. SHORT FORM MERGER. (a) A parent organization that owns at least 90 percent of the outstanding ownership or membership interests of each class and series of each of one or more subsidiary organizations may merge with one or more of the subsidiary organizations as provided by this section if: (1) at least one of the parties to the merger is a domestic entity and each other party is a domestic entity or another non-code organization organized under the laws of a jurisdiction that permits a merger of the type authorized by this chapter; and (2) the resulting organization or organizations are the parent organization, one or more existing subsidiary organizations, or one or more new organizations. (b) No action by any subsidiary organization that is a domestic entity is required to approve the merger. (c) If the parent organization will not survive the merger, a plan of merger must be adopted by action of the parent organization in the same manner as a plan of merger not governed by this section or Section 10.005. (d) If the parent organization will survive the merger, the merger is required to be approved only by a resolution adopted by the governing authority of the parent organization. (e) Sections 10.001(c)-(e), 10.002(c), 10.003, and 10.007-10.010 apply to a merger approved under Subsection (d), except that the resolution approving the merger should be considered the plan of merger for purposes of those sections. (f) The resolution approving the merger under Subsection (d) must describe: (1) the basic terms of the merger; (2) the organizations that are party to the merger; and (3) the organizations that survive the merger. (g) If the parent organization does not own all of the outstanding ownership or membership interests of each class or series of ownership or membership interests of each subsidiary organization that is a party to the merger, the resolution of the parent organization required by Subsection (d) must describe the terms of the merger, including the cash or other property, including ownership or membership interests, obligations, rights to purchase securities, or other securities of any person or organization or any combination of the ownership or membership interests, obligations, rights, or other securities, to be used, paid, or delivered by the parent organization on surrender of each ownership or membership interest of the subsidiary organizations not owned by the parent organization. (h) An entity is not disqualified from effecting a merger under any other provision of this chapter because it qualifies for a merger under this section. (i) This section shall not apply if a subsidiary organization that is a party to the merger is a partnership. (TBCA 5.16.A, B (part), C, D, E, F; TLLCA 10.05.A, B (part), C.) Sec. 10.007. EFFECTIVENESS OF MERGER. Except as otherwise provided by Subchapter B, Chapter 4, a merger takes effect at the time provided by the plan of merger, except that a merger that requires a filing under Subchapter D takes effect on the acceptance of the filing of the certificate of merger by the secretary of state or county clerk, as appropriate. (TBCA 5.05, 5.16.D; TLLCA 10.03.C; TNPCA 5.05, 5.07.B (part); TREITA 23.50; TRLPA 2.11(f); TRPA 9.02(f).) Sec. 10.008. EFFECT OF MERGER. (a) When a merger takes effect: (1) the separate existence of each domestic entity that is a party to the merger, other than a surviving or new domestic entity, ceases; (2) all rights, title, and interests to all real estate and other property owned by each organization that is a party to the merger is allocated to and vested, subject to any existing liens or other encumbrances on the property, in one or more of the surviving or new organizations as provided in the plan of merger without: (A) reversion or impairment; (B) any further act or deed; or (C) any transfer or assignment having occurred; (3) all liabilities and obligations of each organization that is a party to the merger are allocated to one or more of the surviving or new organizations in the manner provided by the plan of merger; (4) each surviving or new domestic organization to which a liability or obligation is allocated under the plan of merger is the primary obligor for the liability or obligation, and, except as otherwise provided by the plan of merger or by law or contract, no other party to the merger, other than a surviving domestic entity or non-code organization liable or otherwise obligated at the time of the merger, and no other new domestic entity or non-code organization created under the plan of merger is liable for the debt or other obligation; (5) any proceeding pending by or against any domestic entity or by or against any non-code organization that is a party to the merger may be continued as if the merger did not occur, or the surviving or new domestic entity or entities or the surviving or new non-code organization or non-code organizations to which the liability, obligation, asset, or right associated with that proceeding is allocated to and vested in under the plan of merger may be substituted in the proceeding; (6) the governing documents of each surviving domestic entity are amended to the extent provided by the plan of merger; (7) each new filing entity whose certificate of formation is included in the plan of merger under this chapter, on meeting any additional requirements, if any, of this code for its formation, is formed as a domestic entity under this code as provided by the plan of merger; (8) the ownership or membership interests of each organization that is a party to the merger and that are to be converted or exchanged, in whole or part, into ownership or membership interests, obligations, rights to purchase securities, or other securities of one or more of the surviving or new organizations, into cash or other property, including ownership or membership interests, obligations, rights to purchase securities, or other securities of any organization, or into any combination of these are converted and exchanged and the former owners or members who held ownership or membership interests of each domestic entity that is a party to the merger are entitled only to the rights provided by the certificate of merger or, if applicable, any rights to receive the fair value for the ownership or membership interests previously held by them provided under this code; and (9) notwithstanding Subdivision (4), the surviving or new organization named in the plan of merger as primarily obligated to pay the fair value of an ownership or membership interest under Section 10.003(2) is the primary obligor for that payment and all other surviving or new organizations are secondarily liable for that payment. (b) If the plan of merger does not provide for the allocation and vesting of the right, title, and interest in any particular real estate or other property or for the allocation of any liability or obligation of any party to the merger, the unallocated property is owned in undivided interest by, or the liability or obligation is the joint and several liability and obligation of, each of the surviving and new organizations, pro rata to the total number of surviving and new organizations resulting from the merger. (c) If a surviving organization in a merger is not a domestic entity, the surviving organization is considered to have: (1) appointed the secretary of state in this state as the organization's agent for service of process in a proceeding to enforce any obligation of a domestic entity that is a party to the merger; and (2) agreed to promptly pay to the dissenting owners or members of each domestic entity that is a party to the merger who have the right of dissent and appraisal under this code the amount, if any, to which they are entitled under this code. (d) If the surviving organization in a merger is not a domestic entity, the organization shall register to transact business in this state if the entity is required to register for that purpose by another provision of this code. (TBCA 5.01.D, 5.06.A, C, 5.16.B (part); TLLCA 10.04; TNPCA 5.06, 5.07.B (part); TREITA 23.10(D), 23.60(A), (C); TRLPA 2.11(g) (part); TRPA 9.02(g) (part).) Sec. 10.009. SPECIAL PROVISIONS APPLYING TO PARTNERSHIP MERGERS. (a) A partner of a domestic partnership that is a party to a merger does not become liable as a result of the merger for the liability or obligation of another person that is a party to the merger unless the partner consents to becoming personally liable by action taken in connection with the specific plan of merger approved by the partner. (b) A partner of a domestic partnership that is a party to a merger who remains in or enters a partnership is treated as an incoming partner in the partnership when the merger takes effect for purposes of determining the partner's liability for a debt or obligation of the partnership or partnerships that are parties to the merger or to be created in the merger and in which the partner was not a partner. (c) If a partnership merges with an organization and, because of the merger, no longer exists, a former partner who becomes an owner or member of the surviving organization may, until the first anniversary of the effective date of the merger, bind the surviving organization to a transaction for which the owner or member no longer has authority to bind the organization if the transaction is one in which the actions by the owner or member as a partner would have bound the partnership before the effective date of the merger, and the other party to the transaction: (1) does not have actual or constructive notice of the merger; (2) had done business with the terminated partnership within one year preceding the effective date of the merger; and (3) reasonably believes that the partner who was previously an owner or member of the partnership that was merged into the surviving organization and is now an owner or member of the surviving organization has the authority to bind the surviving organization to the transaction at the time of the transaction. (d) If a partnership is formed under a plan of merger, the existence of the partnership as a partnership begins when the merger takes effect, and the persons to be partners become partners at that time. (e) A partner in a domestic partnership that is a party to the merger but does not survive shall be treated as a partner who withdrew from the nonsurviving domestic partnership as of the effective date of the merger. (f) The partnership agreement of each domestic partnership that is a party to the merger must contain provisions that authorize the merger provided for in the plan of merger adopted by the partnership. (g) Each domestic partnership that is a party to the merger must approve the plan of merger in the manner prescribed in its partnership agreement. (TRLPA 2.01(b) (part), 2.11(a) (part), (g) (part); TRPA 2.02(d), 9.01(c), 9.02(a) (part), (g) (part).) Sec. 10.010. SPECIAL PROVISIONS APPLYING TO NONPROFIT CORPORATION MERGERS. (a) A domestic nonprofit corporation may not merge into another entity if the domestic nonprofit corporation would, because of the merger, lose or impair its charitable status. (b) One or more domestic or foreign for-profit entities or non-code organizations may merge into one or more domestic nonprofit corporations that continue as the surviving entity or entities. (c) A domestic nonprofit corporation may not merge with a foreign for-profit entity if the domestic nonprofit corporation does not continue as the surviving entity. (d) One or more domestic nonprofit corporations and non-code organizations may merge into one or more foreign nonprofit entities that continue as the surviving entity or entities. (TNPCA 5.01, 5.02, 5.07.A.)
[Sections 10.011-10.050 reserved for expansion]
SUBCHAPTER B. EXCHANGES OF INTERESTS
Sec. 10.051. INTEREST EXCHANGES. (a) For the purpose of acquiring all of the outstanding ownership or membership interests of one or more classes or series of one or more domestic entities, one or more domestic entities or non-code organizations may adopt a plan of exchange. (b) To make an interest exchange under this section: (1) the governing authority of each domestic entity the ownership or membership interests of which are to be acquired in the interest exchange must act on a plan of exchange and, if otherwise required by this code, the owners or members of the domestic entity must approve the plan of exchange in the manner provided by this code; and (2) each acquiring domestic entity must take all action that may otherwise be required by this code and its governing documents to effect the exchange. (c) A domestic entity subject to dissenters' rights must provide the notice required by Section 10.355. (d) If a non-code organization is to acquire ownership or membership interests in the exchange, each non-code organization must take all action that is required under the laws of the organization's jurisdiction of formation and the organization's governing documents to effect the exchange. (e) If one or more non-code organizations as part of the plan of exchange are to issue ownership or membership interests, the issuance of the ownership or membership interests must be permitted by the laws under which the non-code organizations are incorporated or organized or not inconsistent with those laws. (f) A plan of exchange may not be effected if any owner or member of a domestic entity that is a party to the interest exchange will, as a result of the interest exchange, become personally liable, without the consent of the owner or member, for the liabilities or obligations of any other person or organization. (TBCA 5.02.A, D, 5.03.A (part); TLLCA 10.06.A; TREITA 23.20(A), (D); TRLPA 2.11(h) (part); TRPA 9.03(a) (part).) Sec. 10.052. PLAN OF EXCHANGE: REQUIRED PROVISIONS. (a) A plan of exchange must include: (1) the name of each domestic entity the ownership or membership interests of which are to be acquired; (2) the name of each acquiring organization; (3) if there is more than one acquiring organization, the ownership or membership interests to be acquired by each organization; (4) the terms and conditions of the exchange; and (5) the manner and basis of exchanging the ownership or membership interests to be acquired for: (A) ownership or membership interests, obligations, rights to purchase securities, or other securities of one or more of the acquiring organizations that is a party to the plan of exchange; (B) cash; (C) other property, including ownership or membership interests, obligations, rights to purchase securities, or other securities of any other person or entity; or (D) any combination of those items. (b) The manner and basis of exchanging an ownership or membership interest of an owner or member that is exchanged in a manner or basis different from any other owner or member having ownership or membership interests of the same class or series must be included in the plan of exchange in the same manner as provided by Subsection (a)(5). (TBCA 5.02.B; TREITA 23.20(B).) Sec. 10.053. PLAN OF EXCHANGE: PERMISSIVE PROVISIONS. A plan of exchange may include any other provisions not required by Section 10.052 relating to the interest exchange. (TBCA 5.02.C; TREITA 23.20(C).) Sec. 10.054. EFFECTIVENESS OF EXCHANGE. Except as otherwise provided by Subchapter B, Chapter 4, an interest exchange takes effect at the time provided in the plan of exchange or otherwise agreed to by the parties, except that an interest exchange that requires a filing under Subchapter D takes effect on the acceptance of the filing of the certificate of exchange by the secretary of state or county clerk, as appropriate. (TBCA 5.05; TLLCA 10.06.B (part); TREITA 23.50; TRLPA 2.11(h) (part); TRPA 9.03(b) (part).) Sec. 10.055. GENERAL EFFECT OF INTEREST EXCHANGE. When an interest exchange takes effect: (1) the ownership or membership interest of each acquired organization is exchanged as provided in the plan of exchange, and the former owners whose interests are exchanged under the plan of exchange are entitled only to the rights provided in the certificate of exchange or, if applicable, a right to receive the fair value for the ownership or membership interests provided under Subchapter H; and (2) the acquiring organization has all rights, title, and interests with respect to the ownership or membership interest to be acquired by it subject to the provisions of the certificate of exchange. (TBCA 5.06.B; TLLCA 10.06.B (part); TREITA 23.60(B); TRLPA 2.11(h) (part); TRPA 9.03(b) (part).) Sec. 10.056. SPECIAL PROVISIONS APPLYING TO PARTNERSHIPS. To effect an interest exchange: (1) the partnership agreement of each domestic partnership whose partnership interests are to be acquired pursuant to the plan of exchange must authorize the partnership interest exchange adopted by the partnership; (2) each domestic partnership whose partnership interests are to be acquired under the plan of exchange must approve the plan of exchange in the manner prescribed by its partnership agreement; and (3) each acquiring domestic partnership must take all actions that may be required by its partnership agreement in order to effect the exchange. (TRLPA 2.11(h) (part); TRPA 9.03(a).)
[Sections 10.057-10.100 reserved for expansion]
SUBCHAPTER C. CONVERSIONS
Sec. 10.101. CONVERSION OF DOMESTIC ENTITIES. (a) A domestic entity may convert into a different type of domestic entity or a non-code organization by adopting a plan of conversion. (b) To effect a conversion, the converting entity must act on and the owners or members of the domestic entity must approve a plan of conversion in the manner prescribed by this code for the approval of conversions by the domestic entity or, if not prescribed by this code, in the same manner as prescribed by this code for the adoption and approval of a plan of merger by the domestic entity when the domestic entity does not survive the merger. (c) A domestic entity subject to dissenters' rights must provide the notice required by Section 10.355. (d) A conversion may not take effect if the conversion is prohibited by or inconsistent with the laws of the converted entity's jurisdiction of formation, and the formation, incorporation, or organization of the converted entity under the plan of conversion must be effected in compliance with those laws pursuant to the plan of conversion. (e) At the time a conversion takes effect, each owner of the converting entity, other than those who receive payment of their ownership or membership interest under any applicable provisions of this code relating to dissent and appraisal, has, unless otherwise agreed to by that owner or member, an ownership or membership interest in, and is the owner or member of, the converted entity. (f) A domestic entity may not convert under this section if an owner or member of the domestic entity, as a result of the conversion, becomes personally liable, without the consent of the owner or member, for a liability or other obligation of the converted entity. (TBCA 5.17.A (part); TLLCA 10.08.A (part); TRLPA 2.15(a) (part); TRPA 9.01(a), (b), 9.05(a) (part).) Sec. 10.102. CONVERSION OF NON-CODE ORGANIZATIONS. (a) A non-code organization may convert into a domestic entity by adopting a plan of conversion as provided by this section. (b) To effect a conversion, the non-code organization must take any action that may be required for a conversion under the laws of the organization's jurisdiction of formation and the organization's governing documents. (c) The conversion must be permitted by the laws under which the non-code organization is incorporated or organized or by its governing documents, which may not be inconsistent with the laws of the jurisdiction in which the non-code organization is incorporated or organized. (TBCA 5.17.B; TLLCA 10.08.B; TRLPA 2.15(b); TRPA 9.05(b).) Sec. 10.103. PLAN OF CONVERSION: REQUIRED PROVISIONS. (a) A plan of conversion must include: (1) the name of the converting entity; (2) the name of the converted entity; (3) a statement that the converting entity is continuing its existence in the organizational form of the converted entity; (4) a statement of the type of entity that the converted entity is to be and the converted entity's jurisdiction of formation; (5) the manner and basis of converting the ownership or membership interests of the converting entity into ownership or membership interests of the converted entity; (6) any certificate of formation required to be filed under this code if the converted entity is a filing entity; and (7) the certificate of formation or similar organizational document of the converted entity if the converted entity is not a filing entity. (b) An item required by Subsection (a)(6) or (7) may be included in the plan of conversion by an attachment or exhibit to the plan. (TBCA 5.17.C; TLLCA 10.08.C; TRLPA 2.15(c); TRPA 9.05(c).) Sec. 10.104. PLAN OF CONVERSION: PERMISSIVE PROVISIONS. A plan of conversion may include other provisions relating to the conversion that are not inconsistent with law. (TBCA 5.17.D; TLLCA 10.08.D; TRLPA 2.15(d); TRPA 9.05(d).) Sec. 10.105. EFFECTIVENESS OF CONVERSION. Except as otherwise provided by Subchapter B, Chapter 4, a conversion takes effect at the time provided by the plan of conversion, except that a conversion that requires a filing under Subchapter D takes effect on the acceptance of the filing of the certificate of conversion by the filing officer. (TBCA 5.19; TLLCA 10.10; TRLPA 2.15(f); TRPA 9.05(g).) Sec. 10.106. GENERAL EFFECT OF CONVERSION. When a conversion takes effect: (1) the converting entity continues to exist without interruption in the organizational form of the converted entity rather than in the organizational form of the converting entity; (2) all rights, title, and interests to all property owned by the converting entity continues to be owned, subject to any existing liens or other encumbrances on the property, by the converted entity in the new organizational form without: (A) reversion or impairment; (B) further act or deed; or (C) any transfer or assignment having occurred; (3) all liabilities and obligations of the converting entity continue to be liabilities and obligations of the converted entity in the new organizational form without impairment or diminution because of the conversion; (4) the rights of creditors or other parties with respect to or against the previous owners or members of the converting entity in their capacities as owners or members in existence when the conversion takes effect continue to exist as to those liabilities and obligations and may be enforced by the creditors and obligees as if a conversion had not occurred; (5) a proceeding pending by or against the converting entity or by or against any of the converting entity's owners or members in their capacities as owners or members may be continued by or against the converted entity in the new organizational form and by or against the previous owners or members without a need for substituting a party; (6) the ownership or membership interests of the converting entity that are to be converted into ownership or membership interests of the converted entity as provided in the plan of conversion are converted as provided by the plan, and if the converting entity is a domestic entity, the former owners or members of the domestic entity are entitled only to the rights provided in the plan of conversion or a right of dissent and appraisal under this code; (7) if, after the conversion takes effect, an owner or member of the converted entity as an owner or member is liable for the liabilities or obligations of the converted entity, the owner or member is liable for the liabilities and obligations of the converting entity that existed before the conversion took effect only to the extent that the owner or member: (A) agrees in writing to be liable for the liabilities or obligations; (B) was liable, before the conversion took effect, for the liabilities or obligations; or (C) by becoming an owner or member of the converted entity, becomes liable under other applicable law for the existing liabilities and obligations of the converted entity; and (8) if the converted entity is a non-code organization, the converted entity is considered to have: (A) appointed the secretary of state in this state as its agent for service of process in a proceeding to enforce any obligation or the rights of dissenting owners or members of the converting domestic entity; and (B) agreed that the converted entity will promptly pay the dissenting owners or members of the converting domestic entity the amount, if any, to which they are entitled under this code. (TBCA 5.20.A (part); TLLCA 10.11; TRLPA 2.15(g); TRPA 9.05(h).) Sec. 10.107. SPECIAL PROVISIONS APPLYING TO PARTNERSHIP CONVERSIONS. (a) If a partnership is formed under a plan of conversion under this code, the existence of the partnership as a partnership begins when the conversion takes effect, and the owners or members designated to become the partners under the plan of conversion become the partners at that time. (b) The partnership agreement of a domestic partnership that is converting must contain provisions that authorize the conversion provided for in the plan of conversion adopted by the partnership. (c) A domestic partnership that is converting must approve the plan of conversion in the merger provided in its partnership agreement. (TRLPA 2.01(b) (part), 2.15(a) (part); TRPA 2.02(d), 9.05(a) (part).) Sec. 10.108. SPECIAL PROVISIONS APPLYING TO NONPROFIT CORPORATION CONVERSIONS. A domestic nonprofit corporation may not convert into a for-profit entity. (New.)
[Sections 10.109-10.150 reserved for expansion]
SUBCHAPTER D. CERTIFICATE OF MERGER, EXCHANGE,
OR CONVERSION
Sec. 10.151. CERTIFICATE OF MERGER AND EXCHANGE. (a) After approval of a plan of merger or a plan of exchange as provided by this code, a certificate of merger, which may also include an exchange, or a certificate of exchange, as applicable, must be filed for a merger or interest exchange to become effective if: (1) for a merger: (A) any domestic entity that is a party to the merger is a filing entity; or (B) any domestic entity to be created under the plan of merger is a filing entity; or (2) for an exchange, an ownership or membership interest in any filing entity is to be acquired in the interest exchange. (b) If a certificate of merger or exchange is required to be filed in connection with an interest exchange or a merger, other than a merger under Section 10.006, the certificate must be signed on behalf of each domestic entity and non-code organization that is a party to the merger or exchange by an officer or other authorized representative and must include: (1) the plan of merger or exchange or a statement certifying: (A) the name of each domestic entity or non-code organization that is a party to the merger or exchange; (B) the name of each domestic entity or non-code organization that is to be created by the plan of merger or exchange; (C) the name of the jurisdiction in which each domestic entity or non-code organization named under Paragraph (A) or (B) is incorporated or organized; (D) for a merger, the amendments or changes to the certificate of formation of each filing entity that is a party to the merger, or if no amendments are desired to be effected by the merger, a statement to that effect; (E) that the certificate of formation of each new filing entity to be created under the plan of merger or exchange is being filed with the certificate of merger or exchange; (F) that a signed plan of merger or exchange is on file at the principal place of business of each surviving, acquiring, or new domestic entity or non-code organization, and the address of each principal place of business; and (G) that a copy of the plan of merger or exchange will be on written request furnished without cost by each surviving, acquiring, or new domestic entity or non-code organization to any owner or member of any domestic entity that is a party to or created by the plan of merger or exchange and, for a merger with multiple surviving domestic entities or non-code organizations, to any creditor or obligee of the parties to the merger at the time of the merger if a liability or obligation is then outstanding; (2) if approval of the owners or members of any domestic entity that was a party to the plan of merger or exchange is not required by this code, a statement to that effect; and (3) a statement that the plan of merger or exchange has been approved as required by the laws of the jurisdiction of formation of each organization that is a party to the merger or exchange and by the governing documents of those organizations. (c) A certificate of merger may also constitute a certificate of exchange if it contains the information required for a certificate of exchange. (TBCA 5.04.A; TLLCA 10.03.A (part), B, 10.06.A, B (part); TNPCA 5.04.A; TREITA 23.40(A); TRLPA 2.11(d) (part), (e), (h) (part); TRPA 9.02(d), 9.03(b) (part).) Sec. 10.152. CERTIFICATE OF MERGER: SHORT FORM MERGER. (a) The certificate of merger for a merger under Section 10.006 is required to be signed only by an officer or other authorized representative of the parent organization described by that section. (b) Except as provided by Subsection (c), the certificate of merger must include: (1) the name of the parent organization, the name of each subsidiary organization that is a party to the merger, and the jurisdiction of formation of each named organization; (2) the number of outstanding ownership interests of each class or series of each subsidiary organization and the number and percentage of ownership interests of each class or series owned by the parent organization; (3) a copy of the resolution of merger adopted by the governing authority of the parent organization authorizing the merger and the date of the adoption of the resolution; (4) a statement that the resolution has been approved as required by the laws of the jurisdiction of formation of the parent organization and by its governing documents; and (5) if any surviving organization is not a domestic entity, the address, including street number, if any, of its registered or principal office in the organization's jurisdiction of formation. (c) If a plan of merger is required to be adopted by action of the parent organization under Section 10.006(c), the certificate of merger must include the information required by Section 10.151(b). (TBCA 5.16.B; TLLCA 10.05.B.) Sec. 10.153. FILING OF CERTIFICATE OF MERGER OR EXCHANGE. (a) If a certificate of merger or exchange is required to be filed, the certificate of merger or exchange must be filed in accordance with Chapter 4. The certificate of formation of each filing entity that is to be formed under a plan of merger must also be filed with the certificate of merger in accordance with Chapter 4. Except as provided by this section, the certificate must be filed with the secretary of state. (b) If a domestic real estate investment trust is a party to the merger or if an ownership interest in a domestic real estate investment trust is to be acquired in the interest exchange, the certificate of merger or exchange must be filed in accordance with Chapter 4 with the county clerk of the county in which the domestic real estate investment trust's principal place of business in this state is located. (c) If a domestic real estate investment trust is to be created under the plan of merger, the certificate of formation of the domestic real estate investment trust must also be filed with the certificate of merger in accordance with Chapter 4 with the county clerk of the county in which the domestic real estate investment trust's principal place of business in this state is located. (TBCA 5.04.B, 5.16.C; TLLCA 10.03.B; TNPCA 5.04.B; TREITA 23.40(B); TRLPA 2.11(e); TRPA 9.02(e).) Sec. 10.154. CERTIFICATE OF CONVERSION. (a) After approval of a plan of conversion as provided by this code, a certificate of conversion must be filed for the conversion to become effective if: (1) any domestic entity that is a party to the conversion is a filing entity; or (2) any domestic entity to be created under the plan of conversion is a filing entity. (b) If a certificate of conversion is required to be filed in connection with a conversion, the certificate must be signed on behalf of the converting entity and must include: (1) the plan of conversion or a statement certifying the following: (A) the name and jurisdiction of organization of the converting entity; (B) the organizational form of the converting entity; (C) that a signed plan of conversion is on file at the principal place of business of the converting entity, and the address of the principal place of business; (D) that a signed plan of conversion will be on file after the conversion at the principal place of business of the converted entity, and the address of the principal place of business; and (E) that a copy of the plan of conversion will be on written request furnished without cost by the converting entity before the conversion or by the converted entity after the conversion to any owner or member of the converting entity or the converted entity; and (2) a statement that the plan of conversion has been approved as required by the laws of the jurisdiction of formation and the governing documents of the converting entity. (TBCA 5.18.A; TLLCA 10.09.A; TRLPA 2.15(e); TRPA 9.05(e) (part).) Sec. 10.155. FILING OF CERTIFICATE OF CONVERSION. (a) If a certificate of conversion is required to be filed, the certificate of conversion must be filed in accordance with Chapter 4. If the converted entity is a filing entity, the certificate of formation of the filing entity must also be filed with the certificate of conversion in accordance with Chapter 4. Except as provided by this section, the certificate must be filed with the secretary of state. (b) If the converting entity is a domestic real estate investment trust, the certificate of conversion must be filed in accordance with Chapter 4 with the county clerk of the county in which the converting entity's principal place of business in this state is located. (c) If the converted entity is a domestic real estate investment trust, the certificate of formation of the converted entity must also be filed with the certificate of conversion in accordance with Chapter 4 with the county clerk of the county in which the converted entity's principal place of business in this state is located. (TBCA 5.18.B; TLLCA 10.09.B; TRLPA 2.15(f); TRPA 9.05(e) (part).) Sec. 10.156. ACCEPTANCE OF CERTIFICATE FOR FILING. The filing officer may not accept a certificate of merger, exchange, or conversion for filing if: (1) the filing officer finds that the certificate of merger, exchange, or conversion does not conform to law; or (2) the required franchise taxes have not been paid or the certificate of merger, exchange, or conversion does not provide that one or more of the surviving, new, or acquiring organizations or the converted entity is liable for the payment of the required franchise taxes. (TBCA 5.04.C (part), 5.18.C (part); TLLCA 10.03.B (part), 10.09.C (part); TNPCA 5.04.B (part); TRLPA 2.11(e) (part); TRPA 9.02(e) (part), 9.05(f) (part).)
[Sections 10.157-10.200 reserved for expansion]
SUBCHAPTER E. ABANDONMENT OF MERGER, EXCHANGE, OR CONVERSION
Sec. 10.201. ABANDONMENT OF PLAN OF MERGER, EXCHANGE, OR CONVERSION. After a merger, interest exchange, or conversion is approved as provided by this code, and at any time before the merger, interest exchange, or conversion takes effect, the plan of merger, interest exchange, or conversion may be abandoned, subject to any contractual rights, by any of the domestic entities that are a party to the merger, interest exchange, or conversion, without action by the owners or members, under the procedures provided by the plan of merger, exchange, or conversion or, if no abandonment procedures are provided, in the manner determined by the governing authority. (TBCA 5.03.L (part), 5.17.E (part); TNPCA 5.03.B; TREITA 23.30(I) (part).) Sec. 10.202. ABANDONMENT AFTER FILING. (a) If a certificate of merger, exchange, or conversion has been filed, the merger, interest exchange, or conversion may be abandoned before its effectiveness in accordance with Sections 4.057 and 10.201. (b) A filing of a certificate of abandonment under Section 4.057 is not required for the abandonment of a merger, interest exchange, or conversion if no filing is required under Subchapter D to make the merger, interest exchange, or conversion effective. (TBCA 5.03.L (part), 5.17.E (part); TLLCA 9.03.F (part); TREITA 23.30(I) (part); TRLPA 2.12.F (part).)
[Sections 10.203-10.250 reserved for expansion]
SUBCHAPTER F. PROPERTY TRANSFERS AND DISPOSITIONS
Sec. 10.251. GENERAL POWER OF DOMESTIC ENTITY TO SELL, LEASE, OR CONVEY PROPERTY. (a) Subject to any approval required by this code or the governing documents of the domestic entity, a domestic entity may transfer and convey by sale, lease, assignment, or another method an interest in property of the entity, including real property. The transfer and conveyance may: (1) be made with or without the goodwill of the entity; (2) be made on any terms and conditions and for any consideration, which may consist wholly or partly of money or other property, including an ownership interest in a domestic entity or non-code organization; and (3) be evidenced by a deed, assignment, or other instrument of transfer or conveyance, with or without the seal of the entity. (b) Subject to any approval required by this code or the governing documents of the domestic entity, a domestic entity may grant a pledge, mortgage, deed of trust, or trust indenture with respect to an interest in property of the entity, including real property, with or without the seal of the entity. (TBCA 5.08 (part), 5.09.A; TNPCA 5.08 (part); TREITA 24.10(A), (C) (part).) Sec. 10.252. NO APPROVAL REQUIRED FOR CERTAIN DISPOSITIONS OF PROPERTY. Except as otherwise provided by this code, the governing documents of the domestic entity, or specific limitations established by the governing authority, a sale, lease, assignment, conveyance, pledge, mortgage, deed of trust, trust indenture, or other transfer of an interest in real property or other property made by a domestic entity does not require the approval of the members or owners of the entity. (TBCA 5.08 (part), 5.09.A (part); TNPCA 5.08 (part), 5.09 (part); TREITA 24.10(A).) Sec. 10.253. RECORDING INSTRUMENT CONVEYING REAL PROPERTY OF DOMESTIC ENTITY. (a) A deed or other instrument executed by a domestic entity that conveys an interest in real property may be recorded in the same manner and with the same effect as other similar instruments if the instrument is signed and acknowledged by: (1) an officer, authorized attorney-in-fact, or other authorized person of the entity; or (2) in the case of a partnership or limited liability company, a governing person of the entity. (b) A deed or other instrument executed by a domestic entity that conveys an interest in real property and that is recorded and signed by an officer, authorized attorney-in-fact, or other authorized person of the entity constitutes prima facie evidence that the sale or conveyance that is the subject of the instrument was authorized under this code and the governing documents of the entity. (TBCA 5.08; TLLCA 2.11; TNPCA 5.08; TREITA 24.10(C).) Sec. 10.254. DISPOSITION OF PROPERTY NOT A MERGER OR CONVERSION; LIABILITY. (a) A disposition of all or part of the property of a domestic entity, regardless of whether the disposition requires the approval of the entity's owners or members, is not a merger or conversion for any purpose. (b) Except as otherwise expressly provided by another law, a person acquiring property described by this section may not be held responsible or liable for a liability or obligation of the transferring domestic entity that is not expressly assumed by the person. (TBCA 5.10.B; TREITA 24.20(B).)
[Sections 10.255-10.300 reserved for expansion]
SUBCHAPTER G. BANKRUPTCY REORGANIZATION
Sec. 10.301. REORGANIZATION UNDER BANKRUPTCY AND SIMILAR LAWS. (a) A trustee appointed for a domestic entity that is being reorganized under a federal statute, the designated officers of a domestic entity being reorganized under a federal statute, or any other individual designated by a court having jurisdiction of a domestic entity being reorganized under a federal statute to act on behalf of the domestic entity may, without action by or notice to the domestic entity's governing authority, owners, or members, in order to carry out a plan of reorganization ordered by a court under the federal statute: (1) amend or restate the domestic entity's certificate of formation if the certificate of formation after amendment or restatement contains only provisions required or permitted to be contained in the certificate of formation; (2) merge or exchange an interest with one or more domestic entities or non-code organizations under a plan of merger or exchange having any provision required or permitted by Sections 10.002, 10.003, 10.004, 10.005, 10.052, and 10.053; (3) change the location of the domestic entity's registered office, change its registered agent, and remove or appoint any agent to receive service of process; (4) alter, amend, or repeal the domestic entity's governing documents other than filing instruments; (5) constitute or reconstitute and classify or reclassify the domestic entity's governing authority and name, constitute, or appoint managerial officials in place of or in addition to all or some of the managerial officials; (6) sell, lease, exchange, or otherwise dispose of all, or substantially all, of the domestic entity's property and assets; (7) authorize and fix the terms, manner, and conditions of the issuance of bonds, debentures, or other obligations, regardless of whether the obligation is convertible into ownership interests of any class or bearing warrants or other evidences of optional rights to purchase or subscribe for any ownership interests of any class; (8) wind up and terminate the entity's existence; or (9) effect a conversion. (b) An action taken under Subsection (a)(4) or (5) takes effect on entry of the order approving the plan of reorganization or on another effective date as may be specified, without further action of the domestic entity, as and to the extent provided by the plan of reorganization or the order approving the plan of reorganization. (TBCA 4.14.A; TLLCA 8.12.A; TREITA 26.10(A), (B); TRLPA 2.06(a).) Sec. 10.302. SIGNING OF DOCUMENTS. A trustee appointed for a domestic entity being reorganized under a federal statute, the designated officers of a domestic entity being reorganized under a federal statute, or any other individual designated by a court having jurisdiction of a domestic entity being reorganized under a federal statute may sign on behalf of a domestic entity that is being reorganized: (1) a certificate of amendment or restated certificate of formation containing: (A) the name of the domestic entity; (B) each amendment or the restatement approved by the court; (C) the date of the court's order approving the certificate of amendment or the restatement; (D) the name of the court having jurisdiction, file name, and case number of the reorganization case in which the order was entered; and (E) a statement that the court had jurisdiction of the case under a federal statute; (2) a certificate of merger or exchange containing: (A) the name of the domestic entity; (B) the part of the plan of reorganization that contains the plan of merger or exchange approved by the court, which must include the information required by Section 10.151(b) or 10.152, as applicable, but which is not required to include the resolution of the governing authority referred to in Section 10.152; (C) the date of the court's order approving the plan of merger or consolidation; (D) the name of the court having jurisdiction, file name, and case number of the reorganization case in which the order or decree was entered; and (E) a statement that the court had jurisdiction of the case under a federal statute; (3) a certificate of termination containing: (A) the name of the domestic entity; (B) the information required by Sections 11.101(c)(1)-(4); (C) the date of the court's order approving the certificate of termination; (D) a statement that the obligations of the domestic entity, including debts and liabilities, have been paid or discharged as provided by the plan of reorganization and the remaining property and assets of the domestic entity have been distributed as provided by the plan of reorganization; (E) the name of the court having jurisdiction, file name, and case number of the reorganization case in which the order or decree was entered; and (F) a statement that the court had jurisdiction of the case under a federal statute; (4) a statement of change of registered office or registered agent, or both, containing: (A) the name of the domestic entity; (B) the information required by Section 5.202(b), as applicable, but not the information included in the statement referred to in Section 5.202(b)(6); (C) the date of the court's order approving the statement of change of registered office or registered agent, or both; (D) the name of the court having jurisdiction, file name, and case number of the reorganization case in which the order or decree was entered; and (E) a statement that the court had jurisdiction of the case under a federal statute; or (5) a certificate of conversion containing: (A) the name of the domestic entity; (B) the part of the plan of reorganization that contains the plan of conversion approved by the court, which must include the information required by Section 10.103; (C) the date of the court's order or decree approving the plan of conversion; (D) the name of the court having jurisdiction, file name, and case number of the reorganization case in which the order was entered; and (E) a statement that the court had jurisdiction of the case under a federal statute. (TBCA 4.14.B; TREITA 26.10(C), (D); TRLPA 2.06(b).) Sec. 10.303. REORGANIZATION WITH OTHER ENTITIES. If a domestic entity or non-code organization that is not being reorganized under a federal statute merges or exchanges an interest with a domestic entity that is being reorganized under a plan of reorganization under a federal statute: (1) Subchapters A, B, D, E, and H apply to the domestic entity or non-code organization that is not being reorganized to the same extent those subchapters would apply if the domestic entity or non-code organization were merging or engaging in an interest exchange with a domestic entity that is not being reorganized, except as otherwise provided by the plan of reorganization ordered by a court under the federal statute; (2) Subchapter H applies to a subsidiary organization that is not being reorganized to the same extent that subchapter would apply if the subsidiary organization were merging with a parent organization that is not being reorganized; (3) on the receipt of all required authorization for all action required by this code for each domestic entity that is a party to the plan of merger or exchange that is not being reorganized and all action by each domestic entity or non-code organization that is a party to the plan of merger or exchange required by the laws of the entity's or organization's jurisdiction of formation and governing documents, a certificate of merger or exchange shall be signed by each domestic entity or non-code organization that is a party to the merger or exchange other than the domestic entity that is being reorganized as provided by Section 10.151 and on behalf of the domestic entity that is being reorganized by the persons specified in Section 10.302; (4) the certificate of merger or exchange must contain the information required by Section 10.302(2); (5) the certificate of merger or exchange must be filed in the manner provided by Section 10.153; and (6) on the acceptance for filing of the certificate of merger or exchange in accordance with Subchapter D, the merger or interest exchange, when effective, has the same effect as if it had been adopted by unanimous action of the governing authority and owners or members of the domestic entity being reorganized, and the effectiveness of the merger or interest exchange is determined as provided by Section 10.007 or 10.054. (TBCA 4.14.C; TREITA 26.10(D); TRLPA 2.06(c), (d).) Sec. 10.304. RIGHT OF DISSENT AND APPRAISAL EXCLUDED. An owner or member of a domestic entity subject to dissenters' rights being reorganized under a federal statute does not have a right to dissent and appraisal under this code except as provided by the plan of reorganization. (TBCA 4.14.D; TREITA 26.10(E).) Sec. 10.305. AFTER FINAL DECREE. This subchapter does not apply after the entry of a final decree in a reorganization case under a federal statute even though the court that renders the decree may retain jurisdiction of the case for limited purposes unrelated to consummation of the plan of reorganization. (TBCA 4.14.E; TREITA 26.10(F); TRLPA 2.06(e).) Sec. 10.306. CHAPTER CUMULATIVE OF OTHER CHANGES. This chapter does not preclude other changes in a domestic entity or its ownership or membership interests or securities by a plan of reorganization ordered by a court under a federal statute. (TBCA 4.14.F; TREITA 26.10(G); TRLPA 2.06(f).)
[Sections 10.307-10.350 reserved for expansion]
SUBCHAPTER H. RIGHTS OF DISSENTING OWNERS
Sec. 10.351. APPLICABILITY OF SUBCHAPTER. (a) This subchapter does not apply to a fundamental business transaction of a domestic entity if, immediately before the effective date of the fundamental business transaction, all of the ownership interests of the entity otherwise entitled to rights to dissent and appraisal under this code are held by one owner or only by the owners who approved the fundamental business transaction. (b) This subchapter applies only to a "domestic entity subject to dissenters' rights," as defined in Section 1.002. That term includes a domestic for-profit corporation, professional corporation, professional association, and real estate investment trust. Except as provided in Subsection (c), that term does not include a partnership or limited liability company. (c) The governing documents of a partnership or a limited liability company may provide that its owners are entitled to the rights of dissent and appraisal provided by this subchapter. (New.) Sec. 10.352. DEFINITIONS. In this subchapter: (1) "Dissenting owner" means an owner of an ownership interest in a domestic entity subject to dissenters' rights who: (A) provides notice under Section 10.356; and (B) complies with the requirements for perfecting that owner's right to dissent under this subchapter. (2) "Responsible organization" means: (A) the organization responsible for: (i) the provision of notices under this subchapter; and (ii) the primary obligation of paying the fair value for an ownership interest held by a dissenting owner; (B) with respect to a merger or conversion: (i) for matters occurring before the merger or conversion, the organization that is merging or converting; and (ii) for matters occurring after the merger or conversion, the surviving or new organization that is primarily obligated for the payment of the fair value of the dissenting owner's ownership interest in the merger or conversion; (C) with respect to an interest exchange, the organization the ownership interests of which are being acquired in the interest exchange; and (D) with respect to the sale of all or substantially all of the assets of an organization, the organization the assets of which are to be transferred by sale or in another manner. (New.) Sec. 10.353. FORM AND VALIDITY OF NOTICE. (a) Notice required under this subchapter: (1) must be in writing; and (2) may be mailed, hand-delivered, or delivered by courier or electronic transmission. (b) Failure to provide notice as required by this subchapter does not invalidate any action taken. (New.) Sec. 10.354. RIGHTS OF DISSENT AND APPRAISAL. (a) Subject to Subsection (b), an owner of an ownership interest in a domestic entity subject to dissenters' rights is entitled to: (1) dissent from: (A) a plan of merger to which the domestic entity is a party if owner approval is required by this code and the owner owns in the domestic entity an ownership interest that was entitled to vote on the plan of merger; (B) a sale of all or substantially all of the assets of the domestic entity if owner approval is required by this code and the owner owns in the domestic entity an ownership interest that was entitled to vote on the sale; (C) a plan of exchange in which the ownership interest of the owner is to be acquired; (D) a plan of conversion in which the domestic entity is the converting entity if owner approval is required by this code and the owner owns in the domestic entity an ownership interest that was entitled to vote on the plan of conversion; or (E) a merger effected under Section 10.006 in which: (i) the owner is entitled to vote on the merger; or (ii) the ownership interest of the owner is converted or exchanged; and (2) subject to compliance with the procedures set forth in this subchapter, obtain the fair value of that ownership interest through an appraisal. (b) Notwithstanding Subsection (a), subject to Subsection (c), an owner may not dissent from a plan of merger or conversion in which there is a single surviving or new domestic entity or non-code organization, or from a plan of exchange, if: (1) the ownership interest held by the owner is part of a class or series of ownership interests that are, on the record date set for purposes of determining which owners are entitled to vote on the plan of merger, conversion, or exchange, as appropriate: (A) listed on a national securities exchange or a similar system; (B) listed on the Nasdaq Stock Market or a successor quotation system; (C) designated as a national market security on an interdealer quotation system by the National Association of Securities Dealers, Inc., or a successor system; or (D) held of record by at least 2,000 owners; (2) the owner is not required by the terms of the plan of merger, conversion, or exchange, as appropriate, to accept for the owner's ownership interest any consideration that is different from the consideration to be provided to any other holder of an ownership interest of the same class or series as the ownership interest held by the owner, other than cash instead of fractional shares or interests the owner would otherwise be entitled to receive; and (3) the owner is not required by the terms of the plan of merger, conversion, or exchange, as appropriate, to accept for the owner's ownership interest any consideration other than: (A) ownership interests of a domestic entity or non-code organization of the same general organizational type that, immediately after the effective date of the merger, conversion, or exchange, as appropriate, will be part of a class or series of ownership interests that are: (i) listed on a national securities exchange or authorized for listing on the exchange on official notice of issuance; (ii) approved for quotation as a national market security on an interdealer quotation system by the National Association of Securities Dealers, Inc., or a successor entity; or (iii) held of record by at least 2,000 owners; (B) cash instead of fractional ownership interests the owner would otherwise be entitled to receive; or (C) any combination of the ownership interests and cash described by Paragraphs (A) and (B). (c) Subsection (b) shall not apply to a domestic entity that is a subsidiary with respect to a merger under Section 10.006. (TBCA 5.11, 5.16.E (part), 5.20.A (part); TREITA 25.10.) Sec. 10.355. NOTICE OF RIGHT OF DISSENT AND APPRAISAL. (a) A domestic entity subject to dissenters' rights that takes or proposes to take an action regarding which an owner has a right to dissent and obtain an appraisal under Section 10.354 shall notify each affected owner of the owner's rights under that section if: (1) the action or proposed action is submitted to a vote of the owners at a meeting; or (2) approval of the action or proposed action is obtained by written consent of the owners instead of being submitted to a vote of the owners. (b) If a parent organization effects a merger under Section 10.006 and a subsidiary organization that is a party to the merger is a domestic entity subject to dissenters' rights, the responsible organization shall notify the owners of that subsidiary organization who have a right to dissent to the merger under Section 10.354 of their rights under this subchapter not later than the 10th day after the effective date of the merger. The notice must also include a copy of the certificate of merger and a statement that the merger has become effective. (c) A notice required to be provided under Subsection (a) or (b) must: (1) be accompanied by a copy of this subchapter; and (2) advise the owner of the location of the responsible organization's principal executive offices to which a notice required under Section 10.356(b)(2) may be provided. (d) In addition to the requirements prescribed by Subsection (c), a notice required to be provided under Subsection (a)(1) must accompany the notice of the meeting to consider the action, and a notice required under Subsection (a)(2) must be provided to: (1) each owner who consents in writing to the action before the owner delivers the written consent; and (2) each owner who is entitled to vote on the action and does not consent in writing to the action before the 11th day after the date the action takes effect. (e) Not later than the 10th day after the date an action described by Subsection (a)(1) takes effect, the responsible organization shall give notice that the action has been effected to each owner who voted against the action and sent notice under Section 10.356(b)(2). (TBCA 5.03.D, 5.12.A (part), 5.16.E (part); TREITA 23.30(D), 25.20(A) (part).) Sec. 10.356. PROCEDURE FOR DISSENT BY OWNERS AS TO ACTIONS; PERFECTION OF RIGHT OF DISSENT AND APPRAISAL. (a) An owner of an ownership interest of a domestic entity subject to dissenters' rights who has the right to dissent and appraisal from any of the actions referred to in Section 10.354 may exercise that right to dissent and appraisal only by complying with the procedures specified in this subchapter. An owner's right of dissent and appraisal under Section 10.354 may be exercised by an owner only with respect to an ownership interest that is not voted in favor of the action. (b) To perfect the owner's rights of dissent and appraisal under Section 10.354, an owner: (1) with respect to the ownership interest for which the rights of dissent and appraisal are sought: (A) must vote against the action if the owner is entitled to vote on the action and the action is approved at a meeting of the owners; and (B) may not consent to the action if the action is approved by written consent; and (2) must give to the responsible organization a notice dissenting to the action that: (A) is addressed to the president and secretary of the responsible organization; (B) demands payment of the fair value of the ownership interests for which the rights of dissent and appraisal are sought; (C) provides to the responsible organization an address to which a notice relating to the dissent and appraisal procedures under this subchapter may be sent; (D) states the number and class of the ownership interests of the domestic entity owned by the owner and the fair value of the ownership interests as estimated by the owner; and (E) is delivered to the responsible organization at its principal executive offices at the following time: (i) before the action is considered for approval, if the action is to be submitted to a vote of the owners at a meeting; (ii) not later than the 20th day after the date the responsible organization sends to the owner a notice that the action was approved by the requisite vote of the owners, if the action is to be undertaken on the written consent of the owners; or (iii) not later than the 20th day after the date the responsible organization sends to the owner a notice that the merger was effected, if the action is a merger effected under Section 10.006. (c) An owner who does not make a demand within the period required by Subsection (b)(2)(E) is bound by the action and is not entitled to exercise the rights of dissent and appraisal under Section 10.354. (d) Not later than the 20th day after the date an owner makes a demand under this section, the owner must submit to the responsible organization any certificates representing the ownership interest to which the demand relates for purposes of making a notation on the certificates that a demand for the payment of the fair value of an ownership interest has been made under this section. An owner's failure to submit the certificates within the required period has the effect of terminating, at the option of the responsible organization, the owner's rights to dissent and appraisal under Section 10.354 unless a court, for good cause shown, directs otherwise. (e) If a domestic entity and responsible organization satisfy the requirements of this subchapter relating to the rights of owners of ownership interests in the entity to dissent to an action and seek appraisal of those ownership interests, an owner of an ownership interest who fails to perfect that owner's right of dissent in accordance with this subchapter may not bring suit to recover the value of the ownership interest or money damages relating to the action. (TBCA 5.12.A (part), G (part), 5.13.B (part), 5.16.E (part); TREITA 25.20(A) (part), (G) (part), 25.30(B) (part).) Sec. 10.357. WITHDRAWAL OF DEMAND FOR FAIR VALUE OF OWNERSHIP INTEREST. (a) An owner may withdraw a demand for the payment of the fair value of an ownership interest made under Section 10.356 before: (1) payment for the ownership interest has been made under Sections 10.358 and 10.361; or (2) a petition has been filed under Section 10.361. (b) Unless the responsible organization consents to the withdrawal of the demand, an owner may not withdraw a demand for payment under Subsection (a) after either of the events specified in Subsections (a)(1) and (2). (TBCA 5.13.C (part); TREITA 25.30(C) (part).) Sec. 10.358. RESPONSE BY ORGANIZATION TO NOTICE OF DISSENT AND DEMAND FOR FAIR VALUE BY DISSENTING OWNER. (a) Not later than the 20th day after the date a responsible organization receives a demand for payment made by a dissenting owner in accordance with Section 10.356, the responsible organization shall respond to the dissenting owner in writing by: (1) accepting the amount claimed in the demand as the fair value of the ownership interests specified in the notice; or (2) rejecting the demand and including in the response the requirements prescribed by Subsection (c). (b) If the responsible organization accepts the amount claimed in the demand, the responsible organization shall pay the amount not later than the 90th day after the date the action that is the subject of the demand was effected if the owner delivers to the responsible organization: (1) endorsed certificates representing the ownership interests if the ownership interests are certificated; or (2) signed assignments of the ownership interests if the ownership interests are uncertificated. (c) If the responsible organization rejects the amount claimed in the demand, the responsible organization shall provide to the owner: (1) an estimate by the responsible organization of the fair value of the ownership interests; and (2) an offer to pay the amount of the estimate provided under Subdivision (1). (d) An offer made under Subsection (c)(2) must remain open for a period of at least 60 days from the date the offer is first delivered to the dissenting owner. (e) If a dissenting owner accepts an offer made by a responsible organization under Subsection (c)(2) or if a dissenting owner and a responsible organization reach an agreement on the fair value of the ownership interests, the responsible organization shall pay the agreed amount not later than the 60th day after the date the offer is accepted or the agreement is reached, as appropriate, if the dissenting owner delivers to the responsible organization: (1) endorsed certificates representing the ownership interests if the ownership interests are certificated; or (2) signed assignments of the ownership interests if the ownership interests are uncertificated. (TBCA 5.12.A (part), 5.16.E (part); TREITA 25.20(A) (part).) Sec. 10.359. RECORD OF DEMAND FOR FAIR VALUE OF OWNERSHIP INTEREST. (a) A responsible organization shall note in the organization's ownership interest records maintained under Section 3.151 the receipt of a demand for payment from any dissenting owner made under Section 10.356. (b) If an ownership interest that is the subject of a demand for payment made under Section 10.356 is transferred, a new certificate representing that ownership interest must contain: (1) a reference to the demand; and (2) the name of the original dissenting owner of the ownership interest. (TBCA 5.13.B (part); TREITA 25.30(B) (part).) Sec. 10.360. RIGHTS OF TRANSFEREE OF CERTAIN OWNERSHIP INTEREST. A transferee of an ownership interest that is the subject of a demand for payment made under Section 10.356 does not acquire additional rights with respect to the responsible organization following the transfer. The transferee has only the rights the original dissenting owner had with respect to the responsible organization after making the demand. (TBCA 5.13.B (part); TREITA 25.30(B) (part).) Sec. 10.361. PROCEEDING TO DETERMINE FAIR VALUE OF OWNERSHIP INTEREST AND OWNERS ENTITLED TO PAYMENT; APPOINTMENT OF APPRAISERS. (a) If a responsible organization rejects the amount demanded by a dissenting owner under Section 10.358 and the dissenting owner and responsible organization are unable to reach an agreement relating to the fair value of the ownership interests within the period prescribed by Section 10.358(d), the dissenting owner or responsible organization may file a petition requesting a finding and determination of the fair value of the owner's ownership interests in a court in: (1) the county in which the organization's principal office is located in this state; or (2) the county in which the organization's registered office is located in this state, if the organization does not have a business office in this state. (b) A petition described by Subsection (a) must be filed not later than the 60th day after the expiration of the period required by Section 10.358(d). (c) On the filing of a petition by an owner under Subsection (a), service of a copy of the petition shall be made to the responsible organization. Not later than the 10th day after the date a responsible organization receives service under this subsection, the responsible organization shall file with the clerk of the court in which the petition was filed a list containing the names and addresses of each owner of the organization who has demanded payment for ownership interests under Section 10.356 and with whom agreement as to the value of the ownership interests has not been reached with the responsible organization. If the responsible organization files a petition under Subsection (a), the petition must be accompanied by this list. (d) The clerk of the court in which a petition is filed under this section shall provide by registered mail notice of the time and place set for the hearing to: (1) the responsible organization; and (2) each owner named on the list described by Subsection (c) at the address shown for the owner on the list. (e) The court shall: (1) determine which owners have: (A) perfected their rights by complying with this subchapter; and (B) become subsequently entitled to receive payment for the fair value of their ownership interests; and (2) appoint one or more qualified appraisers to determine the fair value of the ownership interests of the owners described by Subdivision (1). (f) The court shall approve the form of a notice required to be provided under this section. The judgment of the court is final and binding on the responsible organization, any other organization obligated to make payment under this subchapter for an ownership interest, and each owner who is notified as required by this section. (TBCA 5.12.B, C (part), 5.16.E (part); TREITA 25.20(B), (C) (part).) Sec. 10.362. COMPUTATION AND DETERMINATION OF FAIR VALUE OF OWNERSHIP INTEREST. (a) For purposes of this subchapter, the fair value of an ownership interest of a domestic entity subject to dissenters' rights is the value of the ownership interest on the date preceding the date of the action that is the subject of the appraisal. Any appreciation or depreciation in the value of the ownership interest occurring in anticipation of the proposed action or as a result of the action must be specifically excluded from the computation of the fair value of the ownership interest. (b) In computing the fair value of an ownership interest under this subchapter, consideration must be given to the value of the organization as a going concern without including in the computation of value any: (1) payment for a control premium or minority discount other than a discount attributable to the type of ownership interests held by the dissenting owner; and (2) limitation placed on the rights and preferences of those ownership interests. (c) The determination of the fair value of an ownership interest made for purposes of this subchapter may not be used for purposes of making a determination of the fair value of that ownership interest for another purpose or of the fair value of another ownership interest, including for purposes of determining any minority or liquidity discount that might apply to a sale of an ownership interest. (TBCA 5.12.A(1) (part).) Sec. 10.363. POWERS AND DUTIES OF APPRAISER; APPRAISAL PROCEDURES. (a) An appraiser appointed under Section 10.361 has the power and authority that: (1) is granted by the court in the order appointing the appraiser; and (2) may be conferred by a court to a master in chancery as provided by Rule 171, Texas Rules of Civil Procedure. (b) The appraiser shall: (1) determine the fair value of an ownership interest of an owner adjudged by the court to be entitled to payment for the ownership interest; and (2) file with the court a report of that determination. (c) The appraiser is entitled to examine the books and records of a responsible organization and may conduct investigations as the appraiser considers appropriate. A dissenting owner or responsible organization may submit to an appraiser evidence or other information relevant to the determination of the fair value of the ownership interest required by Subsection (b)(1). (d) The clerk of the court appointing the appraiser shall provide notice of the filing of the report under Subsection (b) to each dissenting owner named in the list filed under Section 10.361 and the responsible organization. (TBCA 5.12.C (part), D (part); TREITA 25.20(C) (part), (D) (part).) Sec. 10.364. OBJECTION TO APPRAISAL; HEARING. (a) A dissenting owner or responsible organization may object, based on the law or the facts, to all or part of an appraisal report containing the fair value of an ownership interest determined under Section 10.363(b). (b) If an objection to a report is raised under Subsection (a), the court shall hold a hearing to determine the fair value of the ownership interest that is the subject of the report. After the hearing, the court shall require the responsible organization to pay to the holders of the ownership interest the amount of the determined value with interest, accruing from the 91st day after the date the applicable action for which the owner elected to dissent was effected until the date of the judgment. (c) Interest under Subsection (b) accrues at the same rate as is provided for the accrual of prejudgment interest in civil cases. (d) The responsible organization shall: (1) immediately pay the amount of the judgment to a holder of an uncertificated ownership interest; and (2) pay the amount of the judgment to a holder of a certificated ownership interest immediately after the certificate holder surrenders to the responsible organization an endorsed certificate representing the ownership interest. (e) On payment of the judgment, the dissenting owner does not have an interest in the: (1) ownership interest for which the payment is made; or (2) responsible organization with respect to that ownership interest. (TBCA 5.12.D (part); TREITA 25.20(D) (part).) Sec. 10.365. COURT COSTS; COMPENSATION FOR APPRAISER. (a) An appraiser appointed under Section 10.361 is entitled to a reasonable fee payable from court costs. (b) All court costs shall be allocated between the responsible organization and the dissenting owners in the manner that the court determines to be fair and equitable. (TBCA 5.12.D (part); TREITA 25.20(D) (part).) Sec. 10.366. STATUS OF OWNERSHIP INTEREST HELD OR FORMERLY HELD BY DISSENTING OWNER. (a) An ownership interest of an organization acquired by a responsible organization under this subchapter: (1) in the case of a merger, conversion, or interest exchange, shall be held or disposed of as provided in the plan of merger, conversion, or interest exchange; and (2) in any other case, may be held or disposed of by the responsible organization in the same manner as other ownership interests acquired by the organization or held in its treasury. (b) An owner who has demanded payment for the owner's ownership interest under Section 10.356 is not entitled to vote or exercise any other rights of another owner with respect to the ownership interest except the right to: (1) receive payment for the ownership interest under this subchapter; and (2) bring an appropriate action to obtain relief on the ground that the action to which the demand relates would be or was fraudulent. (c) An ownership interest for which payment has been demanded under Section 10.356 may not be considered outstanding for purposes of any subsequent vote or action. (TBCA 5.12.E, 5.13.A; TREITA 25.20(E), 25.30(A).) Sec. 10.367. RIGHTS OF OWNERS FOLLOWING TERMINATION OF RIGHT OF DISSENT. (a) The rights of a dissenting owner terminate if: (1) the owner withdraws the demand under Section 10.356; (2) the owner's right of dissent is terminated under Section 10.356; (3) a petition is not filed within the period required by Section 10.361; or (4) after a hearing held under Section 10.361, the court adjudges that the owner is not entitled to elect to dissent from an action under this subchapter. (b) On termination of the right of dissent under this section: (1) the dissenting owner and all persons claiming a right under the owner are conclusively presumed to have approved and ratified the action to which the owner dissented and are bound by that action; (2) the owner's right to be paid the fair value of the owner's ownership interests ceases and the owner's status as an owner of those ownership interests is restored without prejudice in any interim proceeding if the owner's ownership interests were not canceled, converted, or exchanged as a result of the action or a subsequent fundamental business transaction; and (3) the dissenting owner is entitled to receive dividends or other distributions made in the interim to owners of the same class and series of ownership interests held by the owner as if a demand for the payment of the ownership interests had not been made under Section 10.356, subject to any change in or adjustment to ownership interests because of the cancellation or exchange of the ownership interests after the date a demand under Section 10.356 was made pursuant to a fundamental business transaction. (TBCA 5.13.C (part); TREITA 25.30(C) (part).) Sec. 10.368. EXCLUSIVITY OF REMEDY OF DISSENT AND APPRAISAL. In the absence of fraud in the transaction, any right of an owner of an ownership interest to dissent from an action and obtain the fair value of the ownership interest under this subchapter is the exclusive remedy for recovery of: (1) the value of the ownership interest or money damages to the owner with respect to the ownership interest; and (2) the owner's right in the organization with respect to a fundamental business transaction. (TBCA 5.12.G (part), 5.16.E (part); TREITA 25.20(G) (part).)
[Sections 10.369-10.900 reserved for expansion]
SUBCHAPTER Z. MISCELLANEOUS PROVISIONS
Sec. 10.901. CREDITORS; ANTITRUST. This code does not affect, nullify, or repeal the antitrust laws or abridge any right or rights of any creditor under existing laws. (TBCA 5.15.) Sec. 10.902. NONEXCLUSIVITY. This chapter does not limit the power of a domestic entity or non-code organization to acquire all or part of the ownership or membership interests of one or more classes or series of a domestic entity through a voluntary exchange or otherwise. (TBCA 5.01.E, 5.02.E; TREITA 23.10(E), 23.20(E).)
CHAPTER 11. WINDING UP AND TERMINATION OF DOMESTIC ENTITY
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 11.001. DEFINITIONS. In this chapter: (1) "Claim" means a right to payment, damages, or property, whether liquidated or unliquidated, accrued or contingent, matured or unmatured. (2) "Event requiring a winding up" means an event specified by Section 11.051. (3) "Existing claim" with respect to an entity means: (A) a claim against the entity that existed before the entity's termination and is not barred by limitations; or (B) a contractual obligation incurred after termination. (4) "Terminated entity" means a domestic entity the existence of which has been: (A) terminated in a manner authorized or required by this code, unless the entity has been reinstated in the manner provided by this code; or (B) forfeited pursuant to the Tax Code, unless the forfeiture has been set aside. (5) "Terminated filing entity" means a terminated entity that is a filing entity. (6) "Voluntary decision to wind up" means the determination to wind up a domestic entity made by the domestic entity or the owners, members, or governing authority of the domestic entity in the manner specified by the title of this code governing the domestic entity. (7) "Voluntary winding up" means winding up as a result of a voluntary decision to wind up. (8) "Winding up" means the process of winding up the business and affairs of a domestic entity as a result of the occurrence of an event requiring winding up. (TBCA 7.12.F; TNPCA 7.12.H; TLLCA 8.12.A.)
[Sections 11.002-11.050 reserved for expansion]
SUBCHAPTER B. WINDING UP OF DOMESTIC ENTITY
Sec. 11.051. EVENT REQUIRING WINDING UP OF DOMESTIC ENTITY. Winding up of a domestic entity is required on: (1) the expiration of the domestic entity's period of duration, if not perpetual; (2) a voluntary decision to wind up the domestic entity; (3) an event specified in the governing documents of the domestic entity requiring the winding up, dissolution, or termination of the domestic entity; (4) an event specified in this code requiring the winding up or termination of the domestic entity; or (5) a decree by a court requiring the winding up or dissolution of the domestic entity, rendered under this code or other law. (TBCA 6.01 (part), 6.02.A, 6.03.A (part), 7.01.A (part), B (part), F (part), 7.09 (part), 7.12.E (part); TLLCA 6.01.A (part); TNPCA 6.01.A (part), 7.01.A (part), B (part), F (part), 7.09 (part), 7.12.G (part); TPAA 8(B) (part); TREITA 3.10(A) (part), 19.10 (part); TRLPA 8.01, 8.02 (part); TRPA 8.01(a), (b), (c), (d), (e).) Sec. 11.052. WINDING UP PROCEDURES. (a) Except as provided by the title of this code governing the domestic entity, on the occurrence of an event requiring winding up of a domestic entity, unless the event requiring winding up is revoked under Section 11.151 or canceled under Section 11.152, the owners, members, managerial officials, or other persons specified in the title of this code governing the domestic entity shall, as soon as reasonably practicable, wind up the business and affairs of the domestic entity. The domestic entity shall: (1) cease to carry on its business, except to the extent necessary to wind up its business; (2) if the domestic entity is not a partnership, send a written notice of the winding up to each known claimant against the domestic entity; (3) collect and sell its property to the extent the property is not to be distributed in kind to the domestic entity's owners or members; and (4) perform any other act required to wind up its business and affairs. (b) During the winding up process, the domestic entity may prosecute or defend a civil, criminal, or administrative action. (TBCA 6.04 (part); TLLCA 6.03 (part), 6.05 (part); TREITA 19.10 (part); TRLPA 8.04(a) (part), (b) (part); TRPA 8.03(a), (b) (part).) Sec. 11.053. PROPERTY APPLIED TO DISCHARGE LIABILITIES AND OBLIGATIONS. (a) Except as provided by Subsection (b) and the title of this code governing the domestic entity, a domestic entity in the process of winding up shall apply and distribute its property to discharge, or make adequate provision for the discharge of, all of the domestic entity's liabilities and obligations. (b) Except as provided by the title of this code governing the domestic entity, if the property of a domestic entity is not sufficient to discharge all of the domestic entity's liabilities and obligations, the domestic entity shall: (1) apply its property, to the extent possible, to the just and equitable discharge of its liabilities and obligations, including liabilities and obligations owed to owners or members, other than for distributions; or (2) make adequate provision for the application of the property described by Subdivision (1). (c) Except as provided by the title of this code governing the domestic entity, after a domestic entity has discharged, or made adequate provision for the discharge of, all of its liabilities and obligations, the domestic entity shall distribute the remainder of its property, in cash or in kind, to the domestic entity's owners according to their respective rights and interests. (d) A domestic entity may continue its business wholly or partly, including delaying the disposition of property of the domestic entity, for the limited period necessary to avoid unreasonable loss of the entity's property or business. (TBCA 6.04 (part); TLLCA 6.04 (part), 6.05 (part); TNPCA 6.02.A(1); TREITA 19.10 (part); TRLPA 8.04(b) (part), 8.05; TRPA 8.03(b) (part), (c), 8.06(a).) Sec. 11.054. COURT SUPERVISION OF WINDING UP PROCESS. Subject to the other provisions of this code, on application of a domestic entity or an owner or member of a domestic entity, a court may: (1) supervise the winding up of the domestic entity; (2) appoint a person to carry out the winding up of the domestic entity; and (3) make any other order, direction, or inquiry that the circumstances may require. (TBCA 6.04 (part); TLLCA 6.05 (part); TNPCA 6.02.A(3) (part); TRLPA 8.04(a) (part); TRPA 8.01(e), 8.03(a) (part).) Sec. 11.055. COURT ACTION OR PROCEEDING DURING WINDING UP. During the winding up process, a domestic entity may continue prosecuting or defending a court action or proceeding by or against the domestic entity. (TBCA 7.12.A (part); TLLCA 6.08.B (part); TNPCA 7.12.A (part); TRLPA 8.04(b) (part).) Sec. 11.056. SUPPLEMENTAL EVENT REQUIRING WINDING UP OF LIMITED LIABILITY COMPANY. In addition to an event listed under Section 11.051, the termination of the continued membership of the last remaining member of a limited liability company is an event requiring a winding up unless, not later than the 90th day after the date of the termination, the legal representative or successor of the last remaining member agrees: (1) to continue the company; and (2) to become a member of the company effective as of the date of the termination or to designate another person who agrees to become a member of the company effective as of the date of the termination. (Del. Limited Liability Company Act 18-801(a) (part); TLLCA 6.01.A (part).) Sec. 11.057. SUPPLEMENTAL EVENTS REQUIRING WINDING UP OF GENERAL PARTNERSHIP. (a) An event requiring winding up of a general partnership includes, in addition to any event specified in Section 11.051, the following: (1) in a general partnership that is not for a definite term or for a particular undertaking or in which the partnership agreement does not provide for winding up the partnership business on a specified event, the express will of a majority-in-interest of the partners who have not assigned their interests; (2) in a general partnership for a definite term or for a particular undertaking, on: (A) the express will of all of the partners; or (B) the expiration of the term or the completion of the undertaking, unless otherwise continued under Section 152.709; (3) in a general partnership in which the partnership agreement provides for the winding up of the partnership business on a specified event, upon: (A) the express will of all of the partners; or (B) the occurrence of the specified event, unless otherwise continued under Section 152.709; (4) an event that makes it illegal for all or substantially all of the partnership business to be continued, but a cure of illegality before the 91st day after the date of notice to the general partnership of the event is effective retroactively to the date of the event for purposes of this subsection; (5) the sale of all or substantially all of the property of the general partnership outside the ordinary course of business; and (6) if a general partnership is not for a definite term or a particular undertaking and its partnership agreement does not provide for a specified event requiring a winding up of the partnership business, a request for winding up the partnership business from a partner, other than a partner who has agreed not to withdraw. (b) An event described by Subsection (a)(6) requires the winding up of a general partnership 60 days after the date on which the general partnership receives notice of the request or at a later date as specified by the notice, unless a majority-in-interest of the partners agree to continue the general partnership. (TRPA 8.01(a), (b), (c), (d), (f), (g) (part).) Sec. 11.058. SUPPLEMENTAL EVENTS REQUIRING WINDING UP OF LIMITED PARTNERSHIP. An event requiring the winding up of a limited partnership includes, in addition to any event specified in Section 11.051, the following: (1) written consent of all partners to the winding up and termination of the limited partnership; and (2) an event of withdrawal of a general partner. (TRLPA 8.01 (part).) Sec. 11.059. SUPPLEMENTAL PROVISIONS FOR CORPORATIONS. For purposes of Section 11.051(3), the event requiring the winding up, dissolution, or termination of a domestic corporation must be specific in: (1) the certificate of formation of the corporation; or (2) bylaws of the corporation adopted by the owners or members of the corporation in the same manner as an amendment to the certificate of formation of the corporation. (New.)
[Sections 11.060-11.100 reserved for expansion]
SUBCHAPTER C. TERMINATION OF DOMESTIC ENTITY
Sec. 11.101. CERTIFICATE OF TERMINATION FOR FILING ENTITY. (a) On completion of the winding up process under Subchapter B, a filing entity must file a certificate of termination in accordance with Chapter 4. (b) A certificate from the comptroller that all taxes administered by the comptroller under Title 2, Tax Code, have been paid must be filed with the certificate of termination in accordance with Chapter 4 if the filing entity is a professional corporation, for-profit corporation, or limited liability company. (c) The certificate of termination must contain: (1) the name of the filing entity; (2) the name and address of each of the filing entity's governing persons; (3) the entity's file number assigned by the secretary of state, unless the entity is a real estate investment trust; (4) the nature of the event requiring winding up; (5) a statement that the filing entity has complied with the provisions of this code governing its winding up; and (6) any other information required by this code to be included in the certificate of termination for the filing entity. (TBCA 6.06 (part), 6.07 (part); TLLCA 6.07 (part), 6.08.A (part); TNPCA 6.05 (part); TPAA 18 (part); TREITA 19.20(A), (B); TRLPA 2.03(a) (part), (b).) Sec. 11.102. EFFECTIVENESS OF TERMINATION OF FILING ENTITY. Except as otherwise provided by this chapter, the existence of a filing entity terminates on the filing of a certificate of termination with the filing officer. (TBCA 6.01.A(3) (part), 6.07.B (part); TLLCA 6.08.B (part); TNPCA 6.06.B; TREITA 19.20(C); TRLPA 2.03(a) (part).) Sec. 11.103. EFFECTIVENESS OF TERMINATION OF NONFILING ENTITY. Except as otherwise provided by this chapter, the existence of a nonfiling entity terminates on the completion of the winding up of its business and affairs. Notice of the termination must be provided by the nonfiling entity in the manner provided in the governing documents of the nonfiling entity if notice of termination is required under the governing documents. (TRPA 8.02.) Sec. 11.104. ACTION BY SECRETARY OF STATE. The secretary of state shall remove from its active records a domestic filing entity whose period of duration has expired when the secretary of state determines that: (1) the entity has failed to file a certificate of termination in accordance with Section 11.101; and (2) the entity has failed to file an amendment to extend its existence in accordance with Section 11.152. (New.) Sec. 11.105. SUPPLEMENTAL INFORMATION REQUIRED BY CERTIFICATE OF TERMINATION OF NONPROFIT CORPORATION. (a) In addition to the information required by Section 11.101, the certificate of termination filed by a nonprofit corporation that has completed its winding up process must contain a statement that: (1) any property of the nonprofit corporation has been transferred, conveyed, applied, or distributed in accordance with this chapter and Chapter 22; and (2) there is no suit pending against the nonprofit corporation or adequate provision has been made for the satisfaction of any judgment, order, or decree that may be entered against the nonprofit corporation in a pending suit. (b) In addition to the statements required by Subsection (a), if the nonprofit corporation received and held property permitted to be used only for charitable, religious, eleemosynary, benevolent, educational, or similar purposes, but the nonprofit corporation did not hold the property on a condition requiring return, transfer, or conveyance because of the winding up and termination, the certificate of termination must include a statement that distribution of that property has been effected in accordance with a plan of distribution adopted in compliance with this code for the distribution of that property. (TNPCA 6.05 (part).)
[Sections 11.106-11.150 reserved for expansion]
SUBCHAPTER D. REVOCATION AND CONTINUATION
Sec. 11.151. REVOCATION OF VOLUNTARY WINDING UP. (a) Before the termination of the existence of a domestic entity takes effect, the domestic entity may revoke a voluntary decision to wind up the entity by approval of the revocation in the manner specified in the title of this code governing the entity. (b) A domestic entity may continue its business following the revocation of a voluntary decision to wind up under Subsection (a). (TBCA 6.05.A (part), D (part); TLLCA 6.06; TNPCA 6.04.A (part), B; TRPA 8.01(g) (part); TRLPA 8.01 (part).) Sec. 11.152. CONTINUATION OF BUSINESS WITHOUT WINDING UP. (a) Subject to Subsections (c) and (d), a domestic entity to which an event requiring the winding up of the entity occurs as specified by Section 11.051(3) or (4) may cancel the event requiring winding up in the manner specified in the title of this code governing the domestic entity not later than the first anniversary of the date of the event requiring winding up or an earlier period prescribed by the title of this code governing the domestic entity. (b) A domestic entity to which an event requiring winding up as specified in Section 11.051(1) occurs may cancel the event requiring winding up by amending its governing documents in the manner provided by this code, not later than the third anniversary of the date of the event requiring winding up or an earlier date prescribed by the title of this code governing the domestic entity, to extend the period of its duration. The expiration of the period of its duration does not by itself create a vested right on the part of an owner, member, or creditor of the entity to prevent the extension of its existence. An act undertaken or a contract entered into by a terminated entity during a period in which the entity could have extended its existence under this section is not invalidated by the expiration of the period of the entity's duration, regardless of whether the entity has taken any action to extend its existence. (c) A domestic entity may not cancel an event requiring winding up specified in Section 11.051(3) and continue its business if the action is prohibited by the entity's governing documents or the title of this code governing the entity. (d) A domestic entity may cancel an event requiring winding up specified in Section 11.051(4) and continue its business only if the action: (1) is not prohibited by the entity's governing documents; and (2) is expressly authorized by the title of this code governing the entity. (e) On cancellation of an event requiring winding up under this section, the domestic entity may continue its business. (TBCA 7.12.E; TNPCA 7.12.G; TLLCA 6.01.B, 8.12.A; TRPA 4.07(a); TRLPA 8.01 (part).)
[Sections 11.153-11.200 reserved for expansion]
SUBCHAPTER E. REINSTATEMENT OF TERMINATED ENTITY
Sec. 11.201. CONDITIONS FOR REINSTATEMENT. (a) A terminated entity may be reinstated under this subchapter if: (1) the termination was by mistake or inadvertent; (2) the termination occurred without the approval of the entity's governing persons when their approval is required by the title of this code governing the terminated entity; (3) the process of winding up before termination had not been completed by the entity; or (4) the legal existence of the entity is necessary to: (A) convey or assign property; (B) settle or release a claim or liability; (C) take an action; or (D) sign an instrument or agreement. (b) A terminated entity may not be reinstated under this section if the termination occurred as a result of: (1) an order of a court or the secretary of state; (2) an event requiring winding up that is specified in the title of this code governing the terminated entity, if that title prohibits reinstatement; or (3) forfeiture under the Tax Code. (TBCA 6.05.A (part).) Sec. 11.202. PROCEDURES FOR REINSTATEMENT. (a) To the extent applicable, a terminated entity, to be reinstated, must complete the requirements of this section not later than the third anniversary of the date the termination of the terminated entity's existence took effect. (b) The owners, members, governing persons, or other persons must approve the reinstatement of the domestic entity in the manner provided by the title of this code governing the domestic entity. (c) After approval of the reinstatement of a filing entity that was terminated, and not later than the third anniversary of the date of the filing of the entity's certificate of termination, the filing entity shall file a certificate of reinstatement in accordance with Chapter 4. (d) A certificate of reinstatement filed under Subsection (c) must contain: (1) the name of the filing entity; (2) the filing number the filing officer assigned to the entity; (3) the effective date of the entity's termination; (4) a statement that the reinstatement of the filing entity has been approved in the manner required by this code; and (5) the name of the entity's registered agent and the address of the entity's registered office. (e) A letter of eligibility from the comptroller stating that the filing entity has satisfied all franchise tax liabilities and may be reinstated must be filed with the certificate of reinstatement if the filing entity is a professional corporation, for-profit corporation, or limited liability company. (TBCA 6.05.B.) Sec. 11.203. USE OF NAME 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 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 or obtains consent for the use of the similar name. (TBCA 6.05.C.) Sec. 11.204. EFFECTIVENESS OF REINSTATEMENT OF NONFILING ENTITY. The reinstatement of a terminated nonfiling entity takes effect on the approval required by Section 11.202(b). (New.) Sec. 11.205. EFFECTIVENESS OF REINSTATEMENT OF FILING ENTITY. The reinstatement of a terminated filing entity that previously filed a certificate of termination takes effect on the filing of the entity's certificate of reinstatement. (TBCA 6.05.D (part).) Sec. 11.206. EFFECT OF REINSTATEMENT. When the reinstatement of a terminated entity takes effect: (1) the existence of the terminated entity is considered to have continued without interruption from the date of termination; and (2) the terminated entity may carry on its business as if the termination of its existence had not occurred. (TBCA 6.05.D (part).)
[Sections 11.207-11.250 reserved for expansion]
SUBCHAPTER F. INVOLUNTARY TERMINATION OF FILING ENTITY
BY SECRETARY OF STATE
Sec. 11.251. TERMINATION OF FILING ENTITY BY SECRETARY OF STATE. (a) If it appears to the secretary of state that, with respect to a filing entity, a circumstance described by Subsection (b) exists, the secretary of state may notify the entity of the circumstance by regular or certified mail addressed to the entity at the entity's registered office or principal place of business as shown on the records of the secretary of state. (b) The secretary of state may terminate a filing entity's existence if the secretary finds that the entity has failed to, and, before the 91st day after the date notice was mailed has not corrected the entity's failure to: (1) file a report within the period required by law or to pay a fee or penalty prescribed by law when due and payable; (2) maintain a registered agent or registered office in this state as required by law; or (3) pay a fee required in connection with a filing, or payment of the fee was dishonored when presented by the state for payment. (c) This subchapter shall not apply to real estate investment trusts. (TBCA 7.01.B, C(1); TLLCA 8.12.A; TNPCA 7.01.B, C(1); TRLPA 13.06(a), (b), 13.08(a).) Sec. 11.252. CERTIFICATE OF TERMINATION. (a) If termination of a filing entity's existence is required, the secretary of state shall: (1) issue a certificate of termination; and (2) deliver a certificate of termination by regular or certified mail to the filing entity at its registered office or principal place of business. (b) The certificate of termination must state: (1) that the filing entity has been involuntarily terminated; and (2) the date and cause of the termination. (c) Except as otherwise provided by this chapter, the existence of the filing entity is terminated on the issuance of the certificate of termination by the secretary of state. (TBCA 7.01.C(2), D; TLLCA 8.12.A; TNPCA 7.01.C(2), D; TRLPA 13.06(b) (part), 13.08(a) (part).) Sec. 11.253. REINSTATEMENT BY SECRETARY OF STATE AFTER INVOLUNTARY TERMINATION. (a) The secretary of state shall reinstate a filing entity that has been involuntarily terminated under this subchapter if the entity files a certificate of reinstatement in accordance with Chapter 4 and: (1) the entity has corrected the circumstances that led to the involuntary termination and any other circumstances that may exist of the types described by Section 11.251(b), including the payment of fees, interest, or penalties; or (2) the secretary of state finds that the circumstances that led to the involuntary termination did not exist at the time of termination. (b) A certificate of reinstatement filed under Subsection (a) must contain: (1) the name of the filing entity; (2) the filing number assigned by the filing officer to the entity; (3) the effective date of the involuntary termination; (4) a statement that the circumstances giving rise to the involuntary termination have been corrected; and (5) the name of the entity's registered agent and the address of the entity's registered office. (c) A certificate of reinstatement must be accompanied by each amendment to the entity's certificate of formation that is required by intervening events, including circumstances requiring an amendment to the filing entity's name as described in Section 11.203. (d) If a filing entity is reinstated before the third anniversary of the date of its involuntary termination, the entity is considered to have continued in existence without interruption from the date of termination. The reinstatement shall have no effect on any issue of personal liability of the governing persons, officers, or agents of the filing entity during the period between termination and reinstatement. (TBCA 7.01.E (part); TLLCA 8.12.A; TNPCA 7.01.E (part); TRLPA 13.09(a), (b) (part).) Sec. 11.254. REINSTATEMENT OF CERTIFICATE OF FORMATION FOLLOWING TAX FORFEITURE. A filing entity whose certificate of formation has been forfeited under the provisions of the Tax Code must follow the procedures in the Tax Code to reinstate its certificate of formation. (TBCA 7.12.F(1) (part); TLLCA 8.12.A.)
[Sections 11.255-11.300 reserved for expansion]
SUBCHAPTER G. JUDICIAL WINDING UP AND TERMINATION
Sec. 11.301. INVOLUNTARY WINDING UP AND TERMINATION OF FILING ENTITY BY COURT ACTION. (a) A court may enter a decree requiring winding up of a filing entity's business and termination of the filing entity's existence if, as the result of an action brought under Section 11.303, the court finds that one or more of the following problems exist: (1) the filing entity or its organizers did not comply with a condition precedent to its formation; (2) the certificate of formation of the filing entity or any amendment to the certificate of formation was fraudulently filed; (3) a misrepresentation of a material matter has been made in an application, report, affidavit, or other document submitted by the filing entity under this code; (4) the filing entity has continued to transact business beyond the scope of the purpose of the filing entity as expressed in its certificate of formation; or (5) public interest requires winding up and termination of the filing entity because: (A) the filing entity has been convicted of a felony or a high managerial agent of the filing entity has been convicted of a felony committed in the conduct of the filing entity's affairs; (B) the filing entity or high managerial agent has engaged in a persistent course of felonious conduct; and (C) termination is necessary to prevent future felonious conduct of the same character. (b) Sections 11.302-11.307 do not apply to Subsection (a)(5). (TBCA 7.01.A, F, G; TLLCA 8.12.A; TNPCA 7.01.A, F, G.) Sec. 11.302. NOTIFICATION OF CAUSE BY SECRETARY OF STATE. (a) The secretary of state shall provide to the attorney general: (1) the name of a filing entity that has given cause under Section 11.301 for involuntary winding up of the entity's business and termination of the entity's existence; and (2) the facts relating to the cause for the winding up and termination. (b) When notice is provided under Subsection (a), the secretary of state shall notify the filing entity of the circumstances by writing sent to the entity at its registered office in this state. The notice must state that the secretary of state has given notice under Subsection (a) and the grounds for the notification. The secretary of state must record the date a notice required by this subsection is sent. (c) A court shall accept a certificate issued by the secretary of state as to the facts relating to the cause for the winding up and termination and the sending of a notice under Subsection (b) as prima facie evidence of the facts stated in the certificate and the sending of the notice. (TBCA 7.02.A, B; TNPCA 7.02.A, B.) Sec. 11.303. FILING OF ACTION BY ATTORNEY GENERAL. The attorney general shall file an action against a filing entity in the name of the state seeking termination of the entity's existence if: (1) the filing entity has not cured the problems for which winding up and termination is sought before the 31st day after the date the notice under Section 11.302(b) is mailed; and (2) the attorney general determines that cause exists for the involuntary winding up of a filing entity's business and termination of the entity's existence under Section 11.301. (TBCA 7.02.C; TNPCA 7.02.C.) Sec. 11.304. CURE BEFORE FINAL JUDGMENT. An action filed by the attorney general under Section 11.303 shall be abated if, before a district court renders judgment on the action, the filing entity: (1) cures the problems for which winding up and termination is sought; and (2) pays the costs of the action. (TBCA 7.02.D; TNPCA 7.02.D.) Sec. 11.305. JUDGMENT REQUIRING WINDING UP AND TERMINATION. If a district court finds in an action brought under this subchapter that proper grounds exist under Section 11.301(a) for a winding up of a filing entity's business and termination of the filing entity's existence, the court shall: (1) make findings to that effect; and (2) subject to Section 11.306, enter a judgment not earlier than the fifth day after the date the court makes its findings. (TBCA 7.02.E (part); TNPCA 7.02.E (part).) Sec. 11.306. STAY OF JUDGMENT. (a) If, in an action brought under this subchapter, a filing entity has proved by a preponderance of the evidence and obtained a finding that the problems for which the filing entity has been found guilty were not wilful or the result of a failure to take reasonable precautions, the entity may make a sworn application to the court for a stay of entry of the judgment to allow the filing entity a reasonable opportunity to cure the problems for which it has been found guilty. An application made under this subsection must be made not later than the fifth day after the date the court makes its findings under Section 11.305. (b) After a filing entity has made an application under Subsection (a), a court shall stay the entry of the judgment if the court is reasonably satisfied after considering the application and evidence offered with respect to the application that the filing entity: (1) is able and intends in good faith to cure the problems for which it has been found guilty; and (2) has not applied for the stay without just cause. (c) A court shall stay an entry of judgment under Subsection (b) for the period the court determines is reasonably necessary to afford the filing entity the opportunity to cure its problems if the entity acts with reasonable diligence. The court may not stay the entry of the judgment for longer than 60 days after the date the court's findings are made. (d) The court shall dismiss an action against a filing entity that, during the period the action is stayed by the court under this section, cures the problems for which winding up and termination is sought and pays all costs accrued in the action. (e) If a court finds that a filing entity has not cured the problems for which winding up and termination is sought within the period prescribed by Subsection (c), the court shall enter final judgment requiring a winding up of the filing entity's business. (TBCA 7.02.E (part); TLLCA 8.12.A; TNPCA 7.02.E (part).) Sec. 11.307. OPPORTUNITY FOR CURE AFTER AFFIRMATION OF FINDINGS BY APPEALS COURT. (a) An appellate court that affirms a trial court's findings against a filing entity under this subchapter shall remand the case to the trial court with instructions to grant the filing entity an opportunity to cure the problems for which the entity has been found guilty if: (1) the filing entity did not make an application to the trial court for stay of the entry of the judgment; (2) the appellate court is satisfied that the appeal was taken in good faith and not for purpose of delay or with no sufficient cause; (3) the appellate court finds that the problems for which the filing entity has been found guilty are capable of being cured; and (4) the filing entity has prayed for the opportunity to cure its problems in the appeal. (b) The appellate court shall determine the period, which may not be longer than 60 days after the date the case is remanded to the trial court, to be afforded to a filing entity to enable the filing entity to cure its problems under Subsection (a). (c) The trial court to which an action against a filing entity has been remanded under this section shall dismiss the action if, during the period prescribed by the appellate court for that conduct, the filing entity cures the problems for which winding up and termination is sought and pays all costs accrued in the action. (d) If a filing entity has not cured the problems for which winding up and termination is sought within the period prescribed by the appellate court under Subsection (b), the judgment requiring winding up and termination shall become final. (TBCA 7.02.F; TLLCA 8.12.A; TNPCA 7.02.F.) Sec. 11.308. JURISDICTION AND VENUE. (a) The attorney general shall bring an action for the involuntary winding up and termination of a filing entity under this subchapter in: (1) a district court of the county in which the registered office or principal place of business of the filing entity in this state is located; or (2) a district court of Travis County. (b) A district court described by Subsection (a) has jurisdiction of the action for involuntary winding up and termination. (TBCA 7.03 (part); TLLCA 8.12.A; TNPCA 7.03 (part).) Sec. 11.309. PROCESS IN STATE ACTION. Citation in an action for the involuntary winding up and termination of a filing entity under this subchapter shall be issued and served as provided by law. (TBCA 7.03 (part); TLLCA 8.12.A; TNPCA 7.03 (part).) Sec. 11.310. PUBLICATION OF NOTICE. (a) If process in an action under this subchapter is returned not found, the attorney general shall publish notice in a newspaper in the county in which the registered office of the filing entity in this state is located. The notice must contain: (1) a statement of the pendency of the action; (2) the title of the court; (3) the title of the action; and (4) the earliest date on which default judgment may be entered by the court. (b) Notice under this section must be published at least once a week for two consecutive weeks beginning at any time after the citation has been returned. (c) The attorney general may include in one published notice the name of each filing entity against which an action for involuntary winding up and termination is pending in the same court. (d) Not later than the 10th day after the date notice under this section is first published, the attorney general shall send a copy of the notice to the filing entity at the filing entity's registered office in this state. A certificate from the attorney general regarding the sending of the notice is prima facie evidence that notice was sent under this section. (e) Unless a filing entity has been served with citation, a default judgment may not be taken against the entity before the 31st day after the date the notice is first published. (TBCA 7.03 (part); TLLCA 8.12.A; TNPCA 7.03 (part).) Sec. 11.311. ACTION ALLOWED AFTER EXPIRATION OF FILING ENTITY'S DURATION. The expiration of a filing entity's period of duration does not, by itself, create a vested right on the part of an owner or creditor of the filing entity to prevent an action by the attorney general for the involuntary winding up of the filing entity's business and termination of the filing entity's existence. (TBCA 7.12.E (part); TLLCA 8.12.A; TNPCA 7.12.G (part).) Sec. 11.312. COMPLIANCE BY TERMINATED ENTITY. On the decree of a court requiring winding up of a filing entity's business, the filing entity shall comply with: (1) the requirements of the decree concerning the winding up process; and (2) Subchapter B to the extent it does not conflict with the decree. (New.) Sec. 11.313. TIMING OF TERMINATION. A court may enter a decree under Section 11.301 terminating the existence of a filing entity: (1) when the court considers it necessary or advisable; or (2) on completion of the winding up process. (TBCA 7.09.) Sec. 11.314. INVOLUNTARY WINDING UP AND TERMINATION OF PARTNERSHIP OR LIMITED LIABILITY COMPANY. A district court in the county in which the registered office or principal place of a domestic partnership or limited liability company is located has jurisdiction to order the winding up and termination of the domestic partnership or limited liability company on application by: (1) a partner in the partnership if the court determines that: (A) the economic purpose of the partnership is likely to be unreasonably frustrated; or (B) another partner has engaged in conduct relating to the partnership's business that makes it not reasonably practicable to carry on the business in partnership with that partner; or (2) an owner of the partnership or limited liability company if the court determines that it is not reasonably practicable to carry on the entity's business in conformity with its governing documents. (TLLCA 6.02; TRLPA 8.02; TRPA 8.01(e).) Sec. 11.315. FILING OF DECREE OF TERMINATION AGAINST FILING ENTITY. (a) The clerk of a court that enters a decree terminating the existence of a filing entity shall file a certified copy of the decree in accordance with Chapter 4. (b) A fee may not be charged for the filing of a decree under this section. (TBCA 7.10; TLLCA 8.12.A; TNPCA 7.10.)
[Sections 11.316-11.350 reserved for expansion]
SUBCHAPTER H. CLAIMS RESOLUTION ON TERMINATION
Sec. 11.351. LIABILITY OF TERMINATED FILING ENTITY. A terminated filing entity is liable only for an existing claim. (TBCA 7.12.C (part); TLLCA 8.12.A; TNPCA 7.12.C (part).) Sec. 11.352. DEPOSIT WITH COMPTROLLER OF AMOUNT DUE OWNERS AND CREDITORS WHO ARE UNKNOWN OR CANNOT BE LOCATED. (a) On the voluntary or involuntary termination of a domestic filing entity, the portion of the entity's assets distributable to creditors or owners who are unknown or cannot be found after the exercise of reasonable diligence by a person responsible for the distribution in liquidation of the domestic filing entity's assets must be reduced to cash and deposited as provided by Subsection (b). (b) Money from assets liquidated under Subsection (a) shall be deposited with the comptroller in a special account to be maintained by the comptroller. The money must be accompanied by a statement to the comptroller containing: (1) the name and last known address of each person who is known to be entitled to all or part of the account; (2) the amount of each entitled person's distributive portion of the money; and (3) other information about each person who is entitled to all or part of the money as the comptroller may reasonably require. (c) The comptroller shall issue a receipt for money received under this section. (TBCA 7.11.A (part); TLLCA 8.12.A; TNPCA 7.11.A (part).) Sec. 11.353. DISCHARGE OF LIABILITY OF PERSON RESPONSIBLE FOR LIQUIDATION. A person responsible for the distribution in liquidation of a filing entity's assets will be released and discharged from further liability with respect to money received from the liquidation when the person deposits the money with the comptroller under Section 11.352. (TBCA 7.11.A (part); TLLCA 8.12.A; TNPCA 7.11.A (part).) Sec. 11.354. PAYMENT FROM ACCOUNT BY COMPTROLLER. (a) To claim money deposited in an account under Section 11.352, a person must submit to the comptroller satisfactory written proof of the person's right to the money not later than the seventh anniversary of the date the money was deposited with the comptroller. (b) The comptroller shall issue a warrant drawn on the account created under Section 11.352 in favor of a person who meets the requirements for making a claim under Subsection (a) and in the amount to which the person is entitled. (TBCA 7.11.B (part); TLLCA 8.12.A; TNPCA 7.11.B (part).) Sec. 11.355. NOTICE OF ESCHEAT; ESCHEAT. (a) If no claimant has made satisfactory proof of a right to the money within the period prescribed by Section 11.354(a), the comptroller shall publish in one issue of a newspaper of general circulation in Travis County a notice of the proposed escheat of the money. (b) A notice published under Subsection (a) must contain: (1) the name and last known address of any known creditor or owner entitled to the money; (2) the amount of money deposited with the comptroller; and (3) the name of the terminated filing entity from whose assets the money was derived. (c) If no claimant makes satisfactory proof to the comptroller of a right to the money before the 61st day after the date notice under this section is published, the money automatically escheats to and becomes the property of the state and shall be deposited in the general revenue fund. (TBCA 7.11.B (part); TLLCA 8.12.A; TNPCA 7.11.B (part).) Sec. 11.356. LIMITED SURVIVAL AFTER TERMINATION. (a) Notwithstanding the termination of a domestic filing entity under this chapter, the terminated filing entity continues in existence until the third anniversary of the effective date of the entity's termination only for purposes of: (1) prosecuting or defending in the terminated filing entity's name an action or proceeding brought by or against the terminated entity; (2) permitting the survival of an existing claim by or against the terminated filing entity; (3) holding title to and liquidating property that remained with the terminated filing entity at the time of termination or property that is collected by the terminated filing entity after termination; (4) applying or distributing property, or its proceeds, as provided by Section 11.053; and (5) settling affairs not completed before termination. (b) A terminated filing entity may not continue its existence for the purpose of continuing the business or affairs for which the terminated filing entity was formed unless the terminated filing entity is reinstated under Subchapter E. (c) If an action on an existing claim by or against a terminated filing entity has been brought before the expiration of the three-year period after the date of the entity's termination and the claim was not extinguished under Section 11.359, the terminated filing entity continues to survive for purposes of: (1) the action until all judgments, orders, and decrees have been fully executed; and (2) the application or distribution of any property of the terminated filing entity as provided by Section 11.053 until the property has been applied or distributed. (TBCA 7.12.A, C (part); TLLCA 8.12.A; TNPCA 7.12.A, C (part).) Sec. 11.357. GOVERNING PERSONS OF ENTITY DURING LIMITED SURVIVAL. (a) Subject to the provisions of the title governing the terminated filing entity, during the three-year period that a terminated filing entity's existence is continued under Section 11.356, the governing persons of the terminated filing entity serving at the time of termination shall continue to manage the affairs of the terminated filing entity for the limited purposes specified by Section 11.356 and have the powers necessary to accomplish those purposes. The number of governing persons: (1) may be reduced because of the death of a governing person; and (2) may include successors to governing persons chosen by the other governing persons. (b) In exercising powers prescribed under Subsection (a), a governing person: (1) has the same duties to the terminated filing entity that the person had immediately before the termination; and (2) is liable to the terminated filing entity for the person's actions taken after the entity's termination to the same extent that the person would have been liable had the person taken those actions before the termination. (TBCA 7.12.B; TLLCA 8.12.A; TNPCA 7.12.B.) Sec. 11.358. ACCELERATED PROCEDURE FOR EXISTING CLAIM RESOLUTION. (a) A terminated filing entity may shorten the period for resolving a person's existing claim against the entity by giving notice by registered or certified mail, return receipt requested, to the claimant at the claimant's last known address that the claim must be resolved under this section. (b) The notice required under Subsection (a) must: (1) state the requirements of Subsections (c) and (d) for presenting a claim; (2) provide the mailing address to which the person's claim against the terminated filing entity must be sent; (3) state that the claim will be extinguished if written presentation of the claim is not received at the address given on or before the date specified in the notice, which may not be earlier than the 120th day after the date the notice is mailed to the person by the terminated filing entity; and (4) be accompanied by a copy of this section. (c) To assert a claim, a person who is notified by a terminated filing entity that the person's claim must be resolved under this section must present the claim in writing to the terminated filing entity at the address given by the entity in the notice. (d) A claim presented under Subsection (c) must: (1) contain the: (A) identity of the claimant; and (B) nature and amount of the claim; and (2) be received by the terminated filing entity not later than the date specified in the notice under Subsection (b)(3). (e) If a person presents a claim that meets the requirements of this section, the terminated filing entity to whom the claim is presented may give written notice to the person that the claim is rejected by the terminated entity. (f) Notice under Subsection (e) must: (1) be sent by registered or certified mail, return receipt requested, and addressed to the last known address of the person presenting the claim; (2) state that the claim has been rejected by the terminated entity; (3) state that the claim will be extinguished unless an action on the claim is brought: (A) not later than the 180th day after the date the notice of rejection of the claim was mailed to the person; and (B) not later than the third anniversary of the effective date of the entity's termination; and (4) state the date on which notice of the claim's rejection was mailed and the effective date of the entity's termination. (TBCA 7.12.D (part); TLLCA 8.12.A; TNPCA 7.12.D, E.) Sec. 11.359. EXTINGUISHMENT OF EXISTING CLAIM. (a) Except as provided by Subsection (b), an existing claim by or against a terminated filing entity is extinguished unless an action or proceeding is brought on the claim not later than the third anniversary of the date of termination of the entity. (b) A person's claim against a terminated filing entity may be extinguished before the period prescribed by Subsection (a) if the person is notified under Section 11.358(a) that the claim will be resolved under Section 11.358 and the person: (1) fails to properly present the claim in writing under Sections 11.358(c) and (d); or (2) fails to bring an action on a claim rejected under Section 11.358(e) before: (A) the 180th day after the date the notice rejecting the claim was mailed to the person; and (B) the third anniversary of the effective date of the entity's termination. (TBCA 7.12.C (part), D (part); TLLCA 8.12.A; TNPCA 7.12.C (part), F.)
[Sections 11.360-11.400 reserved for expansion]
SUBCHAPTER I. RECEIVERSHIP
Sec. 11.401. CODE GOVERNS. A receiver may be appointed for a domestic entity or for a domestic entity's property or business only as provided for and on the conditions set forth in this code. (TBCA 7.07.A (part); TLLCA 8.12.A; TNPCA 7.07.A (part).) Sec. 11.402. JURISDICTION TO APPOINT RECEIVER. (a) A court that has subject matter jurisdiction over specific property of a domestic or foreign entity that is located in this state and is involved in litigation has jurisdiction to appoint a receiver for that property. (b) A district court in the county in which the registered office or principal place of business of a domestic entity is located has jurisdiction to: (1) appoint a receiver for the property and business of a domestic entity for the purpose of rehabilitating the entity; or (2) order the liquidation of the property and business of a domestic entity and appoint a receiver to effect that liquidation. (TBCA 7.04.A (part), 7.05.A (part), 7.06.A (part); TLLCA 8.12.A; TNPCA 7.04.A (part), 7.05.A (part), 7.06.A (part).) Sec. 11.403. APPOINTMENT OF RECEIVER FOR SPECIFIC PROPERTY. (a) Subject to Subsection (b), and on the application of a person whose right to or interest in any property or fund or the proceeds from the property or fund is probable, a court that has jurisdiction over specific property of a domestic or foreign entity may appoint a receiver in an action: (1) by a vendor to vacate a fraudulent purchase of the property; (2) by a creditor to subject the property or fund to the creditor's claim; (3) between partners or others jointly owning or interested in the property or fund; (4) by a mortgagee of the property for the foreclosure of the mortgage and sale of the property, when: (A) it appears that the mortgaged property is in danger of being lost, removed, or materially injured; or (B) it appears that the mortgage is in default and that the property is probably insufficient to discharge the mortgage debt; or (5) in which receivers for specific property have been previously appointed by courts of equity. (b) A court may appoint a receiver for the property or fund under Subsection (a) only if: (1) with respect to an action brought under Subsection (a)(1), (2), or (3), it is shown that the property or fund is in danger of being lost, removed, or materially injured; (2) circumstances exist that are considered by the court to necessitate the appointment of a receiver to conserve the property or fund and avoid damage to interested parties; (3) all other requirements of law are complied with; and (4) the court determines that other available legal and equitable remedies are inadequate. (c) The court appointing a receiver under this section has and shall retain exclusive jurisdiction over the specific property placed in receivership. The court shall determine the rights of the parties in the property or its proceeds. (d) If the condition necessitating the appointment of a receiver under this section is remedied, the receivership shall be terminated immediately, and the receiver shall redeliver to the domestic entity all of the property remaining in receivership. (TBCA 7.04; TLLCA 8.12.A; TNPCA 7.04.) Sec. 11.404. APPOINTMENT OF RECEIVER TO REHABILITATE DOMESTIC ENTITY. (a) Subject to Subsection (b), a court that has jurisdiction over the property and business of a domestic entity under Section 11.402(b) may appoint a receiver for the entity's property and business if: (1) in an action by an owner or member of the domestic entity, it is established that: (A) the entity is insolvent or in imminent danger of insolvency; (B) the governing persons of the entity are deadlocked in the management of the entity's affairs, the owners or members of the entity are unable to break the deadlock, and irreparable injury to the entity is being suffered or is threatened because of the deadlock; (C) the actions of the governing persons of the entity are illegal, oppressive, or fraudulent; (D) the property of the entity is being misapplied or wasted; or (E) with respect to a for-profit corporation, the shareholders of the entity are deadlocked in voting power and have failed, for a period of at least two years, to elect successors to the governing persons of the entity whose terms have expired or would have expired on the election and qualification of their successors; (2) in an action by a creditor of the domestic entity, it is established that: (A) the entity is insolvent, the claim of the creditor has been reduced to judgment, and an execution on the judgment was returned unsatisfied; or (B) the entity is insolvent and has admitted in writing that the claim of the creditor is due and owing; or (3) in an action other than an action described by Subdivision (1) or (2), courts of equity have traditionally appointed a receiver. (b) A court may appoint a receiver under Subsection (a) only if: (1) circumstances exist that are considered by the court to necessitate the appointment of a receiver to conserve the property and business of the domestic entity and avoid damage to interested parties; (2) all other requirements of law are complied with; and (3) the court determines that all other available legal and equitable remedies, including the appointment of a receiver for specific property of the domestic entity under Section 11.402, are inadequate. (c) If the condition necessitating the appointment of a receiver under this section is remedied, the receivership shall be terminated immediately, the management of the domestic entity shall be restored to its managerial officials, and the receiver shall redeliver to the domestic entity all of its property remaining in receivership. (TBCA 7.05; TLLCA 8.12.A; TNPCA 7.05.) Sec. 11.405. APPOINTMENT OF RECEIVER TO LIQUIDATE DOMESTIC ENTITY; LIQUIDATION. (a) Subject to Subsection (b), a court that has jurisdiction over the property and business of a domestic entity under Section 11.402(b) may order the liquidation of the property and business of the domestic entity and may appoint a receiver to effect the liquidation: (1) when an action has been filed by the attorney general under this chapter to terminate the existence of the entity and it is established that liquidation of the entity's business and affairs should precede the entry of a decree of termination; (2) on application of the entity to have its liquidation continued under the supervision of the court; (3) if the entity is in receivership and the court does not find that any plan presented before the first anniversary of the date the receiver was appointed is feasible for remedying the condition requiring appointment of the receiver; (4) on application of a creditor of the entity if it is established that irreparable damage will ensue to the unsecured creditors of the domestic entity as a class, generally, unless there is an immediate liquidation of the property of the domestic entity; or (5) on application of a member or director of a nonprofit corporation or cooperative association and it appears the entity is unable to carry out its purposes. (b) A court may order a liquidation and appoint a receiver under Subsection (a) only if: (1) the circumstances demand liquidation to avoid damage to interested persons; (2) all other requirements of law are complied with; and (3) the court determines that all other available legal and equitable remedies, including the appointment of a receiver for specific property of the domestic entity and appointment of a receiver to rehabilitate the domestic entity, are inadequate. (c) If the condition necessitating the appointment of a receiver under this section is remedied, the receivership shall be terminated immediately, the management of the domestic entity shall be restored to its managerial officials, and the receiver shall redeliver to the domestic entity all of its property remaining in receivership. (TBCA 7.06; TLLCA 8.12.A; TNPCA 7.06.A, C.) Sec. 11.406. RECEIVERS: QUALIFICATIONS, POWERS, AND DUTIES. (a) A receiver appointed under this chapter: (1) must be an individual citizen of the United States or an entity authorized to act as receiver; (2) shall give a bond in the amount required by the court and with any sureties as may be required by the court; (3) may sue and be sued in the receiver's name in any court; (4) has the powers and duties provided by other laws applicable to receivers; and (5) has the powers and duties that are stated in the order appointing the receiver or that the appointing court: (A) considers appropriate to accomplish the objectives for which the receiver was appointed; and (B) may increase or diminish at any time during the proceedings. (b) To be appointed a receiver under this chapter, a foreign entity must be registered to transact business in this state. (TBCA 7.07.A (part), B; TLLCA 8.12.A; TNPCA 7.07.A (part), B.) Sec. 11.407. COURT-ORDERED FILING OF CLAIMS. (a) In a proceeding involving a receivership of the property or business of a domestic entity, the court may require all claimants of the domestic entity to file with the clerk of the court or the receiver, in the form provided by the court, proof of their respective claims under oath. (b) A court that orders the filing of claims under Subsection (a) shall: (1) set a date, which may not be earlier than four months after the date of the order, as the last day for the filing of those claims; and (2) prescribe the notice that shall be given to claimants of the date set under Subdivision (1). (c) Before the expiration of the period under Subsection (b) for the filing of claims, a court may extend the period for the filing of claims to a later date. (d) A court may bar a claimant who fails to file a proof of claim during the period authorized by the court from participating in the distribution of the property of the domestic entity unless the claimant presents to the court a justifiable excuse for its delay in filing. A court may not order or effect a discharge of a claim of the claimant described by this subsection. (TBCA 7.07.C; TLLCA 8.12.A; TNPCA 7.07.C.) Sec. 11.408. SUPERVISING COURT; JURISDICTION; AUTHORITY. (a) A court supervising a receivership under this subchapter may, from time to time: (1) make allowances to a receiver or attorney in the proceeding; and (2) direct the payment of a receiver or attorney from the property of the domestic entity that is within the scope of the receivership or the proceeds of any sale or disposition of that property. (b) A court that appoints a receiver under this subchapter for the property or business of a domestic entity has exclusive jurisdiction over the domestic entity and all of its property, regardless of where the property is located. (TBCA 7.07.D, E; TLLCA 8.12.A; TNPCA 7.07.D, E.) Sec. 11.409. ANCILLARY RECEIVERSHIPS OF FOREIGN ENTITIES. (a) Notwithstanding any provision of this code to the contrary, a district court in the county in which the registered office of a foreign entity doing business in this state is located has jurisdiction to appoint an ancillary receiver for the property and business of that entity when the court determines that circumstances exist to require the appointment of an ancillary receiver. (b) A receiver appointed under Subsection (a) serves ancillary to a receiver acting under orders of an out-of-state court that has jurisdiction to appoint a receiver for the entity. (TBCA 7.07.F (part); TLLCA 8.12.A; TNPCA 7.07.F (part).) Sec. 11.410. RECEIVERSHIP FOR ALL PROPERTY AND BUSINESS OF FOREIGN ENTITY. (a) A district court may appoint a receiver for all of the property, in and outside this state, of a foreign entity doing business in this state and its business if the court determines, in accordance with the ordinary usages of equity, that circumstances exist that necessitate the appointment of a receiver even if a receiver has not been appointed by another court. (b) The appointing court shall convert a receivership created under Subsection (a) into an ancillary receivership if the appointing court determines an ancillary receivership is appropriate because a court in another state has ordered a receivership of all property and business of the entity. (TBCA 7.07.F (part); TLLCA 8.12.A; TNPCA 7.07.F (part).) Sec. 11.411. GOVERNING PERSONS AND OWNERS NOT NECESSARY PARTIES DEFENDANT. Governing persons and owners or members of a domestic entity are not necessary parties to an action for a receivership or liquidation of the property and business of a domestic entity unless relief is sought against those persons individually. (TBCA 7.08; TLLCA 8.12.A; TNPCA 7.08.) Sec. 11.412. DECREE OF INVOLUNTARY TERMINATION. In an action to liquidate the property and business of a domestic entity, the court shall enter a decree terminating the entity and the existence of the entity shall cease: (1) when the costs and expenses of the action and all obligations and liabilities of the domestic entity have been paid and discharged or adequately provided for and all of the entity's remaining property has been distributed to its owners and members; or (2) if the entity's property is not sufficient to discharge the costs and other expenses of the action and all obligations and liabilities of the entity, when all the property of the entity has been applied toward their payment. (TBCA 7.09; TLLCA 8.12.A; TNPCA 7.09.) Sec. 11.413. SUPPLEMENTAL PROVISIONS FOR APPLICATION OF PROCEEDS FROM LIQUIDATION OF NONPROFIT CORPORATION. (a) In proceedings under Section 11.405, the property of a nonprofit corporation or the proceeds resulting from a sale, conveyance, or other disposition of its property shall be applied to: (1) pay, satisfy, and discharge all costs and expenses of the court proceedings and all liabilities and obligations of the nonprofit corporation; or (2) make adequate provision for the payment, satisfaction, and discharge of the costs, expenses, liabilities, or obligations described by Subdivision (1). (b) Any property remaining after application is made under this section must be applied and distributed in the manner provided by Section 22.304. (TNPCA 7.06.B.)
CHAPTER 12. ADMINISTRATIVE POWERS
SUBCHAPTER A. SECRETARY OF STATE
Sec. 12.001. AUTHORITY OF SECRETARY OF STATE. (a) The secretary of state may adopt procedural rules for the filing of instruments, including the filing of instruments by electronic or other means, authorized to be filed with the secretary of state under this code. (b) The secretary of state has the power and authority reasonably necessary to enable the secretary to perform the duties imposed on the secretary under this code. (TBCA 9.03; TLLCA 8.03; TNPCA 9.04; TRPA 3.08(b)(15), 10.02(n); TMCLA 7.07.A (part).) Sec. 12.002. INTERROGATORIES BY SECRETARY OF STATE. (a) As necessary and proper for the secretary of state to determine whether a filing entity or a foreign filing entity has complied with this code, the secretary of state may serve by mail interrogatories on the entity or a managerial official. (b) An entity or individual to whom an interrogatory is sent by the secretary of state shall answer the interrogatory before the later of the 31st day after the date the interrogatory is mailed or a date set by the secretary of state. Each answer to an interrogatory must be complete, in writing, and under oath. An interrogatory directed to an individual shall be answered by the individual, and an interrogatory directed to an entity shall be answered by a managerial official. (c) The secretary of state is not required to file any instrument to which an interrogatory relates until the interrogatory is answered as provided by this section and only if the instrument conforms to the requirements of this code. The secretary of state shall certify to the attorney general for action as the attorney general may consider appropriate an interrogatory and answer to the interrogatory that disclose a violation of this code. (d) This section and Sections 12.003 and 12.004 do not apply to domestic real estate investment trusts. (TBCA 9.01; TLLCA 8.01.) Sec. 12.003. INFORMATION DISCLOSED BY INTERROGATORIES. An interrogatory sent by the secretary of state and the answer to the interrogatory are subject to Chapter 552, Government Code. (TBCA 9.02; TLLCA 8.02.) Sec. 12.004. APPEALS FROM SECRETARY OF STATE. (a) If the secretary of state does not approve the filing of a filing instrument, the secretary of state shall, before the 11th day after the date of the delivery of the filing instrument to the secretary of state, notify the person delivering the filing instrument of the disapproval and specifying each reason for the disapproval. The disapproval of a filing instrument by the secretary of state may be appealed only to a district court of Travis County by filing with the court clerk a petition, a copy of the filing instrument sought to be filed, and a copy of any written disapproval by the secretary of state of the filing instrument. The court shall try the appeal de novo and shall sustain the action of the secretary of state or direct the secretary to take any action the court considers to be proper. (b) A final order or judgment entered by the district court under this section in review of any ruling or decision of the secretary of state may be appealed as in other civil actions. (TBCA 9.04.A; TLLCA 8.04; TNPCA 9.05.)
[Sections 12.005-12.150 reserved for expansion]
SUBCHAPTER B. ATTORNEY GENERAL
Sec. 12.151. AUTHORITY OF ATTORNEY GENERAL TO EXAMINE BOOKS AND RECORDS. Each filing entity and foreign filing entity shall permit the attorney general to inspect, examine, and make copies, as the attorney general considers necessary in the performance of a power or duty of the attorney general, of any record of the entity. A record of the entity includes minutes and a book, account, letter, memorandum, document, check, voucher, telegram, constitution, and bylaw. (TMCLA 5.01.) Sec. 12.152. REQUEST TO EXAMINE. To examine the business of a filing entity or foreign filing entity, the attorney general shall make a written request to a managerial official, who shall immediately permit the attorney general to inspect, examine, and make copies of the records of the entity. (TMCLA 5.02, 5.03.) Sec. 12.153. AUTHORITY TO EXAMINE MANAGEMENT OF ENTITY. The attorney general may investigate the organization, conduct, and management of a filing entity or foreign filing entity and determine if the entity has been or is engaged in acts or conduct in violation of: (1) its governing documents; or (2) any law of this state. (TMCLA 5.03.) Sec. 12.154. AUTHORITY TO DISCLOSE INFORMATION. Information held by the attorney general and derived in the course of an examination of an entity's records or documents is not public information, is not subject to Chapter 552, Government Code, and may not be disclosed except: (1) in the course of an administrative or judicial proceeding in which the state is a party; (2) in a suit by the state to: (A) revoke the registration of the foreign filing entity or terminate the certificate of formation of the filing entity; or (B) collect penalties for a violation of the law of this state; or (3) to provide information to any officer of this state charged with the enforcement of its laws. (TMCLA 5.04.) Sec. 12.155. FORFEITURE OF BUSINESS PRIVILEGES. A foreign filing entity or a filing entity that fails or refuses to permit the attorney general to examine or make copies of a record, without regard to whether the record is located in this or another state, forfeits the right of the entity to do business in this state, and the entity's registration or certificate of formation shall be revoked or terminated. (TMCLA 5.05.A.) Sec. 12.156. CRIMINAL PENALTY. (a) A managerial official or other individual having the authority to manage the affairs of a filing entity or foreign filing entity commits an offense if the official or individual fails or refuses to permit the attorney general to make an investigation of the entity or to examine or to make copies of a record of the entity. (b) An offense under this section is a Class B misdemeanor. (TMCLA 5.05.B.)
[Sections 12.157-12.200 reserved for expansion]
SUBCHAPTER C. ENFORCEMENT LIEN
Sec. 12.201. LIEN FOR LAW VIOLATIONS. (a) If a filing entity or foreign filing entity violates a law of this state, including the law against trusts, monopolies, and conspiracies, or combinations or contracts in restraint of trade, for the violation of which a fine, penalties, or forfeiture is provided, all of the entity's property in this state at the time of the violation or that after the violation comes into this state is, because of the violation, liable for any fine or penalty under this chapter and for costs of suit and costs of collection. (b) The state has a lien on all property of a filing entity or foreign filing entity in this state on the date a suit is instituted by or under the direction of the attorney general in a court of this state for the purpose of forfeiting the certificate of formation or revoking the registration of the entity or for the collection of a fine or penalty due to the state. (c) The filing of a suit for a fine, penalties, or forfeiture is notice of the lien. (d) In addition to the property subjected to the lien under Subsection (b), the lien applies to any property that comes into the possession of a receiver appointed under Subchapter D. (TMCLA 5.07, 5.08, 5.11 (part).)
[Sections 12.202-12.250 reserved for expansion]
SUBCHAPTER D. ENFORCEMENT PROCEEDINGS
Sec. 12.251. RECEIVER. In a suit filed by this state against a filing entity or foreign filing entity for the termination of the entity's certificate of formation or registration or for a fine or penalty, the court in this state in which the suit is pending: (1) shall appoint a receiver for the property and business of the entity in this state or that subsequently comes into this state during the receivership if the filing entity or foreign filing entity commences the process of winding up its business in this or another state or a judgment is rendered against it in this or another state for the termination of the entity's certificate of formation or registration; and (2) may appoint a receiver for the entity if the interest of the state requires the appointment. (TMCLA 5.10.) Sec. 12.252. FORECLOSURE. (a) The attorney general may bring suit to foreclose a lien created by this chapter. (b) If a filing entity or a foreign filing entity subject to this code has commenced the winding up process or has had the entity's certificate of formation or registration terminated by a judgment, citation in a suit for foreclosure may be served on any person in this state who acted and was acting as agent of the entity in this state when the entity commenced the winding up process or the entity's certificate of formation or registration was terminated. (TMCLA 5.12.) Sec. 12.253. ACTION AGAINST INSOLVENT ENTITY. When the attorney general is convinced that a filing entity or foreign filing entity is insolvent, the attorney general shall institute quo warranto or other appropriate proceedings to terminate the certificate of formation or registration of the filing entity or foreign filing entity that is insolvent. (TMCLA 5.14.) Sec. 12.254. SUITS BY DISTRICT OR COUNTY ATTORNEY. A district or county attorney shall bring and prosecute a proceeding under Section 12.252 or 12.253 when directed to do so by the attorney general. (TMCLA 5.12 (part), 5.15.) Sec. 12.255. PERMISSION TO SUE. Before a petition may be filed by the attorney general or by a district or county attorney in a suit authorized by Section 12.252 or 12.253, leave must be granted by the judge of the court in which the proceeding is to be filed. (TMCLA 5.17.) Sec. 12.256. EXAMINATION AND NOTICE. (a) The judge of a court in which a proceeding under Section 12.252 or 12.253 is to be filed shall carefully examine the petition before granting leave to sue. The judge may also require an examination into the facts. If it appears with reasonable certainty from the petition or from the petition and facts that there is a prima facie showing for the relief sought, the judge may grant leave to file. (b) On an application for the appointment of a receiver, the entity proceeded against is entitled to 10 days' notice before the day set for the hearing. (TMCLA 5.18.) Sec. 12.257. DISMISSAL OF ACTION. (a) A suit authorized by Section 12.253 or 12.258 may not be filed or, if filed, shall be dismissed if the entity, through its owners or members, reduces its indebtedness so that it is not insolvent. (b) The respondent shall pay the costs of a dismissed suit under this section. (TMCLA 5.16.) Sec. 12.258. LIQUIDATION OF INSOLVENT ENTITY. (a) A court hearing a proceeding under Section 12.253 against an insolvent entity may, after the entity has been shown to be insolvent, appoint one or more receivers for the entity and its property. The receiver may settle the affairs of the entity, collect outstanding debts, and divide the money and property belonging to the entity among its owners after paying the debts of the entity and all expenses incidental to the judicial proceedings and receivership. (b) The court may continue the existence of the entity for three years and for additional reasonable time as necessary to accomplish the purposes of this subchapter. (TMCLA 5.15.) Sec. 12.259. EXTRAORDINARY REMEDIES; BOND. The state has a right to a writ of attachment, garnishment, sequestration, or injunction, without bond, to aid in the enforcement of the state's rights created by this chapter. (TMCLA 5.11 (part).) Sec. 12.260. ABATEMENT OF SUIT. An action or cause of action for a fine, penalty, or forfeiture that this state has or may have against a filing entity or foreign filing entity does not abate because the entity dissolves, voluntarily or otherwise, or the entity's certificate of formation is terminated or the entity's registration is revoked. (TMCLA 5.09.) Sec. 12.261. PROVISIONS CUMULATIVE. Each right or remedy provided by this chapter is cumulative and does not affect any other right or remedy for the enforcement, payment, or collection of a fine, forfeiture, or penalty or any other means provided by law for securing or preserving testimony or inquiring into the rights or privileges of an entity. (TMCLA 5.06, 5.13, 5.19.)
TITLE 2. CORPORATIONS
CHAPTER 20. GENERAL PROVISIONS
Sec. 20.001. REQUIREMENT THAT FILING INSTRUMENT BE SIGNED BY OFFICER. Unless otherwise provided by this title, a filing instrument of a corporation must be signed by an officer of the corporation. (TBCA 2.10.B (part), 2.12.C(3) (part), 2.13.E (part), 2.22.E(2) (part), 4.10.B (part), 4.11.B (part), 4.12.B (part); TNPCA 4.03 (part), 4.06.D (part), 6.05 (part).) Sec. 20.002. ULTRA VIRES ACTS. (a) Lack of capacity of a corporation may not be the basis of any claim or defense at law or in equity. (b) An act of a corporation or a transfer of property by or to a corporation is not invalid because the act or transfer was: (1) beyond the scope of the purpose or purposes of the corporation as expressed in the corporation's certificate of formation; or (2) inconsistent with a limitation on the authority of an officer or director to exercise a statutory power of the corporation, as that limitation is expressed in the corporation's certificate of formation. (c) The fact that an act or transfer is beyond the scope of the expressed purpose or purposes of the corporation or is inconsistent with an expressed limitation on the authority of an officer or director may be asserted in a proceeding: (1) by a shareholder or member against the corporation to enjoin the performance of an act or the transfer of property by or to the corporation; (2) by the corporation, acting directly or through a receiver, trustee, or other legal representative, or through members in a representative suit, against an officer or director or former officer or director of the corporation for exceeding that person's authority; or (3) by the attorney general to: (A) terminate the corporation; (B) enjoin the corporation from performing an unauthorized act; or (C) enforce divestment of real property acquired or held contrary to the laws of this state. (d) If the unauthorized act or transfer sought to be enjoined under Subsection (c)(1) is being or is to be performed or made under a contract to which the corporation is a party and if each party to the contract is a party to the proceeding, the court may set aside and enjoin the performance of the contract. The court may award to the corporation or to another party to the contract, as appropriate, compensation for loss or damage resulting from the action of the court in setting aside and enjoining the performance of the contract, excluding loss of anticipated profits. (TBCA 2.04; TNPCA 2.03.)
CHAPTER 21. FOR-PROFIT CORPORATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 21.001. APPLICABILITY OF CHAPTER. This chapter applies only to a: (1) domestic for-profit corporation formed under this code; and (2) foreign for-profit corporation that is transacting business in this state, regardless of whether the foreign corporation is registered to transact business in this state. (New.) Sec. 21.002. DEFINITIONS. In this chapter: (1) "Authorized share" means a share of any class the corporation is authorized to issue. (2) "Board of directors" includes each person who is authorized to perform the functions of the board of directors under a shareholders' agreement as authorized by this chapter. (3) "Cancel," with respect to an authorized share of a corporation, means the restoration of an issued share to the status of an authorized but unissued share. (4) "Consuming assets corporation" means a corporation that: (A) is engaged in the business of exploiting assets subject to depletion or amortization; (B) states in its certificate of formation that it is a consuming assets corporation; (C) includes the phrase "a consuming assets corporation" as part of its official corporate name and gives the phrase equal prominence with the rest of the corporate name on the financial statements and certificates of ownership of the corporation; and (D) includes in each of the certificates of ownership of the corporation the sentence, "This corporation is permitted by law to pay dividends out of reserves that may impair its stated capital." (5) "Corporation" or "domestic corporation" means a domestic for-profit corporation subject to this chapter. (6)(A) "Distribution" means a transfer of property, including cash, or issuance of debt, by a corporation to its shareholders in the form of: (i) a dividend on any class or series of its outstanding shares; (ii) a purchase or redemption, directly or indirectly, of any of its own shares; or (iii) a payment by the corporation in liquidation of all or a portion of its assets. (B) The term does not include: (i) a split-up or division of the issued shares of a class of a corporation into a larger number of shares within the same class that does not increase the stated capital of the corporation; or (ii) a transfer of the corporation's own shares or rights to acquire its own shares. (7) "Foreign corporation" means a for-profit corporation formed under the laws of a jurisdiction other than this state. (8) "Investment Company Act" means the Investment Company Act of 1940 (15 U.S.C. Section 80a-1 et seq.), as amended. (9) "Net assets" means the amount by which the total assets of a corporation exceed the total debts of the corporation. (10) "Share dividend" means a dividend by a corporation that is payable in authorized but unissued shares or treasury shares of the corporation. The term does not include: (A) an amendment to the corporation's certificate of formation to change the shares of a class or series, with or without par value, into the same or a different number of shares of the same or a different class or series, with or without par value; or (B) a split-up or division of the issued shares of a class of a corporation into a larger number of shares within the same class that does not increase the stated capital of the corporation. (11) "Stated capital" means the sum of: (A) the par value of all shares of the corporation with par value that have been issued; (B) the consideration, as expressed in terms of United States dollars, determined by the corporation in the manner provided by Section 21.160 for all shares of the corporation without par value that have been issued, except that part, but not all, of the consideration that: (i) has been actually received; and (ii) the board, by resolution adopted not later than the 60th day after the date of issuance of those shares, has allocated to surplus; and (C) an amount not included in Paragraphs (A) and (B) that has been transferred to stated capital of the corporation, on the payment of a share dividend or on adoption by the board of directors of a resolution directing that all or part of surplus be transferred to stated capital, minus each reduction made as permitted by law. (12) "Surplus" means the amount by which the net assets of a corporation exceed the stated capital of the corporation. (13) "Treasury shares" means shares of a corporation that have been issued, and subsequently acquired by the corporation, that belong to the corporation and that have not been canceled. The term does not include shares held by a corporation in a fiduciary capacity, whether directly or through a trust or similar arrangement. (TBCA 1.02.A(3), (4), (7), (11), (13), (14), (17), (19), (21), (24), (27), (28) (part), 2.38-2.)
[Sections 21.003-21.050 reserved for expansion]
SUBCHAPTER B. FORMATION AND GOVERNING DOCUMENTS
Sec. 21.051. NO PROPERTY RIGHT IN CERTIFICATE OF FORMATION. A shareholder of a corporation does not have a vested property right resulting from the certificate of formation, including a provision in the certificate of formation relating to the management, control, capital structure, dividend entitlement, purpose, or duration of the corporation. (TBCA 4.01.B.) Sec. 21.052. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF FORMATION. (a) To adopt an amendment to the certificate of formation of a corporation as provided by Subchapter B, Chapter 3, the board of directors of the corporation shall: (1) adopt a resolution stating the proposed amendment; and (2) follow the procedures prescribed by Sections 21.053-21.055. (b) The resolution may incorporate the proposed amendment in a restated certificate of formation that complies with Section 3.059. (c) The certificate of amendment must be filed in accordance with Chapter 4 and takes effect as provided by Subchapter B, Chapter 3. (TBCA 4.02.A (part).) Sec. 21.053. ADOPTION OF AMENDMENT BY BOARD OF DIRECTORS. If a corporation does not have any issued and outstanding shares, the board of directors may adopt a proposed amendment to the corporation's certificate of formation by resolution without shareholder approval. (TBCA 4.02.A(1) (part).) Sec. 21.054. ADOPTION OF AMENDMENT BY SHAREHOLDERS. If a corporation has issued and outstanding shares: (1) a resolution described by Section 21.052 must also direct that the proposed amendment be submitted to a vote of the shareholders at a meeting; and (2) the shareholders must approve the proposed amendment in the manner provided by Section 21.055. (TBCA 4.02.A (part).) Sec. 21.055. NOTICE OF AND MEETING TO CONSIDER PROPOSED AMENDMENT. (a) Each shareholder of record entitled to vote shall be given written notice containing the proposed amendment or a summary of the changes to be effected within the time and in the manner provided by this code for giving notice of meetings to shareholders. The proposed amendment or summary may be included in the notice required to be provided for an annual meeting. (b) At the meeting, the proposed amendment shall be adopted only on receiving the affirmative vote of shareholders entitled to vote required by Section 21.364. (c) An unlimited number of amendments may be submitted for adoption by the shareholders at a meeting. (TBCA 4.02.A (part), B.) Sec. 21.056. RESTATED CERTIFICATE OF FORMATION. (a) A corporation may adopt a restated certificate of formation as provided by Subchapter B, Chapter 3, by following the same procedures to amend its certificate of formation under Sections 21.052-21.055, except that shareholder approval is not required if an amendment is not adopted. (b) The restated certificate of formation shall be filed in accordance with Chapter 4 and takes effect as provided by Subchapter B, Chapter 3. (TBCA 4.07.A (part), D (part).) Sec. 21.057. BYLAWS. (a) The board of directors of a corporation shall adopt initial bylaws. (b) The bylaws may contain provisions for the regulation and management of the affairs of the corporation that are consistent with law and the corporation's certificate of formation. (c) A corporation's board of directors may amend or repeal bylaws or adopt new bylaws unless: (1) the corporation's certificate of formation or this code wholly or partly reserves the power exclusively to the corporation's shareholders; or (2) in amending, repealing, or adopting a bylaw, the shareholders expressly provide that the board of directors may not amend, repeal, or readopt that bylaw. (TBCA 2.23.A, B.) Sec. 21.058. DUAL AUTHORITY. Unless the certificate of formation or a bylaw adopted by the shareholders provides otherwise as to all or a part of a corporation's bylaws, a corporation's shareholders may amend, repeal, or adopt the corporation's bylaws regardless of whether the bylaws may also be amended, repealed, or adopted by the corporation's board of directors. (TBCA 2.23.C.) Sec. 21.059. ORGANIZATION MEETING. (a) This section does not apply to a corporation created as a result of a conversion or merger the plan of which states the bylaws and names the officers of the corporation. (b) After the filing of a certificate of formation takes effect, an organization meeting shall be held at the call of the majority of the initial board of directors or the persons named in the certificate of formation under Section 3.007(a)(4) for the purpose of adopting bylaws, electing officers, and transacting other business. (c) Not later than the third day before the date of the meeting, the directors or other persons calling the meeting shall send notice of the time and place of the meeting to each other director or person named in the certificate of formation. (TBCA 3.06.)
[Sections 21.060-21.100 reserved for expansion]
SUBCHAPTER C. SHAREHOLDERS' AGREEMENTS
Sec. 21.101. SHAREHOLDERS' AGREEMENT. (a) The shareholders of a corporation may enter into an agreement that: (1) restricts the discretion or powers of the board of directors; (2) eliminates the board of directors and authorizes the business and affairs of the corporation to be managed, wholly or partly, by one or more of its shareholders or other persons; (3) establishes the individuals who shall serve as directors or officers of the corporation; (4) determines the term of office, manner of selection or removal, or terms or conditions of employment of a director, officer, or other employee of the corporation, regardless of the length of employment; (5) governs the authorization or making of distributions whether in proportion to ownership of shares, subject to Section 21.303; (6) determines the manner in which profits and losses will be apportioned; (7) governs, in general or with regard to specific matters, the exercise or division of voting power by and between the shareholders, directors, or other persons, including use of disproportionate voting rights or director proxies; (8) establishes the terms of an agreement for the transfer or use of property or for the provision of services between the corporation and another person, including a shareholder, director, officer, or employee of the corporation; (9) authorizes arbitration or grants authority to a shareholder or other person to resolve any issue about which there is a deadlock among the directors, shareholders, or other persons authorized to manage the corporation; (10) requires winding up and termination of the corporation at the request of one or more shareholders or on the occurrence of a specified event or contingency, in which case the winding up and termination of the corporation will proceed as if all of the shareholders had consented in writing to the winding up and termination as provided by Subchapter K; or (11) otherwise governs the exercise of corporate powers, the management of the business and affairs of the corporation, or the relationship among the shareholders, the directors, and the corporation as if the corporation were a partnership or in a manner that would otherwise be appropriate only among partners and not contrary to public policy. (b) A shareholders' agreement authorized by this section must be: (1) contained in: (A) the certificate of formation or bylaws if approved by all of the shareholders at the time of the agreement; or (B) a written agreement that is: (i) signed by all of the shareholders at the time of the agreement; and (ii) made known to the corporation; and (2) amended only by all of the shareholders at the time of the amendment, unless the agreement provides otherwise. (TBCA 2.30-1.A, B (part).) Sec. 21.102. TERM OF AGREEMENT. A shareholders' agreement under this subchapter is valid for 10 years, unless the agreement provides otherwise. (TBCA 2.30-1.B (part).) Sec. 21.103. DISCLOSURE OF AGREEMENT; RECALL OF CERTAIN CERTIFICATES. (a) The existence of an agreement authorized by this subchapter shall be noted conspicuously on the front or back of each certificate for outstanding shares or on the information statement required for uncertificated shares by Section 3.205. (b) The disclosure required by this section must include the sentence, "These shares are subject to the provisions of a shareholders' agreement that may provide for management of the corporation in a manner different than in other corporations and may subject a shareholder to certain obligations or liabilities not otherwise imposed on shareholders in other corporations." (c) A corporation that has outstanding shares represented by certificates at the time the shareholders of the corporation enter into an agreement under this subchapter shall recall the outstanding certificates and issue substitute certificates that comply with this subchapter. (d) The failure to note the existence of the agreement on the certificate or information statement does not affect the validity of the agreement or an action taken pursuant to the agreement. (TBCA 2.30-1.C.) Sec. 21.104. EFFECT OF SHAREHOLDERS' AGREEMENT. A shareholders' agreement that complies with this subchapter is effective among the shareholders and between the shareholders and the corporation even if the terms of the agreement are inconsistent with this code. (TBCA 2.30-1.A (part).) Sec. 21.105. RIGHT OF RESCISSION; KNOWLEDGE OF PURCHASER OF SHARES. (a) A purchaser of shares who does not have knowledge at the time of purchase of the existence of a shareholders' agreement authorized by this subchapter is entitled to rescind the purchase. (b) A purchaser is considered to have knowledge of the existence of the shareholders' agreement for purposes of this section if: (1) the existence of the agreement is noted on the certificate or information statement for the shares as required by Section 21.103; and (2) with respect to shares that are not represented by a certificate, the information statement noting existence of the agreement is delivered to the purchaser not later than the time the shares are purchased. (c) An action to enforce the right of rescission authorized by this section must be commenced not later than the earlier of: (1) the 90th day after the date the existence of the shareholder agreement is discovered; or (2) the second anniversary of the purchase date of the shares. (TBCA 2.30-1.D.) Sec. 21.106. AGREEMENT LIMITING AUTHORITY OF AND SUPPLANTING BOARD OF DIRECTORS; LIABILITY. (a) A shareholders' agreement authorized by this subchapter that limits the discretion or powers of the board of directors or supplants the board of directors relieves the directors of, and imposes on a person in whom the discretion or powers of the board of directors or the management of the business and affairs of the corporation is vested, liability for an act or omission of the person in accordance with Subsection (b). (b) A person on whom liability for an act or omission is imposed under this section is liable in the same manner and to the same extent as a director on whom liability for an act or omission is imposed by this code or other law. (TBCA 2.30-1.F.) Sec. 21.107. LIABILITY OF SHAREHOLDER. The existence of or a performance under a shareholders' agreement authorized by this subchapter is not a ground for imposing personal liability on a shareholder for an act or obligation of the corporation by disregarding the separate existence of the corporation or otherwise, even if the agreement or a performance under the agreement: (1) treats the corporation as if the corporation were a partnership or in a manner that otherwise is appropriate only among partners; (2) results in the corporation being considered a partnership for purposes of taxation; or (3) results in failure to observe the corporate formalities otherwise applicable to the matters governed by the agreement. (TBCA 2.30-1.G.) Sec. 21.108. PERSONS ACTING IN PLACE OF SHAREHOLDERS. An organizer or a subscriber for shares may act as a shareholder with respect to a shareholders' agreement authorized by this subchapter if no shares have been issued when the agreement is signed. (TBCA 2.30-1.H.) Sec. 21.109. AGREEMENT NOT EFFECTIVE. (a) A shareholders' agreement authorized by this subchapter ceases to be effective when shares of the corporation are: (1) listed on a national securities exchange or similar system; (2) quoted on an interdealer quotation system of a national securities association or successor system; or (3) regularly traded in a market maintained by one or more members of a national or affiliated securities association. (b) If a corporation does not have a board of directors and an agreement of the shareholders of the corporation entered into under this subchapter ceases to be effective, a board of directors shall be instituted or reinstated to govern the corporation in the manner provided by Section 21.710(c). (c) If a shareholders' agreement that ceases to be effective is contained in or referred to by the certificate of formation or bylaws of a corporation, the board of directors of the corporation may adopt an amendment to the certificate of formation or bylaws, without shareholder action, to delete the agreement and any references to the agreement. (TBCA 2.30-1.E.)
[Sections 21.110-21.150 reserved for expansion]
SUBCHAPTER D. SHARES, OPTIONS, AND CONVERTIBLE SECURITIES
Sec. 21.151. NUMBER OF AUTHORIZED SHARES. A corporation may issue the number of authorized shares stated in the corporation's certificate of formation. (TBCA 2.12.A (part).) Sec. 21.152. CLASSES AND SERIES OF SHARES. (a) A corporation's certificate of formation may divide the corporation's authorized shares into one or more classes and may divide one or more classes into one or more series. The certificate of formation must designate each class and series of authorized shares to distinguish that class and series from any other class or series. (b) Shares of the same class must be of the same par value or be without par value, as stated in the certificate of formation. (c) Shares of the same class must be identical in all respects unless the shares have been divided into one or more series. If the shares of a class have been divided into one or more series, the shares may vary between series, but all shares of the same series will be identical in all respects. (TBCA 2.12.A (part).) Sec. 21.153. DESIGNATIONS, PREFERENCES, LIMITATIONS, AND RIGHTS OF A CLASS OR SERIES. (a) Each class or series of authorized shares of a corporation must have the designations, preferences, limitations, and relative rights, including voting rights, stated in the corporation's certificate of formation. (b) The certificate of formation may limit or deny the voting rights of, or provide special voting rights for, the shares of a class or series or the shares of a class or series held by a person or class of persons to the extent the limitation, denial, or provision is not inconsistent with this code. (c) A designation, preference, limitation, or relative right, including a voting right, of a class or series of shares of a corporation may be made dependent on facts not contained in the certificate of formation, including future acts of the corporation, if the manner in which those facts will operate on the designation, preference, limitation, or right is clearly and expressly stated in the certificate of formation. (TBCA 2.12.A (part).) Sec. 21.154. CERTAIN OPTIONAL CHARACTERISTICS OF SHARES. (a) Subject to Section 21.153, if authorized by the corporation's certificate of formation, a corporation may issue shares that: (1) are redeemable, at the option of the corporation, shareholder, or other person or on the occurrence of a designated event, subject to Sections 21.303 and 21.304; (2) entitle the holders of the shares to cumulative, noncumulative, or partially cumulative distributions; (3) have preferences over any or all other classes or series of shares with respect to payment of distributions; (4) have preferences over any or all other classes or series of shares with respect to the assets of the corporation on the voluntary or involuntary winding up and termination of the corporation; (5) are exchangeable, at the option of the corporation, shareholder, or other person or on the occurrence of a designated event, for shares, obligations, indebtedness, evidence of ownership, rights to purchase securities of the corporation or one or more other entities, or other property or for a combination of those rights, assets, or obligations, subject to Section 21.303; and (6) are convertible into shares of any other class or series, at the option of the corporation, shareholder, or other person or on the occurrence of a designated event. (b) Shares without par value may not be converted into shares with par value unless: (1) at the time of conversion, the part of the corporation's stated capital represented by the shares without par value is at least equal to the aggregate par value of the shares to be converted; or (2) the amount of any deficiency computed under Subdivision (1) is transferred from surplus to stated capital. (TBCA 2.12.B.) Sec. 21.155. SERIES OF SHARES ESTABLISHED BY BOARD OF DIRECTORS. (a) If expressly authorized by the corporation's certificate of formation and subject to the certificate of formation, the board of directors of a corporation may establish series of unissued shares of any class by setting and determining the designations, preferences, limitations, and relative rights, including voting rights, of the shares of the series to be established to the same extent that the designations, preferences, limitations, or relative rights could be stated if fully specified in the certificate of formation. (b) To establish a series if authorized by the certificate of formation, the board of directors must adopt a resolution specifying the designations, preferences, limitations, and relative rights, including voting rights, of the series to be established or specifying any designation, preference, limitation, or relative right that is not set and determined by the certificate of formation. (c) If the certificate of formation does not expressly restrict the board of directors from increasing or decreasing the number of unissued shares of a series to be established under Subsection (a), the board of directors may increase or decrease the number of shares in each series to be established, except that the board of directors may not decrease the number of shares in a particular series to a number that is less than the number of shares in that series that are issued at the time of the decrease. (d) To increase or decrease the number of shares of a series under Subsection (c), the board of directors must adopt a resolution setting and determining the new number of shares of each series in which the number of shares is increased or decreased. If the number of shares of a series is decreased, the shares by which the series is decreased will resume the status of authorized but unissued shares of the class of shares from which the series was established, unless otherwise provided by the certificate of formation or the terms of the class or series. (e) If no shares of a series established by board resolution under Subsection (b) are outstanding because no shares of that series have been issued or no issued shares of that series remain outstanding, the board of directors by resolution may delete the series from the certificate of formation and delete any reference to the series contained in the certificate of formation. Unless otherwise provided by the certificate of formation, the shares of any series deleted from the certificate of formation under this section shall resume the status of authorized but unissued shares of the class of shares from which the series was established. (f) If no shares of a series established by resolution of the board of directors under Subsection (b) are outstanding because no shares of that series have been issued, the board of directors may amend the designations, preferences, limitations, and relative rights, including voting rights, of the series or amend any designation, preference, limitation, or relative right that is not set and determined by the certificate of formation. (TBCA 2.13.A, B, C; New.) Sec. 21.156. ACTIONS WITH RESPECT TO SERIES OF SHARES. (a) To effect an action authorized under Section 21.155, the corporation must file with the secretary of state a statement that contains: (1) the name of the corporation; (2) if the statement relates to the establishment of a series of shares, a copy of the resolution establishing and designating the series and setting and determining the designations, preferences, limitations, and relative rights of the series; (3) if the statement relates to an increase or decrease in the number of shares of a series, a copy of the resolution setting and determining the new number of shares of each series in which the number of shares is increased or decreased; (4) if the statement relates to the deletion of a series of shares and all references to the series from the certificate of formation, a copy of the resolution deleting the series and all references to the series from the certificate of formation; (5) if the statement relates to the amendment of designations, preferences, limitations, or relative rights of shares of a series that was previously established by resolution of the board of directors, a copy of the resolution in which the amendment is specified; (6) the date of the adoption of the resolution; and (7) a statement that the resolution was adopted by all necessary action on the part of the corporation. (b) On the filing of a statement described by Subsection (a), the following resolutions will become an amendment of the certificate of formation, as appropriate: (1) the resolution establishing and designating the series and setting and determining the designations, preferences, limitations, and relative rights of the series; (2) the resolution setting the new number of shares of each series in which the number of shares is increased or decreased; (3) the resolution deleting a series and all references to the series from the certificate of formation; or (4) the resolution amending the designations, preferences, limitations, and relative rights of a series. (c) An amendment of the certificate of formation under this section is not subject to the procedure to amend the certificate of formation contained in Subchapter B. (TBCA 2.13.D, F; New.) Sec. 21.157. ISSUANCE OF SHARES. (a) Except as provided by Section 21.158, a corporation may issue shares for consideration if authorized by the board of directors of the corporation. (b) Shares may not be issued until the consideration, determined in accordance with this subchapter, has been paid or delivered as required in connection with the authorization of the shares. When the consideration is paid or delivered: (1) the shares are considered to be issued; (2) the subscriber or other person entitled to receive the shares is a shareholder with respect to the shares; and (3) the shares are considered fully paid and nonassessable. (TBCA 2.16.A (part).) Sec. 21.158. ISSUANCE OF SHARES UNDER PLAN OF MERGER OR CONVERSION. (a) A converted corporation under a plan of conversion or a corporation created by a plan of merger may issue shares for consideration if authorized by the plan of conversion or plan of merger, as appropriate. (b) A corporation may issue shares in the manner provided by and for consideration specified under a plan of merger or plan of conversion. (TBCA 2.16.A (part).) Sec. 21.159. TYPES OF CONSIDERATION FOR SHARES. Shares with or without par value may be issued for the following types of consideration: (1) a tangible or intangible benefit to the corporation; (2) cash; (3) a promissory note; (4) services performed or a contract for services to be performed; (5) a security of the corporation or any other organization; and (6) any other property of any kind or nature. (TBCA 2.16.A (part).) Sec. 21.160. DETERMINATION OF CONSIDERATION FOR SHARES. (a) Subject to Subsection (b), consideration to be received for shares must be determined: (1) by the board of directors; (2) by a plan of conversion, if the shares are to be issued by a converted corporation under the plan; or (3) by a plan of merger, if the shares are to be issued under the plan by a corporation created under the plan. (b) If the corporation's certificate of formation reserves to the shareholders the right to determine the consideration to be received for shares without par value, the shareholders shall determine the consideration for those shares before the shares are issued. The board of directors may not determine the consideration for shares under this subsection. (c) A corporation may dispose of treasury shares for consideration that may be determined by the board of directors. (TBCA 2.15.A (part), B (part), C.) Sec. 21.161. AMOUNT OF CONSIDERATION FOR ISSUANCE OF CERTAIN SHARES. (a) Consideration to be received by a corporation for the issuance of shares with par value may not be less than the par value of the shares. (b) The part of the surplus of a corporation that is transferred to stated capital on the issuance of shares as a share distribution is considered to be the consideration for the issuance of those shares. (c) The consideration received by a corporation for the issuance of shares on the conversion or exchange of its indebtedness or shares is: (1) the principal of, and accrued interest on, the indebtedness exchanged or converted, or the stated capital on the issuance of the shares; (2) the part of surplus, if any, transferred to stated capital on the issuance of the shares; and (3) any additional consideration paid to the corporation on the issuance of the shares. (d) The consideration received by a corporation for the issuance of shares on the exercise of rights or options is: (1) any consideration received by the corporation for the rights or options; and (2) any consideration received by the corporation for the issuance of shares on the exercise of the rights or options. (TBCA 2.15.A (part), D, E, F.) Sec. 21.162. VALUE AND SUFFICIENCY OF CONSIDERATION. In the absence of fraud in the transaction, the judgment of the board of directors, the shareholders, or the party approving the plan of conversion or the plan of merger, as appropriate, is conclusive in determining the value and sufficiency of the consideration received for the shares. (TBCA 2.16.B.) Sec. 21.163. ISSUANCE AND DISPOSITION OF FRACTIONAL SHARES OR SCRIP. (a) A corporation may: (1) issue fractions of a share, either certificated or uncertificated; (2) arrange for the disposition of fractional interests by persons entitled to the interests; (3) pay cash for the fair value of fractions of a share determined when the shareholders entitled to receive the fractions are determined; or (4) subject to Subsection (b), issue scrip in registered or bearer form that entitles the holder to receive a certificate for a full share or an uncertificated full share on the surrender of the scrip aggregating a full share. (b) The board of directors may issue scrip: (1) on the condition that the scrip will become void if not exchanged for certificated or uncertificated full shares before a specified date; (2) on the condition that the shares for which the scrip is exchangeable may be sold by the corporation and the proceeds from the sale of the shares may be distributed to the holders of scrip; or (3) subject to any other condition the board of directors may determine advisable. (TBCA 2.20 (part).) Sec. 21.164. RIGHTS OF HOLDERS OF FRACTIONAL SHARES OR SCRIP. (a) A holder of a certificated or uncertificated fractional share is entitled to exercise voting rights, receive distributions, and make a claim with respect to the assets of the corporation in the event of winding up and termination. (b) A holder of a certificate for scrip is not entitled to exercise voting rights, receive distributions, or make a claim with respect to the assets of the corporation in the event of winding up and termination unless the scrip provides for those rights. (TBCA 2.20 (part).) Sec. 21.165. SUBSCRIPTIONS. (a) A corporation may accept a subscription by notifying the subscriber in writing. (b) A subscription to purchase shares in a corporation in the process of being formed is irrevocable for six months if the subscription is in writing and signed by the subscriber, unless the subscription provides for a longer or shorter period or all of the other subscribers agree to the revocation of the subscription. (c) A written subscription entered into after the corporation is formed is a contract between the subscriber and the corporation. (TBCA 2.14.) Sec. 21.166. PREFORMATION SUBSCRIPTION. (a) The corporation may determine the payment terms of a preformation subscription unless the payment terms are specified by the subscription. The payment terms may authorize payment in full on acceptance or by installments. (b) Unless the subscription provides otherwise, a corporation shall make calls placed to all subscribers of similar interests for payment on preformation subscriptions uniform as far as practicable. (c) After the corporation is formed, if a subscriber fails to pay any installment or call when due, a corporation may: (1) collect in the same manner as any other debt the amount due on any unpaid preformation subscription; or (2) forfeit the subscription if the installment or call remains unpaid for 20 days after written notice to the subscriber. (d) Although the forfeiture of a subscription terminates all the rights and obligations of the subscriber, the corporation may retain any amount previously paid on the subscription. (TBCA 2.14.D (part).) Sec. 21.167. COMMITMENT TO PURCHASE SHARES. (a) A person who contemplates the acquisition of shares in a corporation may commit to act in a specified manner with respect to the shares after the acquisition, including the voting of the shares or the retention or disposition of the shares. To be binding, the commitment must be in writing and be signed by the person acquiring the shares. (b) A written commitment entered into under Subsection (a) is a contract between the shareholder and the corporation. (New.) Sec. 21.168. STOCK RIGHTS, OPTIONS, AND CONVERTIBLE INDEBTEDNESS. (a) Except as provided by the corporation's certificate of formation and regardless of whether done in connection with the issuance and sale of any other share or security of the corporation, a corporation may create and issue: (1) rights or options that entitle the holders to purchase or receive from the corporation shares of any class or series or other securities; and (2) indebtedness convertible into shares of any class or series of the corporation or other securities of the corporation. (b) A right, option, or indebtedness described by this section shall be evidenced in the manner approved by the board of directors. (c) Subject to the certificate of formation, a right or option described by this section must state the terms on which, the time within which, and any consideration for which the shares may be purchased or received from the corporation on the exercise of the right or option. (d) Subject to the certificate of formation, convertible indebtedness described by this section must state the terms and conditions on which, the time within which, and the conversion ratio at which the indebtedness may be converted into shares. (TBCA 2.14-1 (part).) Sec. 21.169. TERMS AND CONDITIONS OF RIGHTS AND OPTIONS. (a) The terms and conditions of rights or options may include restrictions or conditions that: (1) prohibit or limit the exercise, transfer, or receipt of the rights or options by certain persons or classes of persons, including: (A) a person who beneficially owns or offers to acquire a specified number or percentage of the outstanding common shares, voting power, or other securities of the corporation; or (B) a transferee of a person described by Paragraph (A); or (2) invalidate or void the rights or options held by a person or transferee described by Subdivision (1). (b) Rights or options created or issued before the effective date of this code that comply with this section and are not in conflict with other provisions of this code are ratified. (c) Unless otherwise provided under the terms of rights or options or the agreement or plan under which the rights or options are issued, the authority to grant, amend, redeem, extend, or replace the rights or options on behalf of a corporation is vested exclusively in the board of directors of the corporation. A bylaw may not require the board to grant, amend, redeem, extend, or replace the rights or options. (New.) Sec. 21.170. CONSIDERATION FOR RIGHTS, OPTIONS, AND CONVERTIBLE INDEBTEDNESS. (a) In the absence of fraud in the transaction, the judgment of the board of directors of a corporation as to the adequacy of the consideration received for rights, options, or convertible indebtedness is conclusive. (b) A corporation may issue rights or options to its shareholders, officers, consultants, independent contractors, employees, or directors without consideration if, in the judgment of the board of directors, the issuance of the rights or options is in the interests of the corporation. (c) The consideration for shares having a par value, other than treasury shares, and issued on the exercise of the rights or options may not be less than the par value of the shares. (d) A privilege of conversion may not be conferred on, or altered with respect to, any indebtedness that would result in the corporation receiving less than the minimum consideration required to be received on issuance of the shares. (e) The consideration for shares issued on the exercise of rights, options, or convertible indebtedness shall be determined as provided by Section 21.161. (TBCA 2.14-1 (part).) Sec. 21.171. TREASURY SHARES. (a) Treasury shares are considered to be issued shares and not outstanding shares. (b) Treasury shares may not be included in the total assets of a corporation for purposes of determining the net assets of a corporation. (TBCA 1.02.A(28) (part).) Sec. 21.172. EXPENSES OF ORGANIZATION, REORGANIZATION, AND FINANCING OF CORPORATION. A corporation may pay or authorize to be paid from the consideration received by the corporation as payment for the corporation's shares the reasonable charges and expenses of the organization or reorganization of the corporation and the sale or underwriting of the shares without rendering the shares not fully paid and nonassessable. (TBCA 2.18.) Sec. 21.173. SUPPLEMENTAL REQUIRED RECORDS. In addition to the books and records required to be kept under Section 3.151, a corporation shall keep at its registered office or principal place of business, or at the office of its transfer agent or registrar, a record of: (1) the original issuance of shares issued by the corporation; (2) each transfer of those shares that have been presented to the corporation for registration of transfer; (3) the names and addresses of all past shareholders of the corporation; and (4) the number and class or series of shares issued by the corporation held by each current and past shareholder. (TBCA 2.44.A (part).)
[Sections 21.174-21.200 reserved for expansion]
SUBCHAPTER E. SHAREHOLDER RIGHTS AND RESTRICTIONS
Sec. 21.201. REGISTERED HOLDERS AS OWNERS. Except as otherwise provided by this code and subject to Chapter 8, Business & Commerce Code, a corporation may consider the person registered as the owner of a share in the share transfer records of the corporation at a particular time, including a record date set under Section 6.101 or 6.102 or Subchapter H, as the owner of that share at that time for purposes of: (1) voting the share; (2) receiving distributions on the share; (3) transferring the share; (4) receiving notice, exercising rights of dissent, exercising or waiving a preemptive right, or giving proxies with respect to that share; (5) entering into agreements with respect to that share in accordance with Section 6.251, 6.252, or 21.210; or (6) any other shareholder action. (TBCA 2.26.A (part).) Sec. 21.202. DEFINITION OF SHARES. In Sections 21.203-21.208, "shares" includes a security: (1) that is convertible into shares; or (2) that carries a right to subscribe for or acquire shares. (TBCA 2.22-1.A (part).) Sec. 21.203. NO STATUTORY PREEMPTIVE RIGHT UNLESS PROVIDED BY CERTIFICATE OF FORMATION. (a) Except as provided by Section 21.208, a shareholder of a corporation does not have a preemptive right under this subchapter to acquire the corporation's unissued or treasury shares except to the extent provided by the corporation's certificate of formation. (b) If the certificate of formation includes a statement that the corporation "elects to have a preemptive right" or a similar statement, Section 21.204 applies to a shareholder except to the extent the certificate of formation expressly provides otherwise. (New.) Sec. 21.204. STATUTORY PREEMPTIVE RIGHTS. (a) If the shareholders of a corporation have a preemptive right under this subchapter, the shareholders have a preemptive right to acquire proportional amounts of the corporation's unissued or treasury shares on the decision of the corporation's board of directors to issue the shares. The preemptive right granted under this subsection is subject to uniform terms and conditions prescribed by the board of directors to provide a fair and reasonable opportunity to exercise the preemptive right. (b) No preemptive right exists with respect to: (1) shares issued or granted as compensation to a director, officer, agent, or employee of the corporation or a subsidiary or affiliate of the corporation; (2) shares issued or granted to satisfy conversion or option rights created to provide compensation to a director, officer, agent, or employee of the corporation or a subsidiary or affiliate of the corporation; (3) shares authorized in the corporation's certificate of formation that are issued not later than the 180th day after the effective date of the corporation's formation; or (4) shares sold, issued, or granted by the corporation for consideration other than money. (c) A holder of a share of a class without general voting rights but with a preferential right to distributions of profits, income, or assets does not have a preemptive right with respect to shares of any class. (d) A holder of a share of a class with general voting rights but without preferential rights to distributions of profits, income, or assets does not have a preemptive right with respect to shares of any class with preferential rights to distributions of profits, income, or assets unless the shares with preferential rights are convertible into or carry a right to subscribe for or acquire shares without preferential rights. (e) For a one-year period after the date the shares have been offered to shareholders, shares subject to preemptive rights that are not acquired by a shareholder may be issued to a person at a consideration set by the corporation's board of directors that is not lower than the consideration set for the exercise of preemptive rights. An offer at a lower consideration or after the expiration of the period prescribed by this subsection is subject to the shareholder's preemptive rights. (TBCA 2.22-1.A, B.) Sec. 21.205. WAIVER OF PREEMPTIVE RIGHT. (a) A shareholder may waive a preemptive right granted to the shareholder. (b) A written waiver of a preemptive right is irrevocable regardless of whether the waiver is supported by consideration. (New.) Sec. 21.206. LIMITATION ON ACTION TO ENFORCE PREEMPTIVE RIGHT. (a) An action brought against a corporation, the board of directors or an officer, shareholder, or agent of the corporation, or an owner of a beneficial interest in shares of the corporation for the violation of a preemptive right of a shareholder must be brought not later than the earlier of: (1) the first anniversary of the date written notice is given to each shareholder whose preemptive right was violated; or (2) the fourth anniversary of the latest of: (A) the date the corporation issued the shares, securities, or rights; (B) the date the corporation sold the shares, securities, or rights; or (C) the date the corporation otherwise distributed the shares, securities, or rights. (b) The notice required by Subsection (a)(1) must: (1) be sent to the holder at the address for the holder as shown on the appropriate records of the corporation; and (2) inform the holder that the issuance, sale, or other distribution of shares, securities, or rights violated the holder's preemptive right. (TBCA 2.22-1.C.) Sec. 21.207. DISPOSITION OF SHARES HAVING PREEMPTIVE RIGHTS. The transferee or successor of a share that has been transferred or otherwise disposed of by a shareholder of a corporation whose preemptive right to acquire shares in the corporation has been violated does not acquire the preemptive right, or any right or claim based on the violation, unless the previous shareholder has assigned the preemptive right to the transferee or successor. (TBCA 2.22-1.D.) Sec. 21.208. PREEMPTIVE RIGHT IN EXISTING CORPORATION. Subject to the certificate of formation, a shareholder of a corporation incorporated before the effective date of this code has a preemptive right to acquire unissued or treasury shares of the corporation to the extent provided by Sections 21.204, 21.206, and 21.207. After the effective date of this code, a corporation may limit or deny the preemptive right of the shareholders of the corporation by amending the corporation's certificate of formation. (New.) Sec. 21.209. TRANSFER OF SHARES AND OTHER SECURITIES. Except as otherwise provided by this code, the shares and other securities of a corporation are transferable in accordance with Chapter 8, Business & Commerce Code. (TBCA 2.22.A (part).) Sec. 21.210. RESTRICTION ON TRANSFER OF SHARES AND OTHER SECURITIES. (a) A restriction on the transfer or registration of transfer of a security may be imposed by: (1) the corporation's certificate of formation; (2) the corporation's bylaws; (3) a written agreement among two or more holders of the securities; or (4) a written agreement among one or more holders of the securities and the corporation if: (A) the corporation files a copy of the agreement at the principal place of business or registered office of the corporation; and (B) the copy of the agreement is subject to the same right of examination by a shareholder of the corporation, in person or by agent, attorney, or accountant, as the books and records of the corporation. (b) A restriction imposed under Subsection (a) is not valid with respect to a security issued before the restriction has been adopted, unless the holder of the security voted in favor of the restriction or is a party to the agreement imposing the restriction. (TBCA 2.22.B.) Sec. 21.211. VALID RESTRICTIONS ON TRANSFER. Notwithstanding Sections 21.210 and 21.213, a restriction placed on the transfer or registration of transfer of a security of a corporation is valid if the restriction reasonably: (1) obligates the holder of the restricted security to offer a person, including the corporation or other holders of securities of the corporation, an opportunity to acquire the restricted security within a reasonable time before the transfer; (2) obligates the corporation, to the extent provided by this code, or another person to purchase securities that are the subject of an agreement relating to the purchase and sale of the restricted security; (3) requires the corporation or the holders of a class of the corporation's securities to consent to a proposed transfer of the restricted security or to approve the proposed transferee of the restricted security for the purpose of preventing a violation of law; (4) prohibits the transfer of the restricted security to a designated person or group of persons and the designation is not manifestly unreasonable; (5) maintains the status of the corporation as an electing small business corporation under Subchapter S of the Internal Revenue Code; (6) maintains a tax advantage to the corporation; or (7) maintains the status of the corporation as a close corporation under Subchapter O. (TBCA 2.22.D.) Sec. 21.212. BYLAW OR AGREEMENT RESTRICTING TRANSFER OF SHARES OR OTHER SECURITIES. (a) A corporation that has adopted a bylaw or is a party to an agreement that restricts the transfer of the shares or other securities of the corporation may file with the secretary of state, in accordance with Chapter 4, a copy of the bylaw or agreement and a statement attached to the copy that: (1) contains the name of the corporation; (2) states that the attached copy of the bylaw or agreement is a true and correct copy of the bylaw or agreement; and (3) states that the filing has been authorized by the board of directors or, in the case of a corporation that is managed in some other manner under a shareholders' agreement, by the person empowered by the agreement to manage the corporation's business and affairs. (b) After a statement described by Subsection (a) is filed with the secretary of state, the bylaws or agreement restricting the transfer of shares or other securities is a public record, and the fact that the statement has been filed may be stated on a certificate representing the restricted shares or securities if required by Section 3.202. (c) A corporation that is a party to an agreement restricting the transfer of the shares or other securities of the corporation may make the agreement part of the corporation's certificate of formation without restating the provisions of the agreement in the certificate of formation by amending the certificate of formation. If the agreement alters any provision of the certificate of formation, the certificate of amendment shall identify the altered provision by reference or description. If the agreement is an addition to the certificate of formation, the certificate of amendment must state that fact. (d) The certificate of amendment must: (1) include a copy of the agreement restricting the transfer of shares or other securities; (2) state that the attached copy of the agreement is a true and correct copy of the agreement; and (3) state that inclusion of the certificate of amendment as part of the certificate of formation has been authorized in the manner required by this code to amend the certificate of formation. (TBCA 2.22.E (part), F.) Sec. 21.213. ENFORCEABILITY OF RESTRICTION ON TRANSFER OF CERTAIN SECURITIES. (a) A restriction placed on the transfer or registration of the transfer of a security of a corporation is specifically enforceable against the holder, or a successor or transferee of the holder, if: (1) the restriction is reasonable and noted conspicuously on the certificate or other instrument representing the security; or (2) with respect to an uncertificated security, the restriction is reasonable and a notation of the restriction is contained in the notice sent with respect to the security under Section 3.205. (b) Unless noted in the manner specified by Subsection (a) with respect to a certificate or other instrument or an uncertificated security, an otherwise enforceable restriction is ineffective against a transferee for value without actual knowledge of the restriction at the time of the transfer or against a subsequent transferee, regardless of whether the transfer is for value. A restriction is specifically enforceable against a person other than a transferee for value from the time the person acquires actual knowledge of the restriction's existence. (TBCA 2.22.C.) Sec. 21.214. JOINT OWNERSHIP OF SHARES. (a) If shares are registered on the books of a corporation in the names of two or more persons as joint owners with the right of survivorship and one of the owners dies, the corporation may record on its books and effect the transfer of the shares to a person, including the surviving joint owner, and pay any distributions made with respect to the shares, as if the surviving joint owner was the absolute owner of the shares. The recording and distribution authorized by this subsection must be made after the death of a joint owner and before the corporation receives actual written notice that a party other than a surviving joint owner is claiming an interest in the shares or distribution. (b) The discharge of a corporation from liability under Section 21.216 and the transfer of full legal and equitable title of the shares does not affect, reduce, or limit any cause of action existing in favor of an owner of an interest in the shares or distributions against the surviving owner. (TBCA 2.22.G (part).) Sec. 21.215. LIABILITY FOR DESIGNATING OWNER OF SHARES. A corporation or an officer, director, employee, or agent of the corporation may not be held liable for considering the person who is registered as the owner of a share in the share transfer records of the corporation at a particular time to be the owner of the share at that time for a purpose described by Section 21.201, regardless of whether the person possesses a certificate for that share. (TBCA 2.26.A(2).) Sec. 21.216. LIABILITY REGARDING JOINT OWNERSHIP OF SHARES. A corporation that transfers shares or makes a distribution to a surviving joint owner under Section 21.214 before the corporation has received a written claim for the shares or distribution from another person is discharged from liability for the transfer or payment. (TBCA 2.22.G (part).) Sec. 21.217. LIABILITY OF ASSIGNEE OR TRANSFEREE. An assignee or transferee of certificated shares, uncertificated shares, or a subscription for shares in good faith and without knowledge that full consideration for the shares or subscription has not been paid may not be held personally liable to the corporation or a creditor of the corporation for an unpaid portion of the consideration. (TBCA 2.21.C.) Sec. 21.218. EXAMINATION OF RECORDS. (a) In this section, a holder of a beneficial interest in a voting trust entered into under Section 6.251 is a holder of the shares represented by the beneficial interest. (b) Subject to the governing documents and on written demand stating a proper purpose, a holder of shares of a corporation for at least six months immediately preceding the holder's demand, or a holder of at least five percent of all of the outstanding shares of a corporation, is entitled to examine and copy, at a reasonable time, the corporation's relevant books, records of account, minutes, and share transfer records. The examination may be conducted in person or through an agent, accountant, or attorney. (c) This section does not impair the power of a court, on the presentation of proof of proper purpose by a beneficial or record holder of shares, to compel the production for examination by the holder of the books and records of accounts, minutes, and share transfer records of a corporation, regardless of the period during which the holder was a beneficial holder or record holder and regardless of the number of shares held by the person. (TBCA 2.44.C, E, G.) Sec. 21.219. ANNUAL AND INTERIM STATEMENTS OF CORPORATION. (a) On written request of a shareholder of the corporation, a corporation shall mail to the shareholder: (1) the annual statements of the corporation for the last fiscal year that contain in reasonable detail the corporation's assets and liabilities and the results of the corporation's operations; and (2) the most recent interim statements, if any, that have been filed in a public record or other publication. (b) The corporation shall be allowed a reasonable time to prepare the annual statements. (TBCA 2.44.F.) Sec. 21.220. PENALTY FOR FAILURE TO PREPARE VOTING LIST. An officer or agent of a corporation who is in charge of the corporation's share transfer records and who does not prepare the list of owners, keep the list on file for a 10-day period, or produce and keep the list available for inspection at the annual meeting as required by Sections 21.354 and 21.372 is liable to an owner who suffers damages because of the failure for the damage caused by the failure. (TBCA 2.27.C (part).) Sec. 21.221. PENALTY FOR FAILURE TO PROVIDE NOTICE OF MEETING. If an officer or agent of a corporation is unable to comply with the duties prescribed by Sections 21.354 and 21.372 because the officer or agent did not receive notice of a meeting of owners within a sufficient time before the date of the meeting, the corporation, rather than the officer or agent, is liable to an owner who suffers damages because of the failure for the extent of the damage caused by the failure. (TBCA 2.27.C (part).) Sec. 21.222. PENALTY FOR REFUSAL TO PERMIT EXAMINATION OF CERTAIN RECORDS. (a) A corporation that refuses to allow a person to examine and make copies of account records, minutes, and share transfer records under Section 21.218 is liable to the shareholder for any cost or expense, including attorney's fees, incurred in enforcing the shareholder's rights under Section 21.218. The liability imposed on a corporation under this subsection is in addition to any other damages or remedy afforded to the shareholder by law. (b) It is a defense to an action brought under this section that the person suing: (1) has, within the two years preceding the date the action is brought, sold or offered for sale a list of shareholders or of holders of voting trust certificates in consideration for shares of the corporation or any other corporation; (2) has aided or abetted a person in procuring a list of shareholders or of holders of voting trust certificates for the purpose described by Subdivision (1); (3) has improperly used information obtained through a prior examination of the books and account records, minutes, or share transfer records of the corporation or any other corporation; or (4) was not acting in good faith or for a proper purpose in making the person's request for examination. (TBCA 2.44.D.) Sec. 21.223. LIMITATION OF LIABILITY FOR OBLIGATIONS. (a) A holder of shares, an owner of any beneficial interest in shares, or a subscriber for shares whose subscription has been accepted, or any affiliate of such a holder, owner, or subscriber of the corporation, may not be held liable to the corporation or its obligees with respect to: (1) the shares, other than the obligation to pay to the corporation the full amount of consideration, fixed in compliance with Sections 21.157-21.162, for which the shares were or are to be issued; (2) any contractual obligation of the corporation or any matter relating to or arising from the obligation on the basis that the holder, beneficial owner, subscriber, or affiliate is or was the alter ego of the corporation or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or other similar theory; or (3) any obligation of the corporation on the basis of the failure of the corporation to observe any corporate formality, including the failure to: (A) comply with this code or the articles of incorporation or bylaws of the corporation; or (B) observe any requirement prescribed by this code or the articles of incorporation or bylaws of the corporation for acts to be taken by the corporation or its directors or shareholders. (b) Subsection (a)(2) does not prevent or limit the liability of a holder, beneficial owner, subscriber, or affiliate if the obligee demonstrates that the holder, beneficial owner, subscriber, or affiliate caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the holder, beneficial owner, subscriber, or affiliate. (TBCA 2.21.A.) Sec. 21.224. PREEMPTION OF LIABILITY. The liability of a holder, beneficial owner, or subscriber of shares of a corporation, or any affiliate of such a holder, owner, or subscriber of the corporation, for an obligation that is limited by Section 21.223 is exclusive and preempts any other liability imposed for that obligation under common law or otherwise. (TBCA 2.21.B (part).) Sec. 21.225. EXCEPTIONS TO LIMITATIONS. Section 21.223 or 21.224 does not limit the obligation of a holder, beneficial owner, subscriber, or affiliate to the obligee of the corporation if that person: (1) expressly assumes, guarantees, or agrees to be personally liable to the obligee for the obligation; or (2) is otherwise liable to the obligee for the obligation under this code or other applicable statute. (TBCA 2.21.B (part).) Sec. 21.226. PLEDGEES AND TRUST ADMINISTRATORS. (a) A pledgee or other holder of shares as collateral security is not personally liable as a shareholder. (b) An executor, administrator, conservator, guardian, trustee, assignee for the benefit of creditors, or receiver is not personally liable as a holder of or subscriber to shares of a corporation. (c) The estate and funds administered by an executor, administrator, conservator, guardian, trustee, assignee for the benefit of creditors, or receiver are liable for the full amount of the consideration for which the shares were or are to be issued. (TBCA 2.21.D, E.)
[Sections 21.227-21.250 reserved for expansion]
SUBCHAPTER F. REDUCTIONS IN STATED CAPITAL;
CANCELLATION OF TREASURY SHARES
Sec. 21.251. REDUCTION OF STATED CAPITAL BY REDEMPTION OR PURCHASE OF REDEEMABLE SHARES. (a) At the time a corporation redeems or purchases the redeemable shares of the corporation, the redemption or purchase has the effect of: (1) canceling the shares; and (2) restoring the shares to the status of authorized but unissued shares, unless the corporation's certificate of formation provides that shares may not be reissued after the shares are redeemed or purchased by the corporation. (b) If the corporation is prohibited from reissuing the shares by the certificate of formation following a redemption or purchase under Subsection (a), the number of shares of the class that the corporation is authorized to issue is reduced by the number of shares canceled. (c) If shares redeemed or purchased by a corporation under Subsection (a) constitute all of the outstanding shares of a particular class of shares and the certificate of formation provides that the shares of the class, when redeemed and repurchased, may not be reissued, the corporation may not issue any additional shares of the class of shares. (d) Upon the redemption or purchase of redeemable shares under this section, the stated capital of the corporation shall be reduced by that part of the stated capital that was, at the time of the redemption or purchase, represented by those redeemable shares. (TBCA 4.10.A, D.) Sec. 21.252. CANCELLATION OF TREASURY SHARES. (a) A corporation, by resolution of the board of directors of the corporation, may cancel all or part of the corporation's treasury shares at any time. (b) Upon the cancellation of treasury shares, the stated capital of the corporation shall be reduced by that part of the stated capital that was, at the time of the cancellation, represented by the canceled shares, and the canceled shares shall be restored to the status of authorized but unissued shares. (c) This section does not prohibit a cancellation of shares or a reduction of stated capital in any other manner permitted by law. (TBCA 4.11.) Sec. 21.253. PROCEDURES FOR REDUCTION OF STATED CAPITAL BY BOARD OF DIRECTORS. (a) If all or part of the stated capital of a corporation is represented by shares without par value, the stated capital of the corporation may be reduced in the manner provided by this section. (b) The board of directors shall adopt a resolution that: (1) states the amount of the proposed reduction of the stated capital and the manner in which the reduction will be effected; and (2) directs that the proposed reduction be submitted to a vote of the shareholders at an annual or special meeting. (c) Each shareholder of record entitled to vote on the reduction of stated capital shall be given written notice stating that the purpose or one of the purposes of the meeting is to consider the matter of reducing the stated capital of the corporation in the amount and manner proposed by the board of directors. The notice shall be given in the time and manner provided by this code for giving notice of shareholders' meetings. (d) The affirmative vote of the holders of at least the majority of the shares entitled to vote on the matter is required for approval of the resolution proposing the reduction of stated capital. (e) Upon the approval of the resolution by the shareholders, the stated capital of the corporation shall be reduced as provided in the resolution. (TBCA 4.12.A, D.) Sec. 21.254. RESTRICTION ON REDUCTION OF STATED CAPITAL. The stated capital of a corporation may not be reduced under this subchapter if the amount of the aggregate stated capital of the corporation would be reduced to an amount equal to or less than the sum of the: (1) aggregate preferential amounts payable on all issued shares with a preferential right to the assets of the corporation in the event of voluntary winding up and termination; and (2) aggregate par value of all issued shares with par value but no preferential right to the assets of the corporation in the event of voluntary winding up and termination. (TBCA 4.12.E.)
[Sections 21.255-21.300 reserved for expansion]
SUBCHAPTER G. DISTRIBUTIONS AND SHARE DIVIDENDS
Sec. 21.301. DEFINITIONS. In this subchapter: (1) "Distribution limit," with respect to a distribution made by a corporation, other than a distribution described by Subdivision (2), means: (A) the net assets of the corporation if the distribution: (i) is a purchase or redemption of its own shares by a corporation that: (a) is eliminating fractional shares; (b) is collecting or compromising indebtedness owed by or to the corporation; or (c) is paying dissenting shareholders entitled to payment for their shares under this code; or (ii) is not the purchase or redemption of its own shares by a consuming assets corporation; or (B) the surplus of the corporation for a distribution not described by Paragraph (A). (2) "Distribution limit," with respect to a distribution that is a purchase or redemption of its own shares by an investment company the certificate of formation of which provides that the company may purchase the company's own shares out of stated capital, means the net assets of the investment company rather than the surplus of the investment company. (3) "Investment company" means a corporation registered as an open-end company under the Investment Company Act. (TBCA 2.38.C.) Sec. 21.302. AUTHORITY FOR DISTRIBUTIONS. The board of directors of a corporation may authorize a distribution and the corporation may make a distribution, subject to Section 21.303. (TBCA 2.38.A.) Sec. 21.303. LIMITATIONS ON DISTRIBUTIONS. (a) A corporation may not make a distribution that violates the corporation's certificate of formation. (b) Unless the distribution is made in compliance with Chapter 11, a corporation may not make a distribution: (1) if the corporation would be insolvent after the distribution; or (2) that exceeds the distribution limit. (TBCA 2.38.A, B, D.) Sec. 21.304. REDEMPTIONS. (a) A distribution by a corporation that involves a redemption of outstanding redeemable shares of the corporation subject to redemption may be related to any or all of those shares. (b) If less than all of the outstanding redeemable shares of a corporation subject to redemption are to be redeemed, the shares to be redeemed shall be selected for redemption: (1) in accordance with the corporation's certificate of formation; or (2) ratably or by lot in the manner prescribed by resolution of the corporation's board of directors, if the certificate of formation does not specify how shares are to be selected for redemption. (c) A redemption of redeemable shares takes effect by call and written notice of the redemption of the shares. (TBCA 4.08.A (part).) Sec. 21.305. NOTICE OF REDEMPTION. (a) A notice of redemption of redeemable shares of a corporation must state: (1) the class or series of shares or part of the class or series of shares to be redeemed; (2) the date set for redemption; (3) the redemptive price; and (4) the place at which the shareholders may obtain payment of the redemptive price. (b) The notice of redemption shall be sent to each holder of redeemable shares being called not later than the 21st day or earlier than the 60th day before the date set for redemption. (c) A notice that is mailed is considered to have been sent when the notice is deposited in the United States mail, with postage prepaid, addressed to the shareholder at the shareholder's address as it appears on the share transfer records of the corporation. (d) A corporation may give the transfer agent described by Section 21.306 irrevocable instructions to send or complete the notice of redemption. (TBCA 4.08.A (part), B.) Sec. 21.306. DEPOSIT OF MONEY FOR REDEMPTION. (a) After the date the notice of redemption required by Section 21.305 is sent and before the day after the date set for redemption of redeemable shares of the corporation, a corporation may deposit with a bank or trust company in this or another state of the United States appointed and acting as transfer agent for the corporation an amount sufficient to redeem the shares called for redemption. The amount must be deposited as a trust fund. (b) Unless the corporation's certificate of formation provides otherwise, if a corporation deposits money and gives payment instructions in accordance with Subsection (a) and Section 21.307(b): (1) the shares called for redemption are considered redeemed, and distributions on those shares cease to accrue on and after the date set for redemption; and (2) the deposit constitutes full payment of the shares called for redemption to the holders of the shares on and after the date set for redemption. (c) Unless the certificate of formation provides otherwise, after the date a deposit is made and instructions are given under this section and Section 21.307(b), the shares called for redemption are not considered outstanding, and the holders of the shares cease to be shareholders of the shares and have no right with respect to the shares other than: (1) the right to receive payment of the redemptive price of the shares without interest from the bank or trust company; and (2) any right to convert those shares. (d) Unless the certificate of formation provides otherwise, a bank or trust company receiving a deposit under this section shall pay to the corporation on demand the balance of the amount deposited if one or more holders of the shares called for redemption do not claim for redemption the amount deposited on or before the sixth anniversary of the date of the deposit. After making a payment under this subsection, the bank or trust company is relieved of all responsibility to the holders with respect to the amount deposited. (TBCA 4.08.B (part).) Sec. 21.307. PAYMENT OF REDEEMED SHARES. (a) Payment of a certificated share shall be made only on the surrender of the respective share certificate. (b) A corporation may give a transfer agent described by Section 21.306 irrevocable instructions to pay, on or after the date set for redemption of redeemable shares, the redemptive price to the respective holders of the shares as evidenced by a list of shareholders certified by an officer of the corporation. (TBCA 4.08.B (part).) Sec. 21.308. PRIORITY OF DISTRIBUTIONS. (a) Except as provided by Subsection (b) or (c), a corporation's indebtedness that arises as a result of the declaration of a distribution and a corporation's indebtedness issued in a distribution are at parity with the corporation's indebtedness to its general, unsecured creditors. (b) The indebtedness described by Subsection (a) shall be subordinated to the extent required by an agreement binding on the corporation on the date the indebtedness arises or if agreed to by the person to whom the indebtedness is owed or, with respect to indebtedness issued in a distribution, as provided by the corporation. (c) The indebtedness described by Subsection (a) shall be secured to the extent required by an agreement binding on the corporation. (TBCA 2.38.E.) Sec. 21.309. RESERVES, DESIGNATIONS, AND ALLOCATIONS FROM SURPLUS. (a) A corporation, by resolution of the board of directors of the corporation, may: (1) create a reserve out of the surplus of the corporation; or (2) designate or allocate in any manner a part or all of the corporation's surplus for a proper purpose. (b) A corporation may increase, decrease, or abolish a reserve, designation, or allocation in the manner provided by Subsection (a). (TBCA 4.13.) Sec. 21.310. AUTHORITY FOR SHARE DIVIDENDS. The board of directors of a corporation may authorize a share dividend and the corporation may pay a share dividend subject to Section 21.311 and any restriction in its certificate of formation. (TBCA 2.38-1.A.) Sec. 21.311. LIMITATIONS ON SHARE DIVIDENDS. A corporation may not pay a share dividend in authorized but unissued shares of any class if: (1) the surplus of the corporation is less than the amount required by Section 21.313 to be transferred to stated capital at the time the share dividend is made; or (2) the share dividend will be made to a holder of shares of any other class or series, unless: (A) the corporation's certificate of formation provides for the dividend; or (B) the share dividend is authorized by the holders of at least a majority of the outstanding shares of the class or series in which the share dividend is to be made. (TBCA 2.38-1.B, E.) Sec. 21.312. VALUE OF SHARES ISSUED AS SHARE DIVIDENDS. (a) A share dividend payable in authorized but unissued shares with par value shall be issued at the par value of the respective share. (b) A share dividend payable in authorized but unissued shares without par value shall be issued at the value set by the board of directors when the share dividend is authorized. (TBCA 2.38-1.C (part), D (part).) Sec. 21.313. TRANSFER OF SURPLUS FOR SHARE DIVIDENDS. (a) When a share dividend payable in authorized but unissued shares with par value is made by a corporation, an amount of surplus designated by the corporation's board of directors that is not less than the aggregate par value of the shares issued as a share dividend shall be transferred to stated capital. (b) When a share dividend payable in authorized but unissued shares without par value is made by a corporation, an amount of surplus equal to the aggregate value set by the corporation's board of directors with respect to shares under Section 21.312(b) shall be transferred to stated capital. (TBCA 2.38-1.C (part), D (part).) Sec. 21.314. DETERMINATION OF SOLVENCY, NET ASSETS, STATED CAPITAL, AND SURPLUS. (a) For purposes of this subchapter, the determination of whether a corporation is or would be insolvent and the determination of the value of a corporation's net assets, stated capital, or surplus and each of the components of net assets, stated capital, or surplus may be based on: (1) financial statements of the corporation, including financial statements that: (A) include subsidiary corporations or other corporations accounted for on a consolidated basis or on the equity method of accounting; or (B) present the financial condition of the corporation in accordance with generally accepted accounting principles; (2) financial statements prepared using the method of accounting used to file the corporation's federal income tax return or using any other accounting practices and principles that are reasonable under the circumstances; (3) financial information, including condensed or summary financial statements, that is prepared on the same basis as financial statements described by Subdivision (1) or (2); (4) projection, forecast, or other forward-looking information relating to the future economic performance, financial condition, or liquidity of the corporation that is reasonable under the circumstances; (5) a fair valuation or information from any other method that is reasonable under the circumstances; or (6) a combination of a statement, valuation, or information authorized by this section. (b) Subsection (a) does not apply to the computation of the Texas franchise tax or any other tax imposed on a corporation under the laws of this state. (TBCA 2.38-3.) Sec. 21.315. DATE OF DETERMINATION OF SOLVENCY, NET ASSETS, STATED CAPITAL, AND SURPLUS. (a) For purposes of this subchapter, a determination of whether a corporation is or would be insolvent after a distribution or share dividend or a determination of the value of a corporation's net assets, stated capital, or surplus, or each component of net assets, stated capital, or surplus, shall be made: (1) on the date the distribution or share dividend is authorized by the corporation's board of directors if the distribution or share dividend is made not later than the 120th day after the date of authorization; or (2) if the distribution or share dividend is made more than 120 days after the date of authorization: (A) on the date designated by the corporation's board of directors if the date so designated is not earlier than 120 days before the date the distribution or share dividend is made; or (B) on the date the distribution or share dividend is made if the corporation's board of directors does not designate a date as described in Paragraph (A). (b) For purposes of this section, a distribution that involves: (1) the incurrence by a corporation of indebtedness or a deferred payment obligation is considered to have been made on the date the indebtedness or obligation is incurred; or (2) a requirement in the corporation's certificate of formation or other contract of the corporation to redeem, exchange, or otherwise acquire any of its own shares is considered to have been made either on the date when the provision or other contract is made or takes effect or on the date when the shares to be redeemed, exchanged, or acquired are redeemed, exchanged, or acquired, at the option of the corporation. (TBCA 2.38-4.) Sec. 21.316. LIABILITY OF DIRECTORS FOR WRONGFUL DISTRIBUTIONS. (a) Subject to Subsection (c), the directors of a corporation who vote for or assent to a distribution by the corporation that is prohibited by Section 21.303 are jointly and severally liable to the corporation for the amount by which the distribution exceeds the amount permitted by that section to be distributed. (b) A director is not liable for all or part of the excess amount if a distribution of that amount would have been permitted by Section 21.303 after the date the director authorized the distribution. (c) A director is not jointly and severally liable under Subsection (a) if, in voting for or assenting to the distribution, the director: (1) relies in good faith and with ordinary care on: (A) the statements, valuations, or information described by Section 21.314; or (B) other information, opinions, reports, or statements, including financial statements and other financial data, concerning the corporation or another person that are prepared or presented by: (i) one or more officers or employees of the corporation; (ii) a legal counsel, public accountant, investment banker, or other person relating to a matter the director reasonably believes is within the person's professional or expert competence; or (iii) a committee of the board of directors of which the director is not a member; (2) acting in good faith and with ordinary care, considers the assets of the corporation to be valued at least at their book value; or (3) in determining whether the corporation made adequate provision for payment, satisfaction, or discharge of all of the corporation's liabilities and obligations, as provided by Sections 11.053 and 11.356, relies in good faith and with ordinary care on financial statements of, or other information concerning, a person who was or became contractually obligated to pay, satisfy, or discharge some or all of the corporation's liabilities or obligations. (d) The liability imposed under Subsection (a) is the only liability of a director to the corporation or its creditors for authorizing a distribution that is prohibited by Section 21.303. (e) This section and Sections 21.317 and 21.318 do not limit any liability imposed under Chapter 24, Business & Commerce Code, or the United States Bankruptcy Code. (TBCA 2.41.A(1), C, G (part).) Sec. 21.317. STATUTE OF LIMITATIONS ON ACTION FOR WRONGFUL DISTRIBUTION. An action may not be brought against a director of a corporation under Section 21.316 after the second anniversary of the date the alleged act giving rise to the liability occurred. (TBCA 2.41.A(3).) Sec. 21.318. CONTRIBUTION FROM CERTAIN SHAREHOLDERS AND DIRECTORS. (a) A director who is held liable for a claim asserted under Section 21.316 is entitled to receive contributions from shareholders who accepted or received the wrongful distribution knowing that it was prohibited by Section 21.303 in proportion to the amounts received by the shareholders. (b) A director who is liable for a claim asserted under Section 21.316 is entitled to receive contributions from each of the other directors who are liable with respect to that claim in an amount appropriate to achieve equity. (c) The liability provided by Subsection (a) is the only liability of a shareholder to the corporation or a creditor of the corporation for accepting or receiving a distribution by the corporation that is prohibited by Section 21.303, except for any liability under Chapter 24, Business & Commerce Code, or the United States Bankruptcy Code. (TBCA 2.41.E, F, G (part).)
[Sections 21.319-21.350 reserved for expansion]
SUBCHAPTER H. SHAREHOLDERS' MEETINGS; VOTING AND QUORUM
Sec. 21.351. ANNUAL MEETING. (a) An annual meeting of the shareholders of a corporation shall be held at a time that is stated in or set in accordance with the corporation's bylaws. (b) On the application of a shareholder who has previously submitted a written request to the corporation that an annual meeting be held, a court in the county in which the principal executive office of the corporation is located may order a meeting to be held if the annual meeting is not held or written consent instead of the annual meeting is not executed within any 13-month period, unless the meeting is not required to be held under Section 21.655. (c) The failure to hold an annual meeting at the designated time does not result in the winding up or termination of the corporation. (TBCA 2.24.B.) Sec. 21.352. SPECIAL MEETINGS. (a) A special meeting of the shareholders of a corporation may be called by: (1) the president, the board of directors, or any other person authorized to call special meetings by the certificate of formation or bylaws of the corporation; or (2) the holders of the percentage of shares specified in the certificate of formation, not to exceed 50 percent of the shares entitled to vote or, if no percentage is specified, at least 10 percent of all of the shares of the corporation entitled to vote at the proposed special meeting. (b) Unless stated in or set in accordance with the bylaws, the record date for determining which shareholders of the corporation are entitled to call a special meeting is the date the first shareholder signs the notice of that meeting. (c) Other than procedural matters, the only business that may be conducted at a special meeting of the shareholders is business that is within the purposes described in the notice required by Section 21.353. (TBCA 2.24.C.) Sec. 21.353. NOTICE OF MEETING. (a) Except as provided by Section 21.456, written notice of a meeting in accordance with Section 6.051 shall be given to each shareholder entitled to vote at the meeting not later than the 10th day and not earlier than the 60th day before the date of the meeting. Notice shall be given at the direction of the president, secretary, or other person calling the meeting. (b) The notice of a special meeting must contain a statement regarding the purpose or purposes of the meeting. (TBCA 2.25.A.) Sec. 21.354. INSPECTION OF VOTING LIST. (a) The list of shareholders entitled to vote at the meeting prepared under Section 21.372 shall be: (1) subject to inspection by a shareholder during regular business hours; and (2) produced and kept open at the meeting. (b) The original share transfer records are prima facie evidence of which shareholders are entitled to inspect the list. (TBCA 2.27.A (part).) Sec. 21.355. CLOSING OF SHARE TRANSFER RECORDS. Share transfer records that are closed in accordance with Section 6.101 for the purpose of determining which shareholders are entitled to receive notice of a meeting of shareholders shall remain closed for at least 10 days immediately preceding the date of the meeting. (TBCA 2.26.B (part).) Sec. 21.356. RECORD DATE FOR WRITTEN CONSENT TO ACTION. The record date provided in accordance with Section 6.102(a) may not be more than 10 days after the date on which the board of directors adopts the resolution setting the record date. (TBCA 2.26.C (part).) Sec. 21.357. RECORD DATE FOR PURPOSE OTHER THAN WRITTEN CONSENT TO ACTION. The record date provided by the directors in accordance with Section 6.101 must be at least 10 days before the date on which the particular action requiring the determination of shareholders is to be taken. (TBCA 2.26.B (part).) Sec. 21.358. QUORUM. (a) Subject to Subsection (b), the holders of the majority of the shares entitled to vote at a meeting of the shareholders of a corporation that are present or represented by proxy at the meeting are a quorum for the consideration of a matter to be presented at that meeting. (b) The certificate of formation of a corporation may provide that a quorum is present only if: (1) the holders of a specified portion of the shares that is greater than the majority of the shares entitled to vote are represented at the meeting in person or by proxy; or (2) the holders of a specified portion of the shares that is less than the majority but not less than one-third of the shares entitled to vote are represented at the meeting in person or by proxy. (c) Unless provided by the certificate of formation or bylaws of the corporation, after a quorum is present at a meeting of shareholders, the shareholders may conduct business properly brought before the meeting until the meeting is adjourned. The subsequent withdrawal from the meeting of a shareholder or the refusal of a shareholder present at or represented by proxy at the meeting to vote does not negate the presence of a quorum at the meeting. (d) Unless provided by the certificate of formation or bylaws, the shareholders of the corporation at a meeting at which a quorum is not present may adjourn the meeting until the time and to the place as may be determined by a vote of the holders of the majority of the shares who are present or represented by proxy at the meeting. (TBCA 2.28.A.) Sec. 21.359. VOTING IN ELECTION OF DIRECTORS. (a) Subject to Subsection (b), directors of a corporation shall be elected by a plurality of the votes cast by the holders of shares entitled to vote in the election of directors at a meeting of shareholders at which a quorum is present. (b) The certificate of formation or bylaws of a corporation may provide that a director of a corporation shall be elected only if the director receives: (1) the vote of the holders of a specified portion, but not less than the majority, of the shares entitled to vote in the election of directors; (2) the vote of the holders of a specified portion, but not less than the majority, of the shares entitled to vote in the election of directors and represented in person or by proxy at a meeting of shareholders at which a quorum is present; or (3) the vote of the holders of a specified portion, but not less than the majority, of the votes cast by the holders of shares entitled to vote in the election of directors at a meeting of shareholders at which a quorum is present. (TBCA 2.28.C.) Sec. 21.360. NO CUMULATIVE VOTING RIGHT UNLESS AUTHORIZED. Except as provided by Section 21.361 or 21.362, a shareholder does not have the right to cumulate the shareholder's vote in the election of directors. (New.) Sec. 21.361. CUMULATIVE VOTING IN ELECTION OF DIRECTORS. (a) If expressly authorized by a corporation's certificate of formation in general or with respect to a specified class or series of shares or group of classes or series of shares and subject to Subsections (b) and (c), at each election of directors of the corporation each shareholder entitled to vote at the election is entitled to: (1) vote the number of shares owned by the shareholder for as many candidates as there are directors to be elected and for whose election the shareholder is entitled to vote; or (2) cumulate votes by: (A) giving one candidate as many votes as the total of the number of the directors to be elected multiplied by the shareholder's shares; or (B) distributing the votes among one or more candidates using the same principle. (b) Cumulative voting permitted by the certificate of formation is permitted only in an election of directors in which a shareholder who intends to cumulate votes has given written notice of that intention to the secretary of the corporation on or before the day preceding the date of the election at which the shareholder intends to cumulate votes. (c) All shareholders entitled to vote cumulatively may cumulate their votes if a shareholder gives the notice required by Subsection (b). (TBCA 2.29.D.) Sec. 21.362. CUMULATIVE VOTING RIGHT IN CERTAIN CORPORATIONS. Except as provided by the corporation's certificate of formation, a shareholder of a corporation incorporated before the effective date of this code has the right to cumulatively vote the number of shares the shareholder owns in the election of directors to the extent permitted and in the manner provided by Section 21.361. A corporation may limit or deny a shareholder's right to cumulatively vote shares at any time after the effective date of this code by amending its certificate of formation. (New.) Sec. 21.363. VOTING ON MATTERS OTHER THAN ELECTION OF DIRECTORS. (a) Subject to Subsection (b), with respect to a matter other than the election of directors or a matter for which the affirmative vote of the holders of a specified portion of the shares entitled to vote is required by this code, the affirmative vote of the holders of the majority of the shares entitled to vote on, and who voted for, against, or expressly abstained with respect to, the matter at a shareholders' meeting of a corporation at which a quorum is present is the act of the shareholders. (b) With respect to a matter other than the election of directors or a matter for which the affirmative vote of the holders of a specified portion of the shares entitled to vote is required by this code, the certificate of formation or bylaws of a corporation may provide that the act of the shareholders of the corporation is: (1) the affirmative vote of the holders of a specified portion, but not less than the majority, of the shares entitled to vote on that matter; (2) the affirmative vote of the holders of a specified portion, but not less than the majority, of the shares entitled to vote on that matter and represented in person or by proxy at a shareholders' meeting at which a quorum is present; (3) the affirmative vote of the holders of a specified portion, but not less than the majority, of the shares entitled to vote on, and who voted for or against, the matter at a shareholders' meeting at which a quorum is present; or (4) the affirmative vote of the holders of a specified portion, but not less than the majority, of the shares entitled to vote on, and who voted for, against, or expressly abstained with respect to, the matter at a shareholders' meeting at which a quorum is present. (TBCA 2.28.B.) Sec. 21.364. VOTE REQUIRED TO APPROVE FUNDAMENTAL ACTION. (a) In this section, a "fundamental action" means: (1) an amendment of a certificate of formation; (2) a voluntary winding up under Chapter 11; (3) a revocation of a voluntary decision to wind up under Section 11.151; (4) a cancellation of an event requiring winding up under Section 11.152; or (5) a reinstatement under Section 11.202. (b) Except as otherwise provided by this code or the certificate of formation or bylaws of a corporation in accordance with Section 21.363, the vote required for approval of a fundamental action by the shareholders is the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote on the fundamental action. (c) If a class or series of shares is entitled to vote as a class or series on a fundamental action, the vote required for approval of the action by the shareholders is the affirmative vote of the holders of at least two-thirds of the outstanding shares in each class or series of shares entitled to vote on the action as a class or series and at least two-thirds of the outstanding shares otherwise entitled to vote on the action. Shares entitled to vote as a class or series shall be entitled to vote only as a class or series unless otherwise entitled to vote on each matter submitted to the shareholders generally or otherwise provided by the certificate of formation. (d) Unless an amendment to the certificate of formation is undertaken by the board of directors under Section 21.155, separate voting by a class or series of shares of a corporation is required for approval of an amendment to the certificate of formation that would result in: (1) the increase or decrease of the aggregate number of authorized shares of the class or series; (2) the increase or decrease of the par value of the shares of the class or series, including changing shares with par value into shares without par value or changing shares without par value into shares with par value; (3) effecting an exchange, reclassification, or cancellation of all or part of the shares of the class or series; (4) effecting an exchange or creating a right of exchange of all or part of the shares of another class or series into the shares of the class or series; (5) the change of the designations, preferences, limitations, or relative rights of the shares of the class or series; (6) the change of the shares of the class or series, with or without par value, into the same or a different number of shares, with or without par value, of the same class or series or another class or series; (7) the creation of a new class or series of shares with rights and preferences equal, prior, or superior to the shares of the class or series; (8) increasing the rights and preferences of a class or series with rights and preferences equal, prior, or superior to the shares of the class or series; (9) increasing the rights and preferences of a class or series with rights or preferences later or inferior to the shares of the class or series in such a manner that the rights or preferences will be equal, prior, or superior to the shares of the class or series; (10) dividing the shares of the class into series and setting and determining the designation of the series and the variations in the relative rights and preferences between the shares of the series; (11) the limitation or denial of existing preemptive rights or cumulative voting rights of the shares of the class or series; (12) canceling or otherwise affecting the dividends on the shares of the class or series that have accrued but have not been declared; or (13) the inclusion or deletion from the certificate of formation of provisions required or permitted to be included in the certificate of formation of a close corporation under Subchapter O. (e) The vote required under Subsection (d) by a class or series of shares of a corporation is required notwithstanding that shares of that class or series do not otherwise have a right to vote under the certificate of formation. (f) Unless otherwise provided by the certificate of formation, if the holders of the outstanding shares of a class that is divided into series are entitled to vote as a class on a proposed amendment that would affect equally all series of the class, other than a series in which no shares are outstanding or a series that is not affected by the amendment, the holders of the separate series are not entitled to separate class votes. (g) Unless otherwise provided by the certificate of formation, a proposed amendment to the certificate of formation that would solely effect changes in the designations, preferences, limitations, or relative rights, including voting rights, of one or more series of shares of the corporation that have been established under the authority granted to the board of directors in the certificate of formation in accordance with Section 21.155 does not require the approval of the holders of the outstanding shares of a class or series other than the affected series if, after giving effect to the amendment: (1) the preferences, limitations, or relative rights of the affected series may be set and determined by the board of directors with respect to the establishment of a new series of shares under the authority granted to the board of directors in the certificate of formation in accordance with Section 21.155; or (2) any new series established as a result of a reclassification of the affected series are within the preferences, limitations, and relative rights that are described by Subdivision (1). (TBCA 4.02.A (part), 4.03, 6.03.A (part), 6.05.A (part).) Sec. 21.365. CHANGES IN VOTE REQUIRED FOR CERTAIN MATTERS. (a) With respect to a matter for which the affirmative vote of the holders of a specified portion of the shares entitled to vote is required by this code, the certificate of formation of a corporation may provide that the affirmative vote of the holders of a specified portion, but not less than the majority, of the shares entitled to vote on that matter is required for shareholder action on that matter. (b) With respect to a matter for which the affirmative vote of the holders of a specified portion of the shares of a class or series is required by this code, the certificate of formation may provide that the affirmative vote of the holders of a specified portion, but not less than the majority, of the shares of that class or series is required for action of the holders of shares of that class or series on that matter. (c) If a provision of the certificate of formation provides that the affirmative vote of the holders of a specified portion that is greater than the majority of the shares entitled to vote on a matter is required for shareholder action on that matter, the provision may not be amended, directly or indirectly, without the same affirmative vote unless otherwise provided by the certificate of formation. (d) If a provision of the certificate of formation provides that the affirmative vote of the holders of a specified portion that is greater than the majority of the shares of a class or series is required for shareholder action on a matter, the provision may not be amended, directly or indirectly, without the same affirmative vote unless otherwise provided by the certificate of formation. (TBCA 2.28.D.) Sec. 21.366. NUMBER OF VOTES PER SHARE. (a) Except as provided by the certificate of formation of a corporation or this code, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a shareholders' meeting. (b) If the certificate of formation provides for more or less than one vote per share on a matter for all of the outstanding shares or for the shares of a class or series, each reference in this code or in the certificate of formation or bylaws, unless expressly stated otherwise, to a specified portion of the shares with respect to that matter refers to the portion of the votes entitled to be cast with respect to those shares under the certificate of formation. (TBCA 2.29.A.) Sec. 21.367. VOTING IN PERSON OR BY PROXY. (a) A shareholder may vote in person or by proxy executed in writing by the shareholder. (b) A telegram, telex, cablegram, or other form of electronic transmission, including telephonic transmission, by the shareholder, or a photographic, photostatic, facsimile, or similar reproduction of a writing executed by the shareholder, is considered an execution in writing for purposes of this section. Any electronic transmission must contain or be accompanied by information from which it can be determined that the transmission was authorized by the shareholder. (TBCA 2.29.C (part); New.) Sec. 21.368. TERM OF PROXY. A proxy is not valid after 11 months after the date the proxy is executed unless otherwise provided by the proxy. (TBCA 2.29.C (part).) Sec. 21.369. REVOCABILITY OF PROXY. (a) In this section, a "proxy coupled with an interest" includes the appointment as proxy of: (1) a pledgee; (2) a person who purchased or agreed to purchase the shares subject to the proxy; (3) a person who owns or holds an option to purchase the shares subject to the proxy; (4) a creditor of the corporation who extended the corporation credit under terms requiring the appointment; (5) an employee of the corporation whose employment contract requires the appointment; or (6) a party to a voting agreement created under Section 6.252 or a shareholders' agreement created under Section 21.101. (b) A proxy is revocable unless: (1) the proxy form conspicuously states that the proxy is irrevocable; and (2) the proxy is coupled with an interest. (TBCA 2.29.C (part).) Sec. 21.370. ENFORCEABILITY OF PROXY. (a) An irrevocable proxy is specifically enforceable against the holder of shares or any successor or transferee of the holder if: (1) the proxy is noted conspicuously on the certificate representing the shares subject to the proxy; or (2) in the case of uncertificated shares, notation of the proxy is contained in the notice sent under Section 3.205 with respect to the shares subject to the proxy. (b) An irrevocable proxy that is otherwise enforceable is ineffective against a transferee for value without actual knowledge of the existence of the irrevocable proxy at the time of the transfer or against a subsequent transferee, regardless of whether the transfer is for value, unless the proxy is: (1) noted conspicuously on the certificate representing the shares subject to the proxy; or (2) in the case of uncertificated shares, notation of the proxy is contained in the notice sent under Section 3.205 with respect to the shares subject to the proxy. (c) An irrevocable proxy shall be specifically enforceable against a person who is not a transferee for value from the time the person acquires actual knowledge of the existence of the irrevocable proxy. (TBCA 2.29.C (part).) Sec. 21.371. PROCEDURES IN BYLAWS RELATING TO PROXIES. A corporation may establish in the corporation's bylaws procedures consistent with this code for determining the validity of proxies and determining whether shares that are held of record by a bank, broker, or other nominee are represented at a meeting of shareholders. The procedures may incorporate rules of and determinations made by a stock exchange or self-regulatory organization regulating the corporation or that bank, broker, or other nominee. (TBCA 2.28.E.) Sec. 21.372. SHAREHOLDER MEETING LIST. (a) Not later than the 11th day before the date of each meeting of the shareholders of a corporation, an officer or agent of the corporation who is in charge of the corporation's shareholder records shall prepare an alphabetical list of the shareholders entitled to vote at the meeting or at any adjournment of the meeting. The list of shareholders must: (1) state: (A) the address of each shareholder; (B) the type of shares held by each shareholder; (C) the number of shares held by each shareholder; and (D) the number of votes that each shareholder is entitled to if the number of votes is different from the number of shares stated under Paragraph (C); and (2) be kept on file at the registered office or principal executive office of the corporation for at least 10 days before the date of the meeting. (b) The original share transfer records of the corporation are prima facie evidence of the shareholders of the corporation entitled to vote at the meeting. (c) Failure to comply with this section does not affect the validity of any action taken at a meeting of the shareholders of the corporation. (TBCA 2.27.A, B.)
[Sections 21.373-21.400 reserved for expansion]
SUBCHAPTER I. BOARD OF DIRECTORS
Sec. 21.401. MANAGEMENT BY BOARD OF DIRECTORS. (a) Except as provided by Section 21.101 or Subchapter O, the board of directors of a corporation shall: (1) exercise or authorize the exercise of the powers of the corporation; and (2) direct the management of the business and affairs of the corporation. (b) In discharging the duties of director under this code or otherwise and in considering the best interests of the corporation, a director may consider the long-term and short-term interests of the corporation and the shareholders of the corporation, including the possibility that those interests may be best served by the continued independence of the corporation. (TBCA 2.31 (part), 13.06.) Sec. 21.402. BOARD MEMBER ELIGIBILITY REQUIREMENTS. Unless the certificate of formation or bylaws of a corporation provide otherwise, a person is not required to be a resident of this state or a shareholder of the corporation to serve as a director. The certificate of formation or bylaws may prescribe other qualifications for directors. (TBCA 2.31 (part).) Sec. 21.403. NUMBER OF DIRECTORS. (a) The board of directors of a corporation may consist of one or more directors. (b) If the corporation is to be managed by a board of directors, the number of directors shall be set by, or in the manner provided by, the certificate of formation or bylaws of the corporation, except that the number of directors on the initial board of directors must be set by the certificate of formation. (c) The number of directors may be increased or decreased by amendment to, or as provided by, the certificate of formation or bylaws. A decrease in the number of directors may not shorten the term of an incumbent director. (d) If the certificate of formation or bylaws do not set the number constituting the board of directors or provide for the manner in which the number of directors must be determined, the number of directors is the same as the number constituting the initial board of directors as set by the certificate of formation. (TBCA 2.32.A (part).) Sec. 21.404. DESIGNATION OF INITIAL BOARD OF DIRECTORS. If the corporation is to be managed by a board of directors, the certificate of formation of a corporation must state the names and addresses of the persons constituting the initial board of directors of the corporation. (TBCA 2.32.A (part).) Sec. 21.405. ELECTION OF BOARD OF DIRECTORS. (a) At the first annual meeting of shareholders of a corporation and at each subsequent annual meeting of shareholders, the holders of shares entitled to vote in the election of directors shall elect directors for the term provided under Section 21.407, except as provided by Section 21.408. (b) A corporation's certificate of formation may provide that the holders of a class or series of shares or a group of classes or series of shares are entitled to elect one or more directors of the corporation. (TBCA 2.32.A (part), B (part).) Sec. 21.406. SPECIAL VOTING RIGHTS OF DIRECTORS. (a) The certificate of formation of a corporation may provide that directors elected by the holders of a class or series of shares or by a group of classes or series of shares entitled to elect one or more directors, as provided by Section 21.405, are entitled to cast more or less than one vote on specified matters. (b) Unless expressly stated otherwise, each reference in this code or in a corporation's certificate of formation or bylaws to a specified portion of the directors means the portion of the votes entitled to be cast by the directors to which the reference applies. (TBCA 2.32.B (part).) Sec. 21.407. TERM OF OFFICE. Unless otherwise provided by this subchapter or removed in accordance with Section 21.409, the term of office of a director extends from the date the director is elected and qualified or named in the corporation's certificate of formation until the next annual meeting of shareholders and until the director's successor is elected and qualified. (TBCA 2.32.A (part), B (part).) Sec. 21.408. SPECIAL TERMS OF OFFICE. (a) The certificate of formation or bylaws of a corporation may provide that all or some of the board of directors may be divided into two or three classes that shall include the same or a similar number of directors as each other class and that have staggered terms of office. (b) The terms of office of the initial directors constituting the first class expire at the first annual meeting of shareholders after the election of those directors. The terms of office of the initial directors constituting the second class expire at the second annual meeting of shareholders after election of those directors. The terms of office of the initial directors constituting the third class, if any, expire at the third annual meeting of shareholders after election of those directors. (c) If the certificate of formation or bylaws provide for staggered terms of directors, the shareholders, at each annual meeting, shall elect a number of directors equal to the number of the class of directors whose terms expire at the time of the meeting. The directors elected at an annual meeting shall hold office until the second succeeding annual meeting, if there are two classes, or until the third succeeding annual meeting, if there are three classes. (d) Unless provided by the certificate of formation or a bylaw adopted by the shareholders, staggered terms for directors must be effected at a meeting of shareholders at which directors are elected. Staggered terms for directors may not be effected if any shareholder has the right to cumulate votes for the election of directors and the board of directors consists of fewer than nine members. (e) Directors elected by the holders of a class or series of shares or a group of classes or series of shares in accordance with the certificate of formation shall hold office for the terms specified by the certificate of formation. (TBCA 2.32.B (part), 2.33.) Sec. 21.409. REMOVAL OF DIRECTORS. (a) Except as otherwise provided by the certificate of formation or bylaws of a corporation or this subchapter, the shareholders of the corporation may remove a director or the entire board of directors of the corporation, with or without cause, at a meeting called for that purpose, by a vote of the holders of a specified portion, but not less than the majority, of the shares entitled to vote at an election of directors. (b) If the certificate of formation entitles the holders of a class or series of shares or a group of classes or series of shares to elect one or more directors, only the holders of shares of that class, series, or group may vote on the removal of a director elected by the holders of shares of that class, series, or group. (c) If the certificate of formation permits cumulative voting and less than the entire board is to be removed, a director may not be removed if the votes cast against the removal would be sufficient to elect the director if cumulatively voted at an election of the entire board of directors, or if there are classes of directors, at an election of the class of directors of which the director is a part. (d) In the case of a corporation the directors of which serve staggered terms, a director may not be removed except for cause unless the certificate of formation provides otherwise. (TBCA 2.32.C.) Sec. 21.410. VACANCY. (a) A vacancy occurring in the initial board of directors before the issuance of shares may be filled by the affirmative vote or written consent of the majority of the organizers or by the affirmative vote of the majority of the remaining directors, even if the majority of the remaining directors constitutes less than a quorum of the board of directors. (b) Except as provided by Subsection (e), a vacancy occurring in the board of directors after the issuance of shares may be filled by election at an annual or special meeting of shareholders called for that purpose or by the affirmative vote of the majority of the remaining directors, even if the majority of directors constitutes less than a quorum of the board of directors. (c) The term of a director elected to fill a vacancy occurring in the board of directors, including the initial directors, is the unexpired term of the director's predecessor in office. (d) Except as provided by Subsection (e), a vacancy to be filled because of an increase in the number of directors may be filled by election at an annual or special meeting of shareholders called for that purpose or by the board of directors for a term of office continuing only until the next election of one or more directors by the shareholders. During a period between two successive annual meetings of shareholders, the board of directors may not fill more than two vacancies created by an increase in the number of directors. (e) Unless otherwise authorized by a corporation's certificate of formation, a vacancy or a newly created vacancy in a director position that the certificate of formation entitles the holders of a class or series of shares or group of classes or series of shares to elect may be filled only: (1) by the affirmative vote of the majority of the directors then in office elected by the class, series, or group; (2) by the sole remaining director elected in that manner; or (3) by the affirmative vote of the holders of the outstanding shares of the class, series, or group. (TBCA 2.34.) Sec. 21.411. NOTICE OF MEETING. (a) Regular meetings of the board of directors of a corporation may be held with or without notice as prescribed by the corporation's bylaws. (b) Special meetings of the board of directors shall be held with notice as prescribed by the bylaws. (c) A notice of a board meeting is not required to specify the business to be transacted at the meeting or the purpose of the meeting, unless required by the bylaws. (TBCA 2.37.B (part).) Sec. 21.412. WAIVER OF NOTICE. (a) If the bylaws of a corporation require notice of a meeting to be given to a director, a written waiver of the notice signed by the director entitled to the notice, before or after the meeting, is equivalent to the giving of the notice. (b) The attendance of a director at a board meeting constitutes a waiver of notice of the meeting, unless the director attends the meeting for the express purpose of objecting to the transaction of business at the meeting because the meeting has not been lawfully called or convened. (c) A waiver of notice of a board meeting is not required to specify the business to be transacted at the meeting or the purpose of the meeting, unless required by the bylaws. (TBCA 2.37.B (part).) Sec. 21.413. QUORUM. (a) A quorum of the board of directors is the majority of the number of directors set or established in the manner provided by the certificate of formation or bylaws of a corporation unless the laws of this state, the certificate of formation, or the bylaws require a different number or portion. (b) Neither the certificate of formation nor the bylaws may provide that less than one-third of the number of directors constitutes a quorum. (TBCA 2.35 (part).) Sec. 21.414. DISSENT TO ACTION. (a) A director of a corporation who is present at a meeting of the board of directors at which action has been taken is presumed to have assented to the action taken unless: (1) the director's dissent has been entered in the minutes of the meeting; (2) the director has filed a written dissent to the action with the person acting as the secretary of the meeting before the meeting is adjourned; or (3) the director has sent a written dissent by registered mail to the secretary of the corporation immediately after the meeting has been adjourned. (b) A director who voted in favor of an action may not dissent to the action. (TBCA 2.41.B.) Sec. 21.415. ACTION BY DIRECTORS. (a) The act of a majority of the directors present at a meeting at which a quorum is present is the act of the board of directors of a corporation, unless the act of a greater number is required by the certificate of formation or bylaws of the corporation or by this code. (b) Unless otherwise provided by the certificate of formation or bylaws, a written consent stating the action taken and signed by all members of the board of directors is also an act of the board of directors. (TBCA 2.35 (part), 9.10.B (part).) Sec. 21.416. COMMITTEES OF BOARD OF DIRECTORS. (a) If authorized by the certificate of formation or bylaws of a corporation, the board of directors of the corporation, by resolution adopted by the majority of the entire board of directors, may designate: (1) committees composed of one or more directors; or (2) directors as alternate members of committees to replace absent or disqualified committee members at a committee meeting, subject to any limitations imposed by the board of directors. (b) To the extent provided by the resolution designating a committee or the certificate of formation or bylaws and subject to Subsection (c), the committee has the authority of the board of directors. (c) A committee of the board of directors may not: (1) amend the certificate of formation, except to: (A) establish series of shares; (B) increase or decrease the number of shares in a series; or (C) eliminate a series of shares as authorized by Section 21.155; (2) propose a reduction of stated capital under Sections 21.253 and 21.254; (3) approve a plan of merger, share exchange, or conversion of the corporation; (4) recommend to shareholders the sale, lease, or exchange of all or substantially all of the property and assets of the corporation not made in the usual and regular course of its business; (5) recommend to the shareholders a voluntary winding up and termination or a revocation of a voluntary winding up and termination; (6) amend, alter, or repeal the bylaws or adopt new bylaws; (7) fill vacancies on the board of directors; (8) fill vacancies on or designate alternate members of a committee of the board of directors; (9) fill a vacancy to be filled because of an increase in the number of directors; (10) elect or remove officers of the corporation or members or alternate members of a committee of the board of directors; (11) set the compensation of the members or alternate members of a committee of the board of directors; or (12) alter or repeal a resolution of the board of directors that states that it may not be amended or repealed by a committee of the board of directors. (d) A committee of the board of directors may authorize a distribution or the issuance of shares if authorized by the resolution designating the committee or the certificate of formation or bylaws. (e) The board of directors may remove a member of a committee appointed by the board if the board determines the removal is in the best interests of the corporation. The removal of the member is without prejudice to any contract rights of the person removed. Appointment of a member of a committee does not create contract rights. (f) The designation and delegation of authority to a committee of the board of directors does not relieve the board of directors or a director of responsibility imposed by law. (TBCA 2.36, 9.10.B.) Sec. 21.417. ELECTION OF OFFICERS. The board of directors of a corporation shall elect a president and a secretary at the time and in the manner prescribed by the corporation's bylaws. Other officers, including assistant officers and agents as deemed necessary, may be elected in accordance with Section 3.103. (TBCA 2.42.A (part).) Sec. 21.418. CONTRACTS OR TRANSACTIONS INVOLVING INTERESTED DIRECTORS AND OFFICERS. (a) This section applies only to a contract or transaction between a corporation and: (1) one or more of the corporation's directors or officers; or (2) an entity or other organization in which one or more of the corporation's directors or officers: (A) is a managerial official; or (B) has a financial interest. (b) An otherwise valid contract or transaction is valid notwithstanding that a director or officer of the corporation is present at or participates in the meeting of the board of directors, or of a committee of the board that authorizes the contract or transaction, or votes to authorize the contract or transaction, if: (1) the material facts as to the relationship or interest and as to the contract or transaction are disclosed to or known by: (A) the corporation's board of directors or a committee of the board of directors and the board of directors or committee in good faith authorizes the contract or transaction by the affirmative vote of the majority of the disinterested directors or committee members, regardless of whether the disinterested directors or committee members constitute a quorum; or (B) the shareholders entitled to vote on the authorization of the contract or transaction, and the contract or transaction is specifically approved in good faith by a vote of the shareholders; or (2) the contract or transaction is fair to the corporation when the contract or transaction is authorized, approved, or ratified by the board of directors, a committee of the board of directors, or the shareholders. (c) Common or interested directors of a corporation may be included in determining the presence of a quorum at a meeting of the corporation's board of directors, or a committee of the board of directors, that authorizes the contract or transaction. (TBCA 2.35-1.)
[Sections 21.419-21.450 reserved for expansion]
SUBCHAPTER J. FUNDAMENTAL BUSINESS TRANSACTIONS
Sec. 21.451. DEFINITIONS. In this subchapter: (1) "Participating shares" means shares that entitle the holders of the shares to participate without limitation in distributions. (2) "Sale of all or substantially all of the assets" means the sale, lease, exchange, or other disposition, other than a pledge, mortgage, deed of trust, or trust indenture unless otherwise provided by the certificate of formation, of all or substantially all of the property and assets of a domestic corporation that is not made in the usual and regular course of the corporation's business without regard to whether the disposition is made with the goodwill of the business. The term does not include a transaction that results in the corporation directly or indirectly: (A) continuing to engage in one or more businesses; or (B) applying a portion of the consideration received in connection with the transaction to the conduct of a business that the corporation engages in after the transaction. (3) "Shares" includes a receipt or other instrument issued by a depository representing an interest in one or more shares or fractions of shares of a domestic or foreign corporation that are deposited with the depository. (4) "Voting shares" means shares that entitle the holders of the shares to vote unconditionally in elections of directors. (TBCA 5.03.I(3), (5), (6), 5.09.A (part), B.) Sec. 21.452. APPROVAL OF MERGER. (a) A corporation that is a party to the merger under Chapter 10 must approve the merger by complying with this section. (b) The board of directors of the corporation shall adopt a resolution that: (1) approves the plan of merger; and (2) if shareholder approval of the merger is required by this subchapter: (A) recommends that the plan of merger be approved by the shareholders of the corporation; or (B) directs that the plan of merger be submitted to the shareholders for approval without recommendation if the board of directors determines for any reason not to recommend approval of the plan of merger. (c) Except as otherwise provided by this subchapter or Chapter 10, the plan of merger shall be submitted to the shareholders of the corporation for approval as provided by this subchapter. The board of directors may place conditions on the submission of the plan of merger to the shareholders. (d) If the board of directors approves a plan of merger required to be approved by the shareholders of the corporation but does not adopt a resolution recommending that the plan of merger be approved by the shareholders, the board of directors shall communicate to the shareholders the reason for the board's determination to submit the plan of merger without a recommendation. (e) Except as provided by Chapter 10 or Sections 21.457-21.459, the shareholders of the corporation shall approve the plan of merger as provided by this subchapter. (TBCA 5.03.A (part), B (part), C.) Sec. 21.453. APPROVAL OF CONVERSION. (a) A corporation must approve a conversion under Chapter 10 by complying with this section. (b) The board of directors of the corporation shall adopt a resolution that approves the plan of conversion and: (1) recommends that the plan of conversion be approved by the shareholders of the corporation; or (2) directs that the plan of conversion be submitted to the shareholders for approval without recommendation if the board of directors determines for any reason not to recommend approval of the plan of conversion. (c) The plan of conversion shall be submitted to the shareholders of the corporation for approval as provided by this subchapter. The board of directors may place conditions on the submission of the plan of conversion to the shareholders. (d) If the board of directors approves a plan of conversion but does not adopt a resolution recommending that the plan of conversion be approved by the shareholders of the corporation, the board of directors shall communicate to the shareholders the reason for the board's determination to submit the plan of conversion without a recommendation. (e) Except as provided by Sections 21.457-21.459, the shareholders of the corporation shall approve the plan of conversion as provided by this subchapter. (TBCA 5.03.B, C, 5.17.A (part).) Sec. 21.454. APPROVAL OF EXCHANGE. (a) A corporation the shares of which are to be acquired in an exchange under Chapter 10 must approve the exchange by complying with this section. (b) The board of directors shall adopt a resolution that approves the plan of exchange and: (1) recommends that the plan of exchange be approved by the shareholders of the corporation; or (2) directs that the plan of exchange be submitted to the shareholders for approval without recommendation if the board of directors determines for any reason not to recommend approval of the plan of exchange. (c) The plan of exchange shall be submitted to the shareholders of the corporation for approval as provided by this subchapter. The board of directors may place conditions on the submission of the plan of exchange to the shareholders. (d) If the board of directors approves a plan of exchange but does not adopt a resolution recommending that the plan of exchange be approved by the shareholders of the corporation, the board of directors shall communicate to the shareholders the reason for the board's determination to submit the plan of exchange to shareholders without a recommendation. (e) Except as provided by Sections 21.457-21.459, the shareholders of the corporation shall approve the plan of exchange as provided by this subchapter. (TBCA 5.02.A (part), 5.03.B (part), C (part).) Sec. 21.455. APPROVAL OF SALE OF ALL OR SUBSTANTIALLY ALL OF ASSETS. (a) Except as provided by the certificate of formation of a domestic corporation, a sale, lease, pledge, mortgage, assignment, transfer, or other conveyance of an interest in real property or other assets of the corporation does not require the approval or consent of the shareholders of the corporation unless the transaction constitutes a sale of all or substantially all of the assets of the corporation. (b) A corporation must approve the sale of all or substantially all of its assets by complying with this section. (c) The board of directors of the corporation shall adopt a resolution that approves the sale of all or substantially all of the assets of the corporation and: (1) recommends that the sale of all or substantially all of the assets of the corporation be approved by the shareholders of the corporation; or (2) directs that the sale of all or substantially all of the assets of the corporation be submitted to the shareholders for approval without recommendation if the board of directors determines for any reason not to recommend approval of the sale. (d) The resolution proposing the sale of all or substantially all of the assets of the corporation shall be submitted to the shareholders of the corporation for approval as provided by this subchapter. The board of directors may place conditions on the submission of the proposed sale to the shareholders. (e) If the board of directors approves the sale of all or substantially all of the assets of the corporation but does not adopt a resolution recommending that the proposed sale be approved by the shareholders of the corporation, the board of directors shall communicate to the shareholders the reason for the board's determination to submit the proposed sale to shareholders without a recommendation. (f) The shareholders of the corporation shall approve the sale of all or substantially all of the assets of the corporation as provided by this subchapter. After the approval of the sale by the shareholders, the board of directors may abandon the sale of all or substantially all of the assets of the corporation, subject to the rights of a third party under a contract relating to the assets, without further action or approval by the shareholders. (TBCA 5.09.A (part), 5.10.A (part).) Sec. 21.456. GENERAL PROCEDURE FOR SUBMISSION TO SHAREHOLDERS OF FUNDAMENTAL BUSINESS TRANSACTION. (a) If a fundamental business transaction involving a corporation is required to be submitted to the shareholders of the corporation under this subchapter, the corporation shall notify each shareholder of the corporation that the fundamental business transaction is being submitted to the shareholders for approval at a meeting of shareholders as required by this subchapter, regardless of whether the shareholder is entitled to vote on the matter. (b) If the fundamental business transaction is a merger, conversion, or interest exchange, the notice required by Subsection (a) shall contain or be accompanied by a copy or summary of the plan of merger, conversion, or interest exchange, as appropriate, and the notice required by Section 10.355. (c) The notice of the meeting must: (1) be given not later than the 21st day before the date of the meeting; and (2) state that the purpose, or one of the purposes, of the meeting is to consider the fundamental business transaction. (TBCA 5.03.D, 5.10.A(3).) Sec. 21.457. GENERAL VOTE REQUIREMENT FOR APPROVAL OF FUNDAMENTAL BUSINESS TRANSACTION. (a) Except as provided by this code or the certificate of formation of a corporation in accordance with Section 21.365, the affirmative vote of the holders of at least two-thirds of the outstanding shares of the corporation entitled to vote on a fundamental business transaction is required to approve the transaction. (b) Unless provided by the certificate of formation or Section 21.458, shares of a class or series that are not otherwise entitled to vote on matters submitted to shareholders generally are not entitled to vote for the approval of a fundamental business transaction. (c) Except as provided by this code, if a class or series of shares of a corporation is entitled to vote on a fundamental business transaction as a class or series, in addition to the vote required under Subsection (a), the affirmative vote of the holders of at least two-thirds of the outstanding shares in each class or series of shares entitled to vote on the fundamental business transaction as a class or series is required to approve the transaction. Shares entitled to vote as a class or series shall only be entitled to vote as a class or series on the fundamental business transaction unless that class or series is otherwise entitled to vote on each matter submitted to the shareholders generally or is otherwise entitled to vote under the certificate of formation. (d) Unless required by the certificate of formation, approval of a merger by shareholders is not required under this code for a corporation that is a party to the plan of merger unless that corporation is also a party to the merger. (TBCA 5.01.A (part), 5.03.E, 5.10.A(4).) Sec. 21.458. CLASS VOTING REQUIREMENTS FOR CERTAIN FUNDAMENTAL BUSINESS TRANSACTIONS. (a) Separate voting by a class or series of shares of a corporation is required for approval of a plan of merger or conversion if: (1) the plan of merger or conversion contains a provision that would require approval by that class or series of shares under Section 21.364 if the provision was contained in a proposed amendment to the corporation's certificate of formation; or (2) that class or series of shares is entitled under the certificate of formation to vote as a class or series on the plan of merger or conversion. (b) Separate voting by a class or series of shares of a corporation is required for approval of a plan of exchange if: (1) shares of that class or series are to be exchanged under the terms of the plan of exchange; or (2) that class or series is entitled under the certificate of formation to vote as a class or series on the plan of exchange. (c) Separate voting by a class or series of shares of a corporation is required for approval of a sale of all or substantially all of the assets of a corporation if that class or series of shares is entitled under the certificate of formation to vote as a class or series on the sale of the corporation's assets. (TBCA 5.03.F, 5.10.A(4) (part).) Sec. 21.459. NO SHAREHOLDER VOTE REQUIREMENT FOR CERTAIN FUNDAMENTAL BUSINESS TRANSACTIONS. (a) Unless required by the corporation's certificate of formation, a plan of merger is not required to be approved by the shareholders of a corporation if: (1) the corporation is the sole surviving corporation in the merger; (2) the certificate of formation of the corporation following the merger will not differ from the corporation's certificate of formation before the merger; (3) immediately after the effective date of the merger, each shareholder of the corporation whose shares were outstanding immediately before the effective date of the merger will hold the same number of shares, with identical designations, preferences, limitations, and relative rights; (4) the sum of the voting power of the number of voting shares outstanding immediately after the merger and the voting power of securities that may be acquired on the conversion or exercise of securities issued under the merger does not exceed by more than 20 percent the voting power of the total number of voting shares of the corporation that are outstanding immediately before the merger; and (5) the sum of the number of participating shares that are outstanding immediately after the merger and the number of participating shares that may be acquired on the conversion or exercise of securities issued under the merger does not exceed by more than 20 percent the total number of participating shares of the corporation that are outstanding immediately before the merger. (b) Unless required by the certificate of formation, a plan of merger effected under Section 10.005 or 10.006 does not require the approval of the shareholders of the corporation. (TBCA 5.03.G.) Sec. 21.460. RIGHTS OF DISSENT AND APPRAISAL. A shareholder of a domestic corporation has the rights of dissent and appraisal under Subchapter H, Chapter 10, with respect to a fundamental business transaction. (TBCA 5.11.A.) Sec. 21.461. PLEDGE, MORTGAGE, DEED OF TRUST, OR TRUST INDENTURE. Except as provided by the corporation's certificate of formation: (1) the board of directors of a corporation may authorize a pledge, mortgage, deed of trust, or trust indenture; and (2) an authorization or consent of shareholders is not required for the validity of the transaction or for any sale under the terms of the transaction. (TBCA 5.09.A (part).) Sec. 21.462. CONVEYANCE BY CORPORATION. A corporation may convey real property of the corporation when authorized by appropriate resolution of the board of directors. (TBCA 5.09.A (part).)
[Sections 21.463-21.500 reserved for expansion]
SUBCHAPTER K. WINDING UP AND TERMINATION
Sec. 21.501. APPROVAL OF VOLUNTARY WINDING UP, REINSTATEMENT, OR REVOCATION OF VOLUNTARY WINDING UP. A corporation must approve a voluntary winding up in accordance with Chapter 11, a reinstatement in accordance with Section 11.202, a cancellation of an event requiring winding up under Section 11.152, or revocation of a voluntary decision to wind up in accordance with Section 11.151 by complying with one of the procedures prescribed by this subchapter. (TBCA 6.01 (part), 6.03.A (part), 6.05.A (part).) Sec. 21.502. CERTAIN PROCEDURES RELATING TO WINDING UP. To approve a voluntary winding up, a reinstatement, a cancellation of an event requiring winding up, or a revocation of a voluntary decision to wind up, a corporation must follow one of the following procedures: (1) all shareholders of the corporation must consent in writing to the winding up, the reinstatement, the cancellation of an event requiring winding up, or the revocation of a voluntary decision to wind up the corporation; (2) if the corporation has not commenced business and has not issued any shares, a majority of the organizers or the board of directors of the corporation must adopt a resolution to wind up, to reinstate, to cancel an event requiring winding up, or to revoke a voluntary decision to wind up; or (3)(A) the board of directors of the corporation must adopt a resolution: (i) recommending the winding up, reinstatement, cancellation of an event requiring winding up, or revocation of a voluntary decision to wind up the corporation; and (ii) directing that the winding up, reinstatement, cancellation of an event requiring winding up, or revocation of a voluntary decision to wind up the corporation be submitted to the shareholders for approval at an annual or special meeting of shareholders; and (B) the shareholders must approve the action described by Paragraph (A) in accordance with Section 21.503. (TBCA 6.01 (part), 6.02.A, 6.03.A (part), 6.05.A (part).) Sec. 21.503. MEETING OF SHAREHOLDERS; NOTICE. (a) Each shareholder of record entitled to vote at a meeting described by Section 21.502(3)(A)(ii) must be given written notice stating that the purpose or one of the purposes of the meeting is to consider the winding up, reinstatement, cancellation of the event requiring winding up, or revocation of the voluntary decision to wind up the corporation. The notice must be given in the time and manner provided by Chapter 6 and this chapter for the giving of notice of shareholders' meetings. (b) A vote of shareholders entitled to vote at the meeting shall be taken on the resolution to wind up, reinstate, cancel the event requiring winding up, or revoke the voluntary decision to wind up the corporation. The shareholders must approve the resolution by the affirmative vote required by Section 21.364. (TBCA 6.03.A (part), 6.05.A (part).) Sec. 21.504. RESPONSIBILITY FOR WINDING UP. If a corporation determines or is required to wind up, the directors of the corporation shall manage the process of winding up the business or affairs of the corporation. (New.)
[Sections 21.505-21.550 reserved for expansion]
SUBCHAPTER L. DERIVATIVE PROCEEDINGS
Sec. 21.551. DEFINITIONS. In this subchapter: (1) "Derivative proceeding" means a civil suit in the right of a domestic corporation or, to the extent provided by Section 21.562, in the right of a foreign corporation. (2) "Shareholder" includes a beneficial owner whose shares are held in a voting trust or by a nominee on the beneficial owner's behalf. (TBCA 5.14.A.) Sec. 21.552. STANDING TO BRING PROCEEDING. A shareholder may not institute or maintain a derivative proceeding unless: (1) the shareholder: (A) was a shareholder of the corporation at the time of the act or omission complained of; or (B) became a shareholder by operation of law from a person that was a shareholder at the time of the act or omission complained of; and (2) the shareholder fairly and adequately represents the interests of the corporation in enforcing the right of the corporation. (TBCA 5.14.B.) Sec. 21.553. DEMAND. (a) A shareholder may not institute a derivative proceeding until the 91st day after the date a written demand is filed with the corporation stating with particularity the act, omission, or other matter that is the subject of the claim or challenge and requesting that the corporation take suitable action. (b) The waiting period required by Subsection (a) before a derivative proceeding may be instituted is not required if: (1) the shareholder has been previously notified that the demand has been rejected by the corporation; (2) the corporation is suffering irreparable injury; or (3) irreparable injury to the corporation would result by waiting for the expiration of the 90-day period. (TBCA 5.14.C.) Sec. 21.554. DETERMINATION BY DIRECTORS OR INDEPENDENT PERSONS. (a) A determination of how to proceed on allegations made in a demand or petition relating to a derivative proceeding must be made by an affirmative vote of the majority of: (1) the independent and disinterested directors of the corporation present at a meeting of the board of directors of the corporation at which interested directors are not present at the time of the vote if the independent and disinterested directors constitute a quorum of the board of directors; (2) a committee consisting of two or more independent and disinterested directors appointed by an affirmative vote of the majority of one or more independent and disinterested directors present at a meeting of the board of directors, regardless of whether the independent and disinterested directors constitute a quorum of the board of directors; or (3) a panel of one or more independent and disinterested persons appointed by the court on a motion by the corporation listing the names of the persons to be appointed and stating that, to the best of the corporation's knowledge, the persons to be appointed are disinterested and qualified to make the determinations contemplated by Section 21.558. (b) The court shall appoint a panel under Subsection (a)(3) if the court finds that the persons recommended by the corporation are independent and disinterested and are otherwise qualified with respect to expertise, experience, independent judgment, and other factors considered appropriate by the court under the circumstances to make the determinations. A person appointed by the court to a panel under this section may not be held liable to the corporation or the corporation's shareholders for an action taken or omission made by the person in that capacity, except for an act or omission constituting fraud or wilful misconduct. (TBCA 5.14.H.) Sec. 21.555. STAY OF PROCEEDING. (a) If the domestic or foreign corporation that is the subject of a derivative proceeding commences an inquiry into the allegations made in a demand or petition and the person or group of persons described by Section 21.554 is conducting an active review of the allegations in good faith, the court shall stay a derivative proceeding until the review is completed and a determination is made by the person or group regarding what further action, if any, should be taken. (b) To obtain a stay, the domestic or foreign corporation shall provide the court with a written statement agreeing to advise the court and the shareholder making the demand of the determination promptly on the completion of the review of the matter. A stay, on application, may be reviewed every 60 days for the continued necessity of the stay. (c) If the review and determination made by the person or group is not completed before the 61st day after the stay is ordered by the court, the stay may be renewed for one or more additional 60-day periods if the domestic or foreign corporation provides the court and the shareholder with a written statement of the status of the review and the reasons why a continued extension of the stay is necessary. (TBCA 5.14.D(1).) Sec. 21.556. DISCOVERY. (a) If a domestic or foreign corporation proposes to dismiss a derivative proceeding under Section 21.558, discovery by a shareholder after the filing of the derivative proceeding in accordance with this subchapter shall be limited to: (1) facts relating to whether the person or group of persons described by Section 21.558 is independent and disinterested; (2) the good faith of the inquiry and review by the person or group; and (3) the reasonableness of the procedures followed by the person or group in conducting the review. (b) Discovery described by Subsection (a) may not be expanded to include a fact or substantive matter regarding the act, omission, or other matter that is the subject matter of the derivative proceeding. The scope of discovery may be expanded if the court determines after notice and hearing that a good faith review of the allegations for purposes of Section 21.558 has not been made by an independent and disinterested person or group in accordance with that section. (TBCA 5.14.D(2).) Sec. 21.557. TOLLING OF STATUTE OF LIMITATIONS. A written demand filed with the corporation under Section 21.553 tolls the statute of limitations on the claim on which demand is made until the earlier of: (1) the 91st day after the date of the demand; or (2) the 31st day after the date the corporation advises the shareholder that the demand has been rejected or the review has been completed. (TBCA 5.14.E.) Sec. 21.558. DISMISSAL OF DERIVATIVE PROCEEDING. (a) A court shall dismiss a derivative proceeding on a motion by the corporation if the person or group of persons described by Section 21.554 determines in good faith, after conducting a reasonable inquiry and based on factors the person or group considers appropriate under the circumstances, that continuation of the derivative proceeding is not in the best interests of the corporation. (b) In determining whether the requirements of Subsection (a) have been met, the burden of proof shall be on: (1) the plaintiff shareholder if: (A) the majority of the board of directors consists of independent and disinterested directors at the time the determination is made; (B) the determination is made by a panel of one or more independent and disinterested persons appointed under Section 21.554(a)(3); or (C) the corporation presents prima facie evidence that demonstrates that the directors appointed under Section 21.554(a)(2) are independent and disinterested; or (2) the corporation in any other circumstance. (TBCA 5.14.F.) Sec. 21.559. PROCEEDING INSTITUTED AFTER DEMAND REJECTED. If a derivative proceeding is instituted after a demand is rejected, the petition must allege with particularity facts that establish that the rejection was not made in accordance with the requirements of Sections 21.554 and 21.558. (TBCA 5.14.G.) Sec. 21.560. DISCONTINUANCE OR SETTLEMENT. (a) A derivative proceeding may not be discontinued or settled without court approval. (b) The court shall direct that notice be given to the affected shareholders if the court determines that a proposed discontinuance or settlement may substantially affect the interests of other shareholders. (TBCA 5.14.I.) Sec. 21.561. PAYMENT OF EXPENSES. (a) In this section, "expenses" means reasonable expenses incurred by a party in a derivative proceeding, including: (1) attorney's fees; (2) costs in pursuing an investigation of the matter that was the subject of the derivative proceeding; or (3) expenses for which the domestic or foreign corporation or a corporate defendant may be required to indemnify another person. (b) On termination of a derivative proceeding, the court may order: (1) the domestic or foreign corporation to pay the expenses the plaintiff incurred in the proceeding if the court finds the proceeding has resulted in a substantial benefit to the domestic or foreign corporation; (2) the plaintiff to pay the expenses the domestic or foreign corporation or other defendant incurred in investigating and defending the proceeding if the court finds the proceeding has been instituted or maintained without reasonable cause or for an improper purpose; or (3) a party to pay the expenses incurred by another party relating to the filing of a pleading, motion, or other paper if the court finds the pleading, motion, or other paper: (A) was not well grounded in fact after reasonable inquiry; (B) was not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; or (C) was interposed for an improper purpose, such as to harass, cause unnecessary delay, or cause a needless increase in the cost of litigation. (TBCA 5.14.J.) Sec. 21.562. APPLICATION TO FOREIGN CORPORATIONS. (a) In a derivative proceeding brought in the right of a foreign corporation, the matters covered by this subchapter are governed by the laws of the jurisdiction of incorporation of the foreign corporation, except for Sections 21.555, 21.560, and 21.561, which are procedural provisions and do not relate to the internal affairs of the foreign corporation. (b) In the case of matters relating to a foreign corporation under Section 21.554, a reference to a person or group of persons described by that section refers to a person or group entitled under the laws of the jurisdiction of incorporation of the foreign corporation to review and dispose of a derivative proceeding. The standard of review of a decision made by the person or group to dismiss the derivative proceeding shall be governed by the laws of the jurisdiction of incorporation of the foreign corporation. (TBCA 5.14.K.) Sec. 21.563. CLOSELY HELD CORPORATION. (a) In this section, "closely held corporation" means a corporation that has: (1) fewer than 35 shareholders; and (2) no shares listed on a national securities exchange or regularly quoted in an over-the-counter market by one or more members of a national securities association. (b) Subject to Subsection (c), Sections 21.552-21.559 do not apply to a closely held corporation. (c) If justice requires: (1) a derivative proceeding brought by a shareholder of a closely held corporation may be treated by a court as a direct action brought by the shareholder for the shareholder's own benefit; and (2) a recovery in a direct or derivative proceeding by a shareholder may be paid directly to the plaintiff or to the corporation if necessary to protect the interests of creditors or other shareholders of the corporation. (TBCA 5.14.L.)
[Sections 21.564-21.600 reserved for expansion]
SUBCHAPTER M. AFFILIATED BUSINESS COMBINATIONS
Sec. 21.601. DEFINITIONS. In this subchapter: (1) "Issuing public corporation" means a domestic corporation that has: (A) 100 or more shareholders of record as shown by the share transfer records of the corporation; (B) a class or series of the corporation's voting shares registered under the Securities Exchange Act of 1934 (15 U.S.C. Section 77b et seq.), as amended; or (C) a class or series of the corporation's voting shares qualified for trading in a national market system. (2) "Person" includes two or more persons acting as a partnership, limited partnership, syndicate, or other group under an agreement, arrangement, or understanding, regardless of whether in writing, to acquire, hold, vote, or dispose of a corporation's shares. (3) "Share acquisition date" means the date a person initially becomes an affiliated shareholder of an issuing public corporation. (4) "Subsidiary" means a domestic or foreign corporation or other entity of which a majority of the outstanding voting shares are owned, directly or indirectly, by an issuing public corporation. (5) "Voting share" means a share of capital stock of a corporation that entitles the holder of the share to vote generally in the election of directors. (TBCA 13.02.A(6), (7), (8), (9), (10).) Sec. 21.602. AFFILIATED SHAREHOLDER. (a) For purposes of this subchapter, a person, other than the issuing public corporation or a wholly owned subsidiary of the issuing public corporation, is an affiliated shareholder if the person: (1) is the beneficial owner of 20 percent or more of the outstanding voting shares of the issuing public corporation; or (2) during the preceding three-year period, was the beneficial owner of 20 percent or more of the outstanding voting shares of the issuing public corporation. (b) To determine whether a person is an affiliated shareholder, the number of voting shares of the issuing public corporation considered outstanding includes shares considered beneficially owned by that person under Section 21.603, but does not include other unissued voting shares of the issuing public corporation that may be issuable under an agreement, arrangement, or understanding, or on exercise of conversion rights, warrants, or options. (TBCA 13.02.A(2).) Sec. 21.603. BENEFICIAL OWNER OF SHARES OR SIMILAR SECURITIES. (a) For purposes of this chapter, a person is a beneficial owner of shares or similar securities if the person individually, or through an affiliate or associate, beneficially owns, directly or indirectly, shares or similar securities. (b) A beneficial owner of shares or similar securities is entitled, individually or through an affiliate or associate, to: (1) acquire shares or similar securities that may be exercised immediately or after the passage of a certain amount of time according to an oral or written agreement, arrangement, or understanding, or on the exercise of conversion rights, exchange rights, warrants, or options; (2) vote the shares or similar securities according to an oral or written agreement, arrangement, or understanding; or (3) subject to Subsection (c), acquire, hold or dispose of, or vote shares or similar securities with another person who individually, or through an affiliate or associate, beneficially owns, directly or indirectly, the shares or similar securities. (c) A person is not considered a beneficial owner of shares or similar securities if: (1) the shares or similar securities are: (A) tendered under a tender or exchange offer made by the person or an affiliate or associate of the person before the tendered shares or securities are accepted for purchase or exchange; or (B) subject to an agreement, arrangement, or understanding that expressly conditions the acquisition or purchase of shares or securities on the approval of the acquisition or purchase under Section 21.606 if the person has no direct or indirect rights of ownership or voting with respect to the shares or securities until the time the approval is obtained; or (2) the agreement, arrangement, or understanding to vote the shares: (A) arises solely from an immediately revocable proxy that authorizes the person named in the proxy to vote at a meeting of the shareholders that has been called when the proxy is delivered or at an adjournment of the meeting; and (B) is not reportable on a Schedule 13D under the Securities Exchange Act of 1934 (15 U.S.C. Section 77b et seq.), as amended, or a comparable or successor report. (TBCA 13.02.A(3).) Sec. 21.604. BUSINESS COMBINATION. A business combination is: (1) a merger, share exchange, or conversion of an issuing public corporation or a subsidiary with: (A) an affiliated shareholder; (B) a foreign or domestic corporation or other entity that is, or after the merger, share exchange, or conversion would be, an affiliate or associate of the affiliated shareholder; or (C) another domestic or foreign corporation or other entity, if the merger, share exchange, or conversion is caused by an affiliated shareholder, or an affiliate or associate of an affiliated shareholder, and as a result of the merger, share exchange, or conversion this subchapter does not apply to the surviving corporation or other entity; (2) a sale, lease, exchange, mortgage, pledge, transfer, or other disposition, in one transaction or a series of transactions, including an allocation of assets under a merger, to or with the affiliated shareholder, or an affiliate or associate of the affiliated shareholder, of assets of the issuing public corporation or a subsidiary that: (A) has an aggregate market value equal to 10 percent or more of the aggregate market value of all of the assets, determined on a consolidated basis, of the issuing public corporation; (B) has an aggregate market value equal to 10 percent or more of the aggregate market value of all of the outstanding common stock of the issuing public corporation; or (C) represents 10 percent or more of the earning power or net income, determined on a consolidated basis, of the issuing public corporation; (3) the issuance or transfer by an issuing public corporation or a subsidiary to an affiliated shareholder or an affiliate or associate of the affiliated shareholder, in one transaction or a series of transactions, of shares of the issuing public corporation or a subsidiary, except by the exercise of warrants or rights to purchase shares of the issuing public corporation offered, or a share dividend paid, pro rata to all shareholders of the issuing public corporation after the affiliated shareholder's share acquisition date; (4) the adoption of a plan or proposal for the liquidation or dissolution of an issuing public corporation proposed by or under any agreement, arrangement, or understanding, regardless of whether in writing, with an affiliated shareholder or an affiliate or associate of the affiliated shareholder; (5) a reclassification of securities, including a reverse share split or a share split-up, share dividend, or other distribution of shares, a recapitalization of the issuing public corporation, a merger of the issuing public corporation with a subsidiary or pursuant to which the assets and liabilities of the issuing public corporation are allocated among two or more surviving or new domestic or foreign corporations or other entities, or any other transaction proposed by or under an agreement, arrangement, or understanding, regardless of whether in writing, with an affiliated shareholder or an affiliate or associate of the affiliated shareholder that has the effect, directly or indirectly, of increasing the proportionate ownership percentage of the outstanding shares of a class or series of voting shares or securities convertible into voting shares of the issuing public corporation that is beneficially owned by the affiliated shareholder or an affiliate or associate of the affiliated shareholder, except as a result of immaterial changes due to fractional share adjustments; or (6) the direct or indirect receipt by an affiliated shareholder or an affiliate or associate of the affiliated shareholder of the benefit of a loan, advance, guarantee, pledge, or other financial assistance or a tax credit or other tax advantage provided by or through the issuing public corporation, except proportionately as a shareholder of the issuing public corporation. (TBCA 13.02.A(4).) Sec. 21.605. CONTROL. (a) For purposes of this subchapter, a person has control of another person if the person has possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the other person, through the ownership of equity securities, by contract, or in another manner. (b) A person's beneficial ownership of 10 percent or more of a person's outstanding voting shares or similar interests creates a presumption that the person has control of the other person, but a person is not considered to have control of another person who holds the voting shares or similar interests in good faith and not to circumvent this part, as an agent, bank, broker, nominee, custodian, or trustee for one or more beneficial owners who do not individually or as a group have control of the person. (TBCA 13.02.A(5).) Sec. 21.606. THREE-YEAR MORATORIUM ON CERTAIN BUSINESS COMBINATIONS. An issuing public corporation may not, directly or indirectly, enter into or engage in a business combination with an affiliated shareholder, or any affiliate or associate of the affiliated shareholder, during the three-year period immediately following the affiliated shareholder's share acquisition date unless: (1) the business combination or the purchase or acquisition of shares made by the affiliated shareholder on the affiliated shareholder's share acquisition date is approved by the board of directors of the issuing public corporation before the affiliated shareholder's share acquisition date; or (2) the business combination is approved, by the affirmative vote of the holders of at least two-thirds of the outstanding voting shares of the issuing public corporation not beneficially owned by the affiliated shareholder or an affiliate or associate of the affiliated shareholder, at a meeting of shareholders called for that purpose not less than six months after the affiliated shareholder's share acquisition date. Approval may not be by written consent. (TBCA 13.03.) Sec. 21.607. APPLICATION OF MORATORIUM. Section 21.606 does not apply to: (1) a business combination of an issuing public corporation if: (A) the original articles of incorporation or original bylaws of the corporation contain a provision expressly electing not to be governed by this subchapter; (B) before December 31, 1997, the corporation adopted an amendment to the articles of incorporation or bylaws of the corporation expressly electing not to be governed by this subchapter; or (C) after December 31, 1997, the corporation adopts an amendment to the articles of incorporation or bylaws of the corporation, approved by the affirmative vote of the holders, other than an affiliated shareholder or an affiliate or associate of the affiliated shareholder, of at least two-thirds of the outstanding voting shares of the issuing public corporation, expressly electing not to be governed by this subchapter, except that the amendment to the articles of incorporation or bylaws takes effect 18 months after the date of the vote and does not apply to a business combination of the issuing public corporation with an affiliated shareholder whose share acquisition date is on or before the effective date of the amendment; (2) a business combination of an issuing public corporation with an affiliated shareholder who became an affiliated shareholder inadvertently, if the affiliated shareholder: (A) as soon as practicable divests itself of a sufficient number of the voting shares of the issuing public corporation so that the affiliated shareholder no longer is the beneficial owner, directly or indirectly, of 20 percent or more of the outstanding voting shares of the issuing public corporation; and (B) would not at any time within the three-year period preceding the announcement date of the business combination have been an affiliated shareholder except for the inadvertent acquisition; (3) a business combination with an affiliated shareholder who was the beneficial owner of 20 percent or more of the outstanding voting shares of the issuing public corporation on December 31, 1996, and continuously until the announcement date of the business combination; (4) a business combination with an affiliated shareholder who became an affiliated shareholder through a transfer of shares of the issuing public corporation by will or intestate succession and continuously was an affiliated shareholder until the announcement date of the business combination; or (5) a business combination of an issuing public corporation with a domestic wholly owned subsidiary if the domestic subsidiary is not an affiliate or associate of the affiliated shareholder for a reason other than the affiliated shareholder's beneficial ownership of voting shares in the issuing public corporation. (TBCA 13.04.) Sec. 21.608. EFFECT ON OTHER ACTIONS. (a) This subchapter does not affect, directly or indirectly, the validity of another action by the board of directors of an issuing public corporation. (b) This subchapter does not preclude the board of directors of an issuing public corporation from taking other action in accordance with law. (c) The board of directors of an issuing public corporation does not incur liability for an election made or not made under this subchapter. (TBCA 13.05.) Sec. 21.609. CONFLICTING PROVISIONS. If this subchapter conflicts with another provision of this code, this subchapter controls. (TBCA 13.07.A.) Sec. 21.610. CHANGE IN VOTING REQUIREMENTS. The affirmative vote or concurrence of shareholders required for approval of an action that is required to be submitted to a vote of the shareholders under this subchapter may be increased but not decreased under Section 21.365. (TBCA 13.07.B.)
[Sections 21.611-21.650 reserved for expansion]
SUBCHAPTER N. PROVISIONS RELATING TO INVESTMENT COMPANIES
Sec. 21.651. DEFINITION. In this subchapter, "investment company" means a corporation registered as an open-end company under the Investment Company Act. (TBCA 2.12.C(1) (part).) Sec. 21.652. ESTABLISHING CLASS OR SERIES OF SHARES; CHANGE IN NUMBER OF SHARES. (a) In addition to the actions the board may undertake under Subchapters D, E, and F, the board of directors of an investment company may: (1) establish classes of shares and series of unissued shares of a class by setting and determining the designations, preferences, limitations, and relative rights, including voting rights, of the shares of the class or series established under this subdivision to the same extent that the designations, preferences, limitations, and relative rights could be stated if fully stated in the certificate of formation; and (2) increase or decrease the aggregate number of shares or the number of shares of, or delete from the investment company's certificate of formation, a class or series of shares the corporation has authority to issue, unless a provision has been included in the certificate of formation of the corporation after September 1, 1993, expressly prohibiting those actions by the board of directors. (b) The board of directors of an investment company may not: (1) decrease the number of shares in a class or series to a number that is less than the number of shares of that class or series that are outstanding at the time; or (2) delete from the certificate of formation a reference to a class or series that has shares outstanding at the time. (c) To establish a class or series under this section, the board of directors must adopt a resolution stating the designation of the class or series and setting and determining the designations, preferences, limitations, and relative rights, including voting rights, of the class or series. (d) To increase or decrease the number of shares of a class or series of shares or to delete from the certificate of formation a reference to a class or series of shares, the board of directors of an investment company must adopt a resolution setting and determining the new number of shares of each class or series in which the number of shares is increased or decreased or deleting the class or series and any reference to the class or series from the certificate of formation. The shares of a series removed from the certificate of formation shall resume the status of authorized but unissued shares of the class of shares from which the series was established unless otherwise provided by the resolution or the certificate of formation of the investment company. (TBCA 2.12.C(1).) Sec. 21.653. REQUIRED STATEMENT RELATING TO SHARES. (a) Before the first issuance of shares of a class or series established or increased or decreased by resolution adopted by the board of directors of an investment company under Section 21.652, and to delete from the investment company's certificate of formation a class or series of shares and all references to the class or series contained in the certificate of formation, the investment company shall file with the secretary of state a statement that contains: (1) the name of the investment company; (2) if the statement relates to the establishment of a class or series of shares, a copy of the resolution establishing and designating the class or series or establishing and designating the class or series and setting and determining the preferences, limitations, and relative rights of the class or series; (3) if the statement relates to an increase or decrease in the number of shares of a class or series, a copy of the resolution setting and determining the new number of shares of each class or series in which the number of shares is increased or decreased; (4) if the statement relates to the deletion of a class or series of shares and all references to the class or series from the certificate of formation, a copy of the resolution deleting the class or series and all references to the class or series from the certificate of formation; (5) the date of adoption of the resolution; and (6) a statement that the resolution was adopted by all necessary action on the part of the investment company. (b) After the statement described by Subsection (a) is filed, a resolution adopted under Section 21.652 becomes an amendment of the certificate of formation. An amendment of the certificate of formation described under this section is not subject to the procedure to amend the certificate of formation contained in Subchapter B. (TBCA 2.12.C(2), (4).) Sec. 21.654. TERM OF OFFICE OF DIRECTORS. Unless removed in accordance with the certificate of formation or bylaws of the investment company, a director of an investment company shall serve as director for the term for which the director is elected and holds office until a successor is elected and qualifies. (TBCA 2.32.D.) Sec. 21.655. MEETINGS OF SHAREHOLDERS. (a) If provided by the certificate of formation or bylaws of an investment company, the investment company is not required to hold an annual meeting of shareholders or elect directors in a year in which an election of directors is not required under the Investment Company Act. (b) If an investment company is required to hold a meeting of shareholders to elect directors under the Investment Company Act, the meeting shall be designated as the annual meeting of shareholders for that year. (TBCA 2.24.D.)
[Sections 21.656-21.700 reserved for expansion]
SUBCHAPTER O. CLOSE CORPORATION
Sec. 21.701. DEFINITIONS. In this subchapter: (1) "Close corporation" means a domestic corporation formed under this subchapter. (2) "Close corporation provision" means a provision in the certificate of formation of a close corporation or in a shareholders' agreement of a close corporation. (3) "Ordinary corporation" means a domestic corporation that is not a close corporation. (4) "Shareholders' agreement" means a written agreement regulating an aspect of the business and affairs of or the relationship among the shareholders of a close corporation that has been executed under this subchapter. (TBCA 12.02.A.) Sec. 21.702. APPLICABILITY OF SUBCHAPTER. (a) This subchapter applies only to a close corporation. (b) This chapter applies to a close corporation to the extent not inconsistent with this subchapter. (TBCA 12.03.) Sec. 21.703. FORMATION OF CLOSE CORPORATION. A close corporation shall be formed in accordance with Chapter 3. (TBCA 12.12.) Sec. 21.704. BYLAWS OF CLOSE CORPORATION. (a) A close corporation does not need to adopt bylaws if provisions required by law to be contained in the bylaws are contained in the certificate of formation or a shareholders' agreement. (b) A close corporation that does not have bylaws when it terminates its status as a close corporation under Section 21.708 shall immediately adopt bylaws that comply with Section 21.057. (TBCA 12.15.) Sec. 21.705. ADOPTION OF AMENDMENT FOR CLOSE CORPORATION STATUS. (a) An ordinary corporation may become a close corporation by amending its certificate of formation in accordance with Chapter 3 to conform with Section 3.008. (b) An amendment adopting close corporation status must be approved by the affirmative vote of the holders of all of the outstanding shares of each class established by the close corporation, regardless of whether a class is entitled to vote on the amendment by the certificate of formation of the ordinary corporation. (TBCA 12.13.A.) Sec. 21.706. ADOPTION OF CLOSE CORPORATION STATUS THROUGH MERGER, EXCHANGE, OR CONVERSION. (a) A surviving or new corporation resulting from a merger or conversion or a corporation that acquires a corporation under an exchange under Chapter 10 may become a close corporation if, as part of the plan of merger, exchange, or conversion, the certificate of formation conforms with Section 3.008. (b) A plan of merger, exchange, or conversion adopting close corporation status must be approved by the affirmative vote of the holders of all of the outstanding ownership or membership interests, and of each class or series of ownership or membership interests, of each entity or non-code organization that is party to the merger, exchange, or conversion, regardless of whether a class or series of ownership or membership interests is entitled to vote on the plan by the certificate of formation of the corporation. (TBCA 12.13.B.) Sec. 21.707. EXISTING CLOSE CORPORATION. (a) This section applies to an existing corporation that elected to become a close corporation before the effective date of this code and has not terminated that status. (b) A close corporation existing before the effective date of this code is considered to be a close corporation under this code. (c) A provision in the articles of incorporation of a close corporation authorized under former law is valid and enforceable if the corporation's status as a close corporation has not been terminated. (d) An agreement among the shareholders of a close corporation in conformance with former law and Sections 21.714-21.725 before the effective date of this code is considered to be a shareholders' agreement. (e) A certificate representing the shares issued or delivered by the close corporation after the effective date of this code, whether in connection with the original issue of shares or a transfer of shares, must conform with Section 21.732. (TBCA 12.14.) Sec. 21.708. TERMINATION OF CLOSE CORPORATION STATUS. A close corporation may terminate its status as a close corporation by: (1) filing a statement terminating close corporation status under Section 21.709; (2) amending the close corporation's certificate of formation under Chapter 3 by deleting from the certificate of formation the statement that it is a close corporation; (3) engaging in a merger, interest exchange, or conversion under Chapter 10, unless the plan of merger, exchange, or conversion provides that the surviving or new corporation will continue as or become a close corporation and the plan has been approved by the affirmative vote or consent of the holders of all of the outstanding shares, and of each class and series of shares, of the close corporation, regardless of whether a class or series of shares is entitled to vote on the plan by the certificate of formation; or (4) instituting a judicial proceeding to enforce a close corporation provision providing for the termination. (TBCA 12.21.) Sec. 21.709. STATEMENT TERMINATING CLOSE CORPORATION STATUS; FILING; NOTICE. (a) If a close corporation provision specifies a time or event requiring the termination of close corporation status, regardless of whether the provision is identifiable by a person dealing with the close corporation, the termination of the close corporation status takes effect on the occurrence of the specified time or event and the filing of a statement terminating close corporation status under this section. (b) Promptly after the time or occurrence of an event requiring termination of close corporation status, a statement terminating close corporation status shall be signed by an officer on behalf of the close corporation. A copy of the applicable close corporation provision must be included in or attached to the statement. The statement and any attachment shall be filed with the secretary of state in accordance with Chapter 4. (c) The statement terminating close corporation status must contain: (1) the name of the corporation; (2) a statement that the corporation has terminated its status as a close corporation in accordance with the included or attached close corporation provision; and (3) the time or event that caused the termination and, in the case of an event, the approximate date of the event. (d) After a statement terminating close corporation status has been filed under this section, the certificate of formation of the close corporation is considered to be amended to delete from the certificate the statement that the corporation is a close corporation, and the corporation's status as a close corporation is terminated. (e) The corporation shall personally deliver or mail a copy of the statement to each shareholder of the corporation. A copy of the statement is considered to have been delivered by mail under this section when the copy is deposited in the United States mail, with postage prepaid, addressed to the shareholder at the shareholder's address as it appears on the share transfer records of the corporation. The failure to deliver the copy of the statement does not affect the validity of the termination. (TBCA 12.22.A, B, D, E.) Sec. 21.710. EFFECT OF TERMINATION OF CLOSE CORPORATION STATUS. (a) A close corporation that terminates its status as a close corporation and becomes an ordinary corporation is subject to this chapter as if the corporation had not elected close corporation status under this subchapter. (b) The effect of termination of close corporation status on a shareholders' agreement is governed by Section 21.724. (c) When the termination of close corporation status takes effect, if the close corporation's business and affairs have been managed by an entity other than a board of directors as provided by Section 21.725, governance by a board of directors is instituted or reinstated: (1) if provided by a shareholders' agreement, in the manner stated in the agreement or by the persons named in the agreement to serve as the interim board of directors; or (2) if each party to a shareholders' agreement agrees to elect a board of directors at a shareholders' meeting. (TBCA 12.23.A, B, C.) Sec. 21.711. SHAREHOLDERS' MEETING TO ELECT DIRECTORS. A shareholders' meeting required by Section 21.710(c)(2) shall be promptly called after the termination of close corporation status takes effect. If a meeting is not called before the 31st day after the date the termination takes effect, a shareholder may call a shareholders' meeting on the provision of notice required by Section 21.353, regardless of whether the shareholder is entitled to call a shareholders' meeting or vote at the meeting. At the meeting, the shareholders shall elect the number of directors specified in the certificate of formation or bylaws of the corporation or, in the absence of any specification, three directors. (TBCA 12.23.D.) Sec. 21.712. TERM OF OFFICE OF DIRECTORS. A director succeeding to the management of the corporation under Section 21.710(c) shall have a term of office as set forth in Section 21.408. Until a board of directors is elected, the shareholders of the corporation shall act as the corporation's board of directors, and the business and affairs of the corporation shall be conducted under Section 21.726. (TBCA 12.23.E.) Sec. 21.713. MANAGEMENT. A close corporation shall be managed: (1) by a board of directors in the same manner an ordinary corporation would be managed under this chapter; or (2) in the manner provided by the close corporation's certificate of formation or by a shareholders' agreement of the close corporation. (TBCA 12.31.) Sec. 21.714. SHAREHOLDERS' AGREEMENT. (a) The shareholders of a close corporation may enter into one or more shareholders' agreements. (b) The business and affairs of a close corporation or the relationships among the shareholders that may be regulated by a shareholders' agreement include: (1) the management of the business and affairs of the close corporation by its shareholders, with or without a board of directors; (2) the management of the business and affairs of the close corporation wholly or partly by one or more of its shareholders or other persons; (3) buy-sell, first option, first refusal, or similar arrangements with respect to the close corporation's shares or other securities, and restrictions on the transfer of the shares or other securities, including more restrictions than those permitted by Section 21.211; (4) the declaration and payment of dividends or other distributions in amounts authorized by Subchapter G, regardless of whether the distribution is in proportion to ownership of shares; (5) the manner in which profits or losses shall be apportioned; (6) restrictions placed on the rights of a transferee or assignee of shares to participate in the management or administration of the close corporation's business and affairs during the term of the shareholders' agreement; (7) the right of one or more shareholders to cause the winding up and termination of the close corporation at will or on the occurrence of a specified event or contingency, in which case the winding up and termination of the close corporation shall proceed as if all of the shareholders of the close corporation had consented in writing to winding up and termination as provided by Chapter 11; (8) the exercise or division of voting power either in general or with regard to specified matters by or among the shareholders of the close corporation or other persons, including: (A) voting agreements and voting trusts that do not conform with Section 6.251 or 6.252; (B) requiring the vote or consent of the holders of a larger or smaller number of shares than is otherwise required by this chapter or other law, including an action for termination of close corporation status; (C) granting one or some other specified number of votes for each shareholder; and (D) permitting an action for which this chapter requires approval by the vote of the board of directors or the shareholders of an ordinary corporation, or both, to be taken without a vote, in the manner provided by the shareholders' agreement; (9) the terms and conditions of employment of a shareholder, director, officer, or other employee of the close corporation, regardless of the length of the period of employment; (10) the individuals who will serve as directors, if any, and officers of the close corporation; (11) the arbitration or mediation of issues about which the shareholders may become deadlocked in voting or about which the directors or those empowered to manage the close corporation may become deadlocked and the shareholders are unable to break the deadlock; (12) the termination of close corporation status, including a right of dissent or other rights that may be granted to shareholders who object to the termination; (13) qualifications of persons who are or are not entitled to be shareholders of the close corporation; (14) amendments to or termination of the shareholders' agreement; and (15) any provision required or permitted to be contained in the bylaws by this chapter. (TBCA 12.32.) Sec. 21.715. EXECUTION OF SHAREHOLDERS' AGREEMENT. A shareholders' agreement shall be executed: (1) in the case of an existing close corporation, by each shareholder at the time of execution, regardless of whether the shareholder has voting power; (2) in the case of an existing ordinary corporation that will adopt close corporation status under Section 21.705, by each shareholder at the time of execution, regardless of whether the shareholder has voting power; or (3) in the case of a close corporation that is being formed under Section 21.703, by each person who is a subscriber to the corporation's shares or agrees to become a holder of the corporation's shares under the shareholders' agreement of the close corporation. (TBCA 12.33.A.) Sec. 21.716. ADOPTION OF AMENDMENT OF SHAREHOLDERS' AGREEMENT. Unless otherwise provided by a shareholders' agreement, an amendment to the shareholders' agreement of a close corporation may be adopted only by the written consent of each person who would be required to execute the shareholders' agreement if it were being executed originally at the time of adoption of the amendment, regardless of whether the person has voting power in the close corporation. (TBCA 12.33.B.) Sec. 21.717. DELIVERY OF SHAREHOLDERS' AGREEMENT. (a) The close corporation shall deliver a complete copy of a shareholders' agreement to: (1) each person who is bound by the shareholders' agreement; (2) each person who is or will become a shareholder in the close corporation as provided by Section 21.715 when a certificate representing shares in the close corporation is delivered to the person; and (3) each person to whom a certificate representing shares is issued and who has not received a complete copy of the agreement. (b) The failure to deliver a complete copy of a shareholders' agreement as required by this section does not affect the validity or enforceability of the shareholders' agreement. (TBCA 12.33.C.) Sec. 21.718. STATEMENT OF OPERATION AS CLOSE CORPORATION. (a) On or after the formation of a close corporation or adoption of close corporation status, a close corporation that begins to conduct its business and affairs under a shareholders' agreement that has become effective shall promptly execute and file with the secretary of state a statement of operation as a close corporation in accordance with Chapter 4. (b) The statement required by Subsection (a) must: (1) contain the name of the close corporation; (2) state that the close corporation is being operated and its business and affairs are being conducted under the terms of a shareholders' agreement under this subchapter; and (3) contain the date the operation of the corporation began. (c) A statement of operation as a close corporation shall be executed by an officer on behalf of the corporation. (d) On the filing of the statement of operation as a close corporation, the fact that the close corporation is being operated and its business and affairs are being conducted under the terms of a shareholders' agreement becomes a matter of public record. (TBCA 12.34.A, B, D.) Sec. 21.719. VALIDITY AND ENFORCEABILITY OF SHAREHOLDERS' AGREEMENT. (a) A shareholders' agreement executed in accordance with Section 21.715 is valid and enforceable notwithstanding: (1) the elimination of a board of directors; (2) any restriction imposed on the discretion or powers of the board of directors or other person empowered to manage the close corporation; and (3) that the effect of the shareholders' agreement is to treat the business and affairs of the close corporation as if the close corporation were a partnership or in a manner that would otherwise be appropriate only among partners. (b) A close corporation, a shareholder of the close corporation, or a party to a shareholders' agreement may initiate a proceeding to enforce the shareholders' agreement in accordance with Section 21.756. (TBCA 12.35.) Sec. 21.720. PERSONS BOUND BY SHAREHOLDERS' AGREEMENT. (a) A shareholders' agreement executed in accordance with Section 21.715 is: (1) considered to be an agreement among all of the shareholders of the close corporation; and (2) binding on and enforceable against each shareholder of the close corporation, regardless of whether: (A) a particular shareholder acquired shares in the close corporation by purchase, gift, bequest, or otherwise; or (B) the shareholder had actual knowledge of the existence of the shareholders' agreement at the time of acquiring shares. (b) A transferee or assignee of shares of a close corporation in which there is a shareholders' agreement is bound by the agreement for all purposes, regardless of whether the transferee or assignee executed or was aware of the agreement. (TBCA 12.36.A.) Sec. 21.721. DELIVERY OF COPY OF SHAREHOLDERS' AGREEMENT TO TRANSFEREE. (a) Before the transfer of shares of a close corporation in which there is a shareholders' agreement, the transferor shall deliver a complete copy of the shareholders' agreement to the transferee. (b) If the transferor fails to deliver a complete copy of the shareholders' agreement: (1) the validity and enforceability of the shareholders' agreement against each shareholder of the corporation, including the transferee, is not affected; (2) the right, title, or interest of the transferee in the transferred shares is not adversely affected; and (3) the transferee is entitled to obtain on demand from the transferor or from the close corporation a complete copy of the shareholders' agreement at the transferor's expense. (TBCA 12.36.B.) Sec. 21.722. EFFECT OF REQUIRED STATEMENT ON SHARE CERTIFICATE AND DELIVERY OF SHAREHOLDERS' AGREEMENT. If a certificate representing shares of a close corporation contains the statement required by Section 21.732, and a complete copy of each shareholders' agreement has been delivered as required by Section 21.717, each holder, transferee, or other person claiming an interest in the shares of the close corporation is conclusively presumed to have knowledge of a close corporation provision in effect at the time of the transfer. (TBCA 12.36.C.) Sec. 21.723. PARTY NOT BOUND BY SHAREHOLDERS' AGREEMENT ON CESSATION; LIABILITY. (a) Notwithstanding the person's signature, a person ceases to be a party to, and bound by, a shareholders' agreement when the person ceases to be a shareholder of the close corporation unless: (1) the person's attempted cessation was in violation of Section 21.721 or the shareholders' agreement; or (2) the shareholders' agreement provides to the contrary. (b) Cessation as a party to a shareholders' agreement or as a shareholder does not relieve a person of liability the person may have incurred for breach of the shareholders' agreement. (TBCA 12.36.D.) Sec. 21.724. TERMINATION OF SHAREHOLDERS' AGREEMENT. (a) Except as provided by Subsection (b), a shareholders' agreement terminates when the close corporation terminates its status as a close corporation. (b) If provided by the shareholders' agreement, all or part of the agreement is valid and enforceable to the extent permitted for an ordinary corporation by this chapter or other law. (TBCA 12.36.E.) Sec. 21.725. CONSEQUENCES OF MANAGEMENT BY PERSONS OTHER THAN BOARD OF DIRECTORS. Sections 21.726-21.729 apply only to a close corporation the business and affairs of which are managed wholly or partly by the shareholders of the close corporation or any other person as provided by a shareholders' agreement rather than solely by a board of directors. (TBCA 12.37.A.) Sec. 21.726. SHAREHOLDERS CONSIDERED DIRECTORS. (a) When required by the context of this chapter, the shareholders of a close corporation described by Section 21.725 are considered to be directors of the close corporation for purposes of applying a provision of this chapter, other than a provision relating to the election and removal of directors. (b) A requirement that an instrument filed with a governmental agency contain a statement that a specified action has been taken by the board of directors is satisfied by a statement that: (1) the corporation is a close corporation with no board of directors; and (2) the action was approved by the shareholders of the close corporation or the persons empowered to manage the business and affairs of the close corporation under a shareholders' agreement. (TBCA 12.37.B.) Sec. 21.727. LIABILITY OF SHAREHOLDERS. The shareholders of a close corporation described by Section 21.725 are subject to any liability imposed on a director of a corporation by this chapter or other law for a managerial act of or omission made by the shareholders or any other person empowered to manage the business and affairs of the close corporation under a shareholders' agreement and relating to the business and affairs of the close corporation, if the action is required by law to be undertaken by the board of directors. (TBCA 12.37.C.) Sec. 21.728. MODE AND EFFECT OF TAKING ACTION BY SHAREHOLDERS AND OTHERS. (a) An action that shall or may be taken by the board of directors of an ordinary corporation as required or authorized by this chapter shall or may be taken by action of the shareholders of a close corporation described by Section 21.725 at a meeting of the shareholders or, in the manner permitted by a shareholders' agreement, this subchapter, or this chapter, without a meeting. (b) Unless otherwise provided by the certificate of formation of the close corporation or a shareholders' agreement of the close corporation, an action is binding on a close corporation if the action is taken after: (1) the affirmative vote of the holders of the majority of all outstanding shares entitled to vote on the action; or (2) the consent of all of the shareholders of the close corporation, which may be proven by: (A) the full knowledge of the action by all of the shareholders and the shareholders' failure to object to the action in a timely manner; (B) written consent to the action in accordance with Section 6.201 or this chapter or any other writing executed by or on behalf of all of the shareholders reasonably evidencing the consent; or (C) any other means reasonably evidencing the consent. (TBCA 12.37.D.) Sec. 21.729. LIMITATION OF SHAREHOLDER'S LIABILITY. (a) A shareholder of a close corporation described by Section 21.725 is not liable because of a shareholders' vote or shareholder action without a vote unless the shareholder had the right to vote or consent to the action. (b) A shareholder of a close corporation, without regard to the right to vote or consent, may not be held liable for an action taken by the shareholders or a person empowered to manage the business and affairs of the close corporation under a shareholders' agreement if the shareholder dissents from and has not voted for or consented to the action. (c) The dissent of a shareholder may be proven by: (1) an entry in the minutes of the meeting of shareholders; (2) a written dissent filed with the secretary of the meeting before the adjournment of the meeting; (3) a written dissent sent by registered mail to the secretary of the close corporation promptly after the meeting or after a written consent was obtained from the other shareholders; or (4) any other means reasonably evidencing the dissent. (TBCA 12.37.E.) Sec. 21.730. LACK OF FORMALITIES; TREATMENT AS PARTNERSHIP. The failure of a close corporation under this subchapter to observe a usual formality or requirement prescribed for an ordinary corporation by this chapter relating to the exercise of corporate powers or the management of a corporation's business and affairs and the performance of a shareholders' agreement that treats the close corporation as if the corporation were a partnership or in a manner that otherwise is appropriate only among partners may not: (1) be a factor in determining whether to impose personal liability on the shareholders for the close corporation's obligations by disregarding the separate entity of the close corporation or otherwise; (2) be grounds for invalidating an otherwise valid shareholders' agreement; or (3) affect the status of the close corporation as a corporation under this chapter or other law. (TBCA 12.37.F.) Sec. 21.731. OTHER AGREEMENTS AMONG SHAREHOLDERS PERMITTED. Sections 21.713-21.730 do not prohibit or impair any other agreement between two or more shareholders of an ordinary corporation permitted by this chapter or other law. (TBCA 12.38.) Sec. 21.732. CLOSE CORPORATION SHARE CERTIFICATES. (a) In addition to a matter required or authorized by law to be stated on a certificate representing shares, each certificate representing shares issued by a close corporation must conspicuously state on the front or back of the certificate: "These shares are issued by a close corporation as defined by the Texas Business Organizations Code. Under Chapter 21 of that code, a shareholders' agreement may provide for management of a close corporation by the shareholders or in other ways different from an ordinary corporation. This may subject the holder of this certificate to certain obligations and liabilities not otherwise imposed on shareholders of an ordinary corporation. On a sale or transfer of these shares, the transferor is required to deliver to the transferee a complete copy of any shareholders' agreement." (b) Notwithstanding this chapter and Section 3.202, the status of a corporation as a close corporation is not affected by the failure of a share certificate to contain the statement required by Subsection (a). (TBCA 12.39.)
[Sections 21.733-21.750 reserved for expansion]
SUBCHAPTER P. JUDICIAL PROCEEDINGS RELATING TO
CLOSE CORPORATION
Sec. 21.751. DEFINITIONS. In this subchapter: (1) "Court" means a district court in the county in which the principal office of the close corporation is located. (2) "Custodian" means a person appointed by a court under Section 21.761. (3) "Provisional director" means a person appointed by a court under Section 21.758. (4) "Shareholder" means a record or beneficial owner of shares in a close corporation, including: (A) a person holding a beneficial interest in the shares under an inter vivos, testamentary, or voting trust; or (B) the personal representative, as defined by the Texas Probate Code, of a record or beneficial owner. (TBCA 12.51.A.) Sec. 21.752. PROCEEDINGS AUTHORIZED. In addition to any other judicial proceeding pertaining to an ordinary corporation provided for by this chapter or other law, a close corporation or shareholder may institute a proceeding in a district court in the county in which the principal office of the close corporation is located to: (1) enforce a close corporation provision; (2) appoint a provisional director; or (3) appoint a custodian. (TBCA 12.51.B.) Sec. 21.753. NOTICE; INTERVENTION. (a) Notice of the institution of a proceeding shall be given to the close corporation, if the corporation is not a plaintiff, and to each shareholder who is not a plaintiff in the manner prescribed by law and consistent with due process of law as directed by the court. (b) The close corporation or a shareholder of the close corporation may intervene in the proceeding. (TBCA 12.51.C.) Sec. 21.754. PROCEEDING NONEXCLUSIVE. Except as provided by Section 21.755, the right of a close corporation or a shareholder to institute a proceeding under Section 21.752 is in addition to another right or remedy the plaintiff is entitled to under law. (TBCA 12.51.D.) Sec. 21.755. UNAVAILABILITY OF JUDICIAL PROCEEDING. (a) A shareholder may not institute a proceeding before exhausting any nonjudicial remedy contained in a close corporation provision for resolution of an issue that is in dispute unless the shareholder proves that the close corporation, the shareholders as a whole, or the shareholder will suffer irreparable harm before the nonjudicial remedy is exhausted. (b) A shareholder may not institute a proceeding to seek damages or other monetary relief if the shareholder is entitled to dissent from a proposed action and receive the fair value of the shareholder's shares under this code or a shareholders' agreement. (TBCA 12.51.E.) Sec. 21.756. JUDICIAL PROCEEDING TO ENFORCE CLOSE CORPORATION PROVISION. (a) In a judicial proceeding under this section, a court shall enforce a close corporation provision without regard to whether there is an adequate remedy at law. (b) The court may enforce a close corporation provision by injunction, specific performance, or other relief the court determines to be fair and equitable under the circumstances, including: (1) damages instead of or in addition to specific enforcement; (2) the appointment of a provisional director or custodian; (3) the appointment of a receiver for specific assets of the close corporation in accordance with Section 11.403; (4) the appointment of a receiver to rehabilitate the close corporation in accordance with Section 11.404; (5) subject to Section 21.757, the liquidation of the assets and business and involuntary termination of the close corporation and appointment of a receiver to effect the liquidation in accordance with Section 11.405; and (6) the termination of close corporation status. (c) The court may not order termination of close corporation status under Subsection (b)(6) unless the court determines that: (1) any other remedy in law or equity, including appointment of a provisional director, custodian, or other type of receiver, is inadequate; and (2) the size, the nature of the business, or the number of shareholders of the close corporation, or their relationship to one another or other similar factors, make it wholly impractical to continue close corporation status. (TBCA 12.52.A.) Sec. 21.757. LIQUIDATION; INVOLUNTARY WINDING UP AND TERMINATION; RECEIVERSHIP. Except as provided by Section 21.756, in a case in which a shareholder is entitled to wind up and terminate a close corporation under a shareholders' agreement, a court may not order liquidation, involuntary termination, or receivership under that section unless the court determines that any other remedy in law or equity, including appointment of a provisional director, custodian, or other type of receiver, is inadequate. (TBCA 12.52.B.) Sec. 21.758. APPOINTMENT OF PROVISIONAL DIRECTOR. (a) In a judicial proceeding under this section, a court shall appoint a provisional director for a close corporation on presentation of proof that the directors or the persons empowered to manage the business and affairs of the close corporation under a shareholders' agreement are so divided with respect to the management of the business and affairs of the close corporation that the required votes or consent to take action on behalf of the close corporation cannot be obtained, resulting in the business and affairs being conducted in a manner that is not to the general advantage of the shareholders. (b) The provisional director must be an impartial person who is not a shareholder, a party to a shareholders' agreement, a person empowered to manage the close corporation under a shareholders' agreement, or a creditor of the close corporation or of a subsidiary or affiliate of the close corporation. The court shall determine any further qualifications. (c) A provisional director shall serve until removed by court order or by a vote of the majority of the directors or the holders of the majority of the shares with voting power, or by a vote of a different number, not fewer than the majority, of shareholders or directors if a close corporation provision requires the concurrence of a larger or different majority for action by the directors or shareholders. (TBCA 12.53.A, B (part).) Sec. 21.759. RIGHTS AND POWERS OF PROVISIONAL DIRECTOR. A provisional director has all the rights and powers of an elected director of the close corporation, or the rights of vote or consent of a shareholder and other rights and powers of shareholders or other persons who have been empowered to manage the business and affairs of the close corporation under a shareholders' agreement with the voting power provided by court order, including the right to notice of, and to vote at, meetings of directors or shareholders. (TBCA 12.53.B (part).) Sec. 21.760. COMPENSATION OF PROVISIONAL DIRECTOR. (a) The compensation of a provisional director shall be determined by an agreement between the provisional director and the close corporation, subject to court approval. (b) The court may set the compensation in the absence of an agreement or in the event of a disagreement between the provisional director and the close corporation. (TBCA 12.53.B (part).) Sec. 21.761. APPOINTMENT OF CUSTODIAN. (a) In a judicial proceeding under this section, a court shall appoint a custodian for a close corporation on presentation of proof that: (1) at a meeting held for the election of directors, the shareholders are so divided that the shareholders have failed to elect successors to directors whose terms have expired or would have expired on qualification of a successor; (2) the business of the close corporation is suffering or is threatened with irreparable injury because the directors, or the shareholders or the persons empowered to manage the business and affairs of the close corporation under a shareholders' agreement, are so divided with respect to the management of the business and affairs of the close corporation that the required vote or consent to take action on behalf of the close corporation cannot be obtained and a remedy with respect to the deadlock in a close corporation provision has failed; or (3) the plaintiff or intervenor has the right to wind up and terminate the close corporation under a shareholders' agreement as provided by Section 21.714. (b) To be eligible to serve as a custodian, a person must comply with all the qualifications required to serve as a receiver under Section 11.406. (TBCA 12.54.A, B (part).) Sec. 21.762. POWERS AND DUTIES OF CUSTODIAN. A person who qualifies as a custodian has all of the powers and duties and the title of a receiver appointed under Sections 11.404-11.406. The custodian shall continue the business of the close corporation and may not liquidate the affairs or distribute the assets of the close corporation, except as provided by court order or Section 21.761(a)(3). (TBCA 12.54.B (part).) Sec. 21.763. TERMINATION OF CUSTODIANSHIP. If the condition requiring the appointment of a custodian is remedied other than by liquidation or winding up and termination, the court shall terminate the custodianship immediately and management of the close corporation shall be restored to the directors or shareholders of the close corporation or to the persons empowered to manage the business and affairs of the close corporation under a shareholders' agreement. (TBCA 12.54.B (part).)
[Sections 21.764-21.800 reserved for expansion]
SUBCHAPTER Q. MISCELLANEOUS PROVISIONS
Sec. 21.801. SHARES AND OTHER SECURITIES ARE PERSONAL PROPERTY. Except as otherwise provided by this code, the shares and other securities of a corporation are personal property. (TBCA 2.22.A (part).) Sec. 21.802. PENALTIES FOR LATE FILING OF CERTAIN INSTRUMENTS. (a) A person required under Title 1 or this title to file a change of registered office or agent, a certificate of voluntary withdrawal, or a certificate of termination for a corporation commits an offense if the person does not file the required filing with the secretary of state before the earlier of: (1) the 30th day after the date of the change, withdrawal, or termination; or (2) the date the filing is otherwise required by law. (b) A person who violates Subsection (a) is liable to the state for a civil penalty in an amount not to exceed $2,500 for each violation. In determining the amount of a penalty under this subsection, the court shall consider all the circumstances giving rise to the offense. The attorney general or the prosecuting attorney in the county in which the violation occurs may bring suit to recover the civil penalty imposed under this section. (c) The attorney general may bring an action in the name of the state to restrain or enjoin a person from violating this section. (d) In an action or proceeding brought against a person who has not complied with this section, the plaintiff or other party bringing the suit or proceeding may recover, at the court's discretion, reasonable costs and attorney's fees incurred by locating and effecting service of process on the person. Any damages recovered must be in conjunction with a pending action or proceeding and shall be awarded as costs under the Texas Rules of Civil Procedure. This section does not create a private independent cause of action for failure to comply with this section. (e) A person who is entitled to recover damages under Subsection (d) may request from the attorney general nonconfidential information on the other person for the purpose of effecting service of process. The attorney general shall comply with a request made under this subsection to the extent practicable. (TBCA 9.07.B, C, D, E, F.)
CHAPTER 22. NONPROFIT CORPORATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 22.001. DEFINITIONS. In this chapter: (1) "Board of directors" means the group of persons vested with the management of the affairs of the corporation, regardless of the name used to designate the group. (2) "Bylaws" means the rules adopted to regulate or manage the corporation, regardless of the name used to designate the rules. (3) "Corporation" or "domestic corporation" means a domestic nonprofit corporation subject to this chapter. (4) "Foreign corporation" means a foreign nonprofit corporation. (5) "Nonprofit corporation" means a corporation no part of the income of which is distributable to a member, director, or officer of the corporation. (6) "Ordinary care" means the care that an ordinarily prudent person in a similar position would exercise under similar circumstances. (TNPCA 1.02.A(1), (2), (3), (5), (7), (15).) Sec. 22.002. MEETINGS BY REMOTE COMMUNICATIONS TECHNOLOGY. Subject to the provisions of this code and the certificate of formation and bylaws of a corporation, a meeting of the members of a corporation, the board of directors of a corporation, or any committee designated by the board of directors of a corporation may be held by means of a remote electronic communications system, including videoconferencing technology or the Internet, only if: (1) each person entitled to participate in the meeting consents to the meeting being held by means of that system; and (2) the system provides access to the meeting in a manner or using a method by which each person participating in the meeting can communicate concurrently with each other participant. (TNPCA 9.11.A.)
[Sections 22.003-22.050 reserved for expansion]
SUBCHAPTER B. PURPOSES AND POWERS
Sec. 22.051. GENERAL PURPOSES. A nonprofit corporation may be formed for any lawful purpose or purposes not expressly prohibited under this chapter or Chapter 2, including any purpose described by Section 2.002. (TNPCA 2.01.A (part).) Sec. 22.052. DENTAL HEALTH SERVICE CORPORATION. (a) A charitable corporation may be formed to operate a dental health service corporation that manages and coordinates the relationship between a dentist who contracts to perform dental services and a patient who will receive the services as a member of a group that contracted with the dental health service corporation to provide dental care to group members. (b) The certificate of formation for a charitable corporation formed under this section must have attached as an exhibit: (1) an affidavit of the organizer or organizers stating: (A) that not less than 30 percent of the dentists legally engaged in the practice of dentistry in this state have signed a contract to perform the required dental services for a period of at least one year after incorporation; and (B) the names and addresses of those dentists; and (2) a certification by the State Board of Dental Examiners that: (A) the applicants are reputable residents of this state of good moral character; and (B) the corporation will be in the best interest of the public health. (c) A corporation formed under this section must have at least 12 directors, including 9 directors who are licensed to practice dentistry in this state and are actively engaged in the practice of dentistry in this state. (d) A corporation formed under this section shall maintain as participating or contracting dentists at least 30 percent of the number of dentists actually engaged in the practice of dentistry in this state. The corporation shall file annually in September with the State Board of Dental Examiners the name and address of each participating or contracting dentist. (e) A corporation formed under this section may not: (1) prevent a patient from selecting the licensed dentist of the patient's choice to provide dental services to the patient; (2) deny a licensed dentist the right to participate as a contracting dentist to perform the dental services contracted for by the patient; (3) discriminate among patients or licensed dentists regarding payment or reimbursement for the cost of performing dental services; or (4) authorize any person to regulate, interfere with, or intervene in any manner in the diagnosis or treatment provided by a licensed dentist to a patient. (f) A corporation formed under this section may require the attending dentist to provide a narrative oral or written description of the dental services provided to determine benefits or provide proof of treatment. The corporation may request but may not require diagnostic aids used in the course of treatment. (TNPCA 2.01.A (part).) Sec. 22.053. DIVIDENDS PROHIBITED. A dividend may not be paid to, and no part of the income of a corporation may be distributed to, the corporation's members, directors, or officers. (TNPCA 2.24 (part).) Sec. 22.054. AUTHORIZED BENEFITS AND DISTRIBUTIONS. A corporation may: (1) pay compensation in a reasonable amount to the members, directors, or officers of the corporation for services provided; (2) confer benefits on the corporation's members in conformity with the corporation's purposes; and (3) make distributions to the corporation's members on winding up and termination to the extent authorized by this chapter. (TNPCA 2.24 (part).) Sec. 22.055. POWER TO ASSIST EMPLOYEE OR OFFICER. (a) A corporation may lend money to or otherwise assist an employee or officer of the corporation, but not a director, if the loan or assistance may reasonably be expected to directly or indirectly benefit the corporation. (b) A loan made to an officer must be: (1) made for the purpose of financing the officer's principal residence; or (2) set in an original principal amount that does not exceed: (A) 100 percent of the officer's annual salary, if the loan is made before the first anniversary of the officer's employment; or (B) 50 percent of the officer's annual salary, if the loan is made in any subsequent year. (TNPCA 2.02.A (part).) Sec. 22.056. HEALTH ORGANIZATION CORPORATION. (a) Doctors of medicine and osteopathy licensed by the Texas State Board of Medical Examiners and podiatrists licensed by the Texas State Board of Podiatric Medical Examiners may form a corporation that is jointly owned, managed, and controlled by those practitioners to perform a professional service that falls within the scope of practice of those practitioners and consists of: (1) carrying out research in the public interest in medical science, medical economics, public health, sociology, or a related field; (2) supporting medical education in medical schools through grants or scholarships; (3) developing the capabilities of individuals or institutions studying, teaching, or practicing medicine, including podiatric medicine; (4) delivering health care to the public; or (5) instructing the public regarding medical science, public health, hygiene, or a related matter. (b) When doctors of medicine, osteopathy, and podiatry form a corporation that is jointly owned by those practitioners, the authority of each of the practitioners is limited by the scope of practice of the respective practitioners and none can exercise control over the other's clinical authority granted by their respective licenses, either through agreements, the certificate of formation or bylaws of the corporation, directives, financial incentives, or other arrangements that would assert control over treatment decisions made by the practitioner. The Texas State Board of Medical Examiners and the Texas State Board of Podiatric Medical Examiners continue to exercise regulatory authority over their respective licenses. (TNPCA 2.01.C, D.)
[Sections 22.057-22.100 reserved for expansion]
SUBCHAPTER C. FORMATION AND GOVERNING DOCUMENTS
Sec. 22.101. INCORPORATION OF CERTAIN ORGANIZATIONS. A religious society, a charitable, benevolent, literary, or social association, or a church may incorporate as a corporation governed by this chapter with the consent of a majority of its members. Those members shall authorize the organizers to execute the certificate of formation. (TNPCA 3.01.B.) Sec. 22.102. BYLAWS. (a) The initial bylaws of a corporation shall be adopted by the corporation's board of directors or, if the management of the corporation is vested in the corporation's members, by the members. (b) The bylaws may contain provisions for the regulation and management of the affairs of the corporation that are consistent with law and the certificate of formation. (c) The board of directors may amend or repeal the bylaws, or adopt new bylaws, unless: (1) this chapter or the corporation's certificate of formation wholly or partly reserves the power exclusively to the corporation's members; (2) the management of the corporation is vested in the corporation's members; or (3) in amending, repealing, or adopting a bylaw, the members expressly provide that the board of directors may not amend or repeal the bylaw. (TNPCA 2.09.) Sec. 22.103. INCONSISTENCY BETWEEN CERTIFICATE OF FORMATION AND BYLAW. (a) A provision of a certificate of formation of a corporation that is inconsistent with a bylaw controls over the bylaw, except as provided by Subsection (b). (b) A change in the number of directors by amendment to the bylaws controls over the number stated in the certificate of formation, unless the certificate of formation provides that a change in the number of directors may be made only by amendment to the certificate. (TNPCA 3.02.D.) Sec. 22.104. ORGANIZATION MEETING. (a) After the certificate of formation is filed, the board of directors named in the certificate of formation of a corporation shall hold an organization meeting of the board, either in or out of this state, at the call of the incorporators or a majority of the directors to adopt bylaws and elect officers and for other purposes determined by the board at the meeting. The incorporators or directors calling the meeting shall send notice of the time and place of the meeting to each director named in the certificate of formation not later than the third day before the date of the meeting. (b) A first meeting of the members may be held at the call of the majority of the directors on notice provided not later than the third day before the date of the meeting. The notice must state the purposes of the meeting. (c) If the management of a corporation is vested in the corporation's members, the members shall hold the organization meeting on the call of an incorporator. An incorporator who calls the meeting shall: (1) send notice of the time and place of the meeting to each member not later than the third day before the date of the meeting; (2) if the corporation is a church, make an oral announcement of the time and place of the meeting at a regularly scheduled worship service before the meeting; or (3) send notice of the meeting in the manner provided by the certificate of formation. (TNPCA 3.05.) Sec. 22.105. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF FORMATION BY MEMBERS HAVING VOTING RIGHTS. (a) Except as provided by Section 22.107(b), to amend the certificate of formation of a corporation with members having voting rights, the board of directors of the corporation must adopt a resolution specifying the proposed amendment and directing that the amendment be submitted to a vote at an annual or special meeting of the members having voting rights. (b) Written notice containing the proposed amendment or a summary of the changes to be effected by the amendment shall be given to each member entitled to vote at the meeting within the time and in the manner provided by this chapter for giving notice of a meeting of members. (c) The proposed amendment shall be adopted on receiving the vote required by Section 22.164. (TNPCA 4.02.A(1) (part).) Sec. 22.106. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF FORMATION BY MANAGING MEMBERS. (a) To be approved, a proposed amendment to the certificate of formation of a corporation the management of the affairs of which is vested in the corporation's members under Section 22.202 must be submitted to a vote at an annual, regular, or special meeting of the members. (b) Except as otherwise provided by the certificate of formation or bylaws, notice containing the proposed amendment or a summary of the changes to be effected by the amendment shall be given to the members within the time and in the manner provided by this chapter for giving notice of a meeting of members. (c) The proposed amendment shall be adopted on receiving the vote required by Section 22.164. (TNPCA 4.02.A(3) (part).) Sec. 22.107. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF FORMATION BY BOARD OF DIRECTORS. (a) If a corporation has no members or has no members with voting rights, or in the case of an amendment under Subsection (b), an amendment to the corporation's certificate of formation shall be adopted at a meeting of the board of directors on receiving the vote of directors required by Section 22.164. (b) Except as otherwise provided by the certificate of formation, the board of directors of a corporation with members having voting rights may, without member approval, adopt amendments to the certificate of formation to: (1) extend the duration of the corporation if the corporation was incorporated when limited duration was required by law; (2) delete the names and addresses of the initial directors; (3) delete the name and address of the initial registered agent or registered office, if a statement of change is on file with the secretary of state; or (4) change the corporate name by: (A) substituting the word "corporation," "incorporated," "company," or "limited," or the abbreviation "corp.," "inc.," "co.," or "ltd.," for a similar word or abbreviation in the name; or (B) adding, deleting, or changing a geographical attribution to the name. (TNPCA 4.02.A(2), (4).) Sec. 22.108. NUMBER OF AMENDMENTS SUBJECT TO VOTE AT MEETING. Any number of amendments to the corporation's certificate of formation may be submitted to and voted on by a corporation's members at any one meeting of the members. (TNPCA 4.02.B.)
[Sections 22.109-22.150 reserved for expansion]
SUBCHAPTER D. MEMBERS
Sec. 22.151. MEMBERS. (a) A corporation may have one or more classes of members or may have no members. (b) If the corporation has one or more classes of members, the corporation's certificate of formation or bylaws must include: (1) a designation of each class; (2) the manner of the election or appointment of the members of each class; and (3) the qualifications and rights of the members of each class. (c) A corporation may issue a certificate, card, or other instrument evidencing membership rights, voting rights, or ownership rights as authorized by the certificate of formation or bylaws. (TNPCA 2.08.A, B, D.) Sec. 22.152. IMMUNITY FROM LIABILITY. The members of a corporation are not personally liable for a debt, liability, or obligation of the corporation. (TNPCA 2.08.E.) Sec. 22.153. ANNUAL MEETING. (a) Except as provided by Subsection (b), a corporation shall hold an annual meeting of the members at a time that is stated in or determined in accordance with the corporation's bylaws. (b) If the bylaws provide for more than one regular meeting of members each year, an annual meeting is not required. If an annual meeting is not required, directors may be elected at a meeting as provided by the bylaws. (TNPCA 2.10.A(2) (part).) Sec. 22.154. FAILURE TO CALL ANNUAL MEETING. (a) If the board of directors of a corporation fails to call the annual meeting of members at the designated time, a member of the corporation may demand that the meeting be held within a reasonable time. The demand must be made in writing and sent to an officer of the corporation by registered mail. (b) If the annual meeting is not called before the 61st day after the date of demand, a member of the corporation may compel the holding of the meeting by legal action directed against the board of directors, and each of the extraordinary writs of common law and of courts of equity are available to the member to compel the holding of the meeting. Each member has a justiciable interest sufficient to enable the member to institute and prosecute the legal proceedings. (c) Failure to hold the annual meeting at the designated time does not result in the winding up and termination of the corporation. (TNPCA 2.10.A(2) (part).) Sec. 22.155. SPECIAL MEETINGS OF MEMBERS. A special meeting of the members of a corporation may be called by: (1) the president; (2) the board of directors; (3) members having not less than one-tenth of the votes entitled to be cast at the meeting; or (4) other officers or persons as provided by the certificate of formation or bylaws of the corporation. (TNPCA 2.10.A(3).) Sec. 22.156. NOTICE OF MEETING. (a) A corporation other than a church shall provide written notice of the place, date, and time of a meeting of the members of the corporation and, if the meeting is a special meeting, the purpose or purposes for which the meeting is called. The notice shall be delivered to each member entitled to vote at the meeting not later than the 10th day and not earlier than the 60th day before the date of the meeting. Notice may be delivered personally or in accordance with Section 6.051(b). (b) Notice of a meeting of the members of a corporation that is a church is sufficient if given by oral announcement at a regularly scheduled worship service before the meeting or as otherwise provided by the certificate of formation or bylaws of the corporation. (TNPCA 2.11.A (part), B.) Sec. 22.157. SPECIAL BYLAWS AFFECTING NOTICE. (a) A corporation may provide in the corporation's bylaws that notice of an annual or regular meeting is not required. (b) A corporation having more than 1,000 members at the time a meeting is scheduled or called may provide notice of a meeting by publication in a newspaper of general circulation in the community in which the principal office of the corporation is located, if the corporation provides for that notice in its bylaws. (TNPCA 2.11.C, D.) Sec. 22.158. PREPARATION AND INSPECTION OF LIST OF VOTING MEMBERS. (a) After setting a record date for the notice of a meeting, a corporation shall prepare an alphabetical list of the names of all its voting members. The list must identify: (1) the members who are entitled to notice and the members who are not entitled to notice of the meeting; (2) the address of each voting member; and (3) the number of votes each voting member is entitled to cast at the meeting. (b) Not later than the second business day after the date notice is given of a meeting for which a list was prepared in accordance with Subsection (a), and continuing through the meeting, the list of voting members must be available at the corporation's principal office or at a reasonable place in the municipality in which the meeting will be held, as identified in the notice of the meeting, for inspection by members entitled to vote at the meeting for the purpose of communication with other members concerning the meeting. (c) A voting member or voting member's agent or attorney is entitled on written demand to inspect and, at the member's expense and subject to Section 22.351, copy the list at a reasonable time during the period the list is available for inspection. (d) The corporation shall make the list of voting members available at the meeting. A voting member or voting member's agent or attorney is entitled to inspect the list at any time during the meeting or an adjournment of the meeting. (TNPCA 2.11B.) Sec. 22.159. QUORUM OF MEMBERS. (a) Unless otherwise provided by the certificate of formation or bylaws of a corporation, members of the corporation holding one-tenth of the votes entitled to be cast, in person or by proxy, constitute a quorum. (b) The vote of the majority of the votes entitled to be cast by the members present or represented by proxy at a meeting at which a quorum is present is the act of the members meeting, unless the vote of a greater number is required by law or the certificate of formation or bylaws. (c) Unless otherwise provided by the certificate of formation or bylaws, a church incorporated before May 12, 1959, is considered to have provided in the certificate of formation or bylaws that members present at a meeting for which notice has been given constitute a quorum. (TNPCA 2.12.) Sec. 22.160. VOTING OF MEMBERS. (a) Each member of a corporation, regardless of class, is entitled to one vote on each matter submitted to a vote of the corporation's members, except to the extent that the voting rights of members of a class are limited, enlarged, or denied by the certificate of formation or bylaws of the corporation. (b) A member may vote in person or, unless otherwise provided by the certificate of formation or bylaws, by proxy executed in writing by the member or the member's attorney-in-fact. (c) Unless otherwise provided by the proxy, a proxy is revocable and expires 11 months after the date of its execution. A proxy may not be irrevocable for longer than 11 months. (d) If authorized by the certificate of formation or bylaws of the corporation, a member vote on any matter may be conducted by mail, by facsimile transmission, by electronic message, or by any combination of those methods. (TNPCA 2.13.A, B.) Sec. 22.161. ELECTION OF DIRECTORS. (a) A member entitled to vote at an election of directors is entitled to vote, in person or by proxy, for as many persons as there are directors to be elected and for whose election the member has a right to vote. (b) If expressly authorized by the corporation's certificate of formation, the member may cumulate the member's vote by: (1) giving one candidate a number of votes equal to the number of the directors to be elected multiplied by the member's vote; or (2) distributing the votes on the same principle among any number of the candidates. (c) A member who intends to cumulate votes under Subsection (b) shall give written notice of the member's intention to the secretary of the corporation not later than the day preceding the date of the election. (TNPCA 2.13.C.) Sec. 22.162. GREATER VOTING REQUIREMENTS UNDER CERTIFICATE OF FORMATION. If the corporation's certificate of formation requires the vote or concurrence of a greater proportion of the members of a corporation than is required by this chapter with respect to an action to be taken by the members, the certificate of formation controls. (TNPCA 9.08.) Sec. 22.163. RECORD DATE FOR DETERMINATION OF MEMBERS. (a) The record date for determining members of a corporation may be set as provided by Section 6.101. (b) If a record date is not set under Section 6.101: (1) members on the date of the meeting who are otherwise eligible to vote are entitled to vote at the meeting; (2) members at the close of business on the business day preceding the date notice is given, or if notice is waived, at the close of business on the business day preceding the date of the meeting, are entitled to notice of a meeting of members; and (3) members at the close of business on the later of the day the board of directors adopts the resolution relating to the action or the 60th day before the date of the action are entitled to exercise any rights regarding any other lawful action. (c) The board of directors of a corporation may set a new date for determining the right to notice of or to vote at any adjournment of a members' meeting. The board shall set a new date if the meeting is adjourned to a date more than 90 days after the record date for determining members entitled to notice of the original meeting. (TNPCA 2.11A.A (part), B (part), C (part), E.) Sec. 22.164. VOTE REQUIRED TO APPROVE FUNDAMENTAL ACTION. (a) In this section, "fundamental action" means: (1) an amendment of a certificate of formation; (2) a voluntary winding up under Chapter 11; (3) a revocation of a voluntary decision to wind up under Section 11.151; (4) a cancellation of an event requiring winding up under Section 11.152; (5) a reinstatement under Section 11.202; (6) a distribution plan under Section 22.305; (7) a plan of merger under Subchapter F; (8) a sale of all or substantially all of the assets of a corporation under Subchapter F; (9) a plan of conversion under Subchapter F; or (10) a plan of exchange under Subchapter F. (b) Except as otherwise provided by Subsection (c) or the certificate of formation in accordance with Section 22.162, the vote required for approval of a fundamental action is: (1) at least two-thirds of the votes that members present in person or by proxy are entitled to cast at the meeting at which the action is submitted for a vote, if the corporation has members with voting rights; (2) at least two-thirds of the votes of members present at the meeting at which the action is submitted for a vote, if the management of the affairs of the corporation is vested in the corporation's members under Section 22.202; or (3) the affirmative vote of the majority of the directors in office, if the corporation has no members or has no members with voting rights. (c) If any class of members is entitled to vote on the fundamental action as a class by the terms of the certificate of formation or the bylaws, the vote required for the approval of the fundamental action is the vote required by Subsection (b)(1) and at least two-thirds of the votes that the members of each class in person or by proxy are entitled to cast at the meeting at which the action is submitted for a vote. (TNPCA 4.02.A (part), 5.03.A (part), 5.09 (part), 6.01.A (part), 6.03 (part), 6.04.A (part).)
[Sections 22.165-22.200 reserved for expansion]
SUBCHAPTER E. MANAGEMENT
Sec. 22.201. MANAGEMENT BY BOARD OF DIRECTORS. Except as provided by Section 22.202, the affairs of a corporation are managed by a board of directors. The board of directors may be designated by any name appropriate to the customs, usages, or tenets of the corporation. (TNPCA 2.14.A (part), D.) Sec. 22.202. MANAGEMENT BY MEMBERS. (a) The certificate of formation of a corporation may vest the management of the affairs of the corporation in the members of the corporation. If the corporation has a board of directors, the corporation may limit the authority of the board to the extent provided by the certificate of formation or bylaws. (b) A corporation is considered to have vested the management of the corporation's affairs in the board of directors of the corporation in the absence of a provision to the contrary in the certificate of formation, unless the corporation is a church organized and operating under a congregational system that: (1) was incorporated before January 1, 1994; and (2) has the management of its affairs vested in the corporation's members. (TNPCA 2.14.C.) Sec. 22.203. BOARD MEMBER ELIGIBILITY REQUIREMENTS. A director of a corporation is not required to be a resident of this state or a member of the corporation unless the certificate of formation or a bylaw of the corporation imposes that requirement. The certificate of formation or bylaws may prescribe other qualifications for directors. (TNPCA 2.14.A (part).) Sec. 22.204. NUMBER OF DIRECTORS. (a) If the corporation has a board of directors, a corporation may not have fewer than three directors. The number of directors shall be set by, or in the manner provided by, the certificate of formation or bylaws of the corporation, except that the number of directors on the initial board of directors must be set by the certificate of formation. (b) The number of directors may be increased or decreased by amendment to, or in the manner provided by, the certificate of formation or bylaws. A decrease in the number of directors may not shorten the term of an incumbent director. (c) In the absence of a provision of the certificate of formation or a bylaw setting the number of directors or providing for the manner in which the number of directors shall be determined, the number of directors is the same as the number constituting the initial board of directors. (TNPCA 2.15.A.) Sec. 22.205. DESIGNATION OF INITIAL BOARD OF DIRECTORS. If the corporation is to be managed by a board of directors, the certificate of formation of a corporation must state the names of the members of the initial board of directors of the corporation. (TNPCA 2.15.B (part).) Sec. 22.206. ELECTION OR APPOINTMENT OF BOARD OF DIRECTORS. Directors other than the initial directors are elected, appointed, or designated in the manner provided by the certificate of formation or bylaws. If the method of election, designation, or appointment is not provided by the certificate of formation or bylaws, directors other than the initial directors are elected by the board of directors. (TNPCA 2.15.B (part).) Sec. 22.207. ELECTION AND CONTROL BY CERTAIN ENTITIES. (a) The board of directors of a religious, charitable, educational, or eleemosynary corporation may be affiliated with, elected, and controlled by an incorporated or unincorporated convention, conference, or association organized under the laws of this or another state, the membership of which is composed of representatives, delegates, or messengers from a church or other religious association. (b) The board of directors of a corporation may be wholly or partly elected by one or more associations or corporations organized under the laws of this or another state if: (1) the certificate of formation or bylaws of the corporation provide for that election; and (2) the corporation has no members with voting rights. (TNPCA 2.14.B, E.) Sec. 22.208. TERM OF OFFICE. (a) A director on the initial board of directors of a corporation holds office until the first annual election of directors or for the period specified in the certificate of formation or bylaws of the corporation. Directors other than the initial directors are elected, appointed, or designated for the terms provided by the certificate of formation or bylaws. (b) In the absence of a provision in the certificate of formation or bylaws setting the term of office for directors, a director holds office until the next annual election of directors and until a successor is elected, appointed, or designated and qualified. (c) A director may be removed from office as provided in Section 22.211. (TNPCA 2.15.B (part), C (part).) Sec. 22.209. CLASSIFICATION OF DIRECTORS. Directors may be divided into classes. The terms of office of the several classes are not required to be uniform. (TNPCA 2.15.C (part).) Sec. 22.210. EX OFFICIO MEMBER OF BOARD. (a) The certificate of formation or bylaws of a corporation may provide that a person may be an ex officio member of the board of directors of the corporation. (b) A person designated as an ex officio member of the board is entitled to receive notice of and to attend board meetings. (c) An ex officio member is not entitled to vote unless the certificate of formation or bylaws authorize the member to vote. An ex officio member of the board who is not entitled to vote does not have the duties or liabilities of a director provided by this chapter. (TNPCA 2.14.F.) Sec. 22.211. REMOVAL OF DIRECTOR. (a) A director of a corporation may be removed from office under any procedure provided by the certificate of formation or bylaws of the corporation. (b) In the absence of a provision for removal in the certificate of formation or bylaws, a director may be removed from office, with or without cause, by the persons entitled to elect, designate, or appoint the director. If the director was elected to office, removal requires an affirmative vote equal to the vote necessary to elect the director. (TNPCA 2.15.D.) Sec. 22.212. VACANCY. (a) Unless otherwise provided by the certificate of formation or bylaws of the corporation, a vacancy in the board of directors of a corporation shall be filled by the affirmative vote of the majority of the remaining directors, regardless of whether that majority is less than a quorum. A director elected to fill a vacancy is elected for the unexpired term of the member's predecessor in office. (b) A vacancy in the board occurring because of an increase in the number of directors shall be filled by election at an annual meeting or at a special meeting of members called for that purpose. If a corporation has no members or has no members with the right to vote on the vacancy, the vacancy shall be filled as provided by the certificate of formation or bylaws. (TNPCA 2.16.) Sec. 22.213. QUORUM. (a) A quorum for the transaction of business by the board of directors of a corporation is the lesser of: (1) the majority of the number of directors set by the corporation's bylaws or, in the absence of a bylaw setting the number of directors, a majority of the number of directors stated in the corporation's certificate of formation; or (2) any number, not less than three, set as a quorum by the certificate of formation or bylaws. (b) A director present by proxy at a meeting may not be counted toward a quorum. (TNPCA 2.17.A, B.) Sec. 22.214. ACTION BY DIRECTORS. The act of a majority of the directors present in person or by proxy at a meeting at which a quorum is present is the act of the board of directors of a corporation, unless the act of a greater number is required by the certificate of formation or bylaws of the corporation. (TNPCA 2.17.C.) Sec. 22.215. VOTING IN PERSON OR BY PROXY. A director of a corporation may vote in person or, if authorized by the certificate of formation or bylaws of the corporation, by proxy executed in writing by the director. (TNPCA 2.17.D (part).) Sec. 22.216. TERM AND REVOCABILITY OF PROXY. (a) A proxy expires three months after the date the proxy is executed. (b) A proxy is revocable unless otherwise provided by the proxy or made irrevocable by law. (TNPCA 2.17.D (part).) Sec. 22.217. NOTICE OF MEETING; WAIVER OF NOTICE. (a) Regular meetings of the board of directors of a corporation may be held with or without notice as prescribed by the corporation's bylaws. (b) Special meetings of the board of directors shall be held with notice as prescribed by the bylaws. Attendance of a director at a meeting constitutes a waiver of notice, unless the director attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. (c) Unless required by the bylaws, the business to be transacted at, or the purpose of, a regular or special meeting of the board of directors is not required to be specified in the notice or waiver of notice of the meeting. (d) Notice may be delivered personally or in accordance with Section 6.051(b). (TNPCA 2.19.B.) Sec. 22.218. MANAGEMENT COMMITTEE. (a) If authorized by the certificate of formation or bylaws of the corporation, the board of directors of a corporation, by resolution adopted by the majority of the directors in office, may designate one or more committees to have and exercise the authority of the board in the management of the corporation to the extent provided by: (1) the resolution; (2) the certificate of formation; or (3) the bylaws. (b) A committee designated under this section must consist of at least two persons. The majority of the persons on the committee must be directors. If provided by the certificate of formation or bylaws, the remaining persons on the committee are not required to be directors. (c) The designation of a committee and the delegation of authority to the committee does not operate to relieve the board of directors, or an individual director, of any responsibility imposed on the board or director by law. A committee member who is not a director has the same responsibility with respect to the committee as a committee member who is a director. (TNPCA 2.18.A.) Sec. 22.219. OTHER COMMITTEES. (a) The board of directors of a corporation, by resolution adopted by the majority of the directors at a meeting at which a quorum is present, or the president, if authorized by a similar resolution of the board of directors or by the certificate of formation or bylaws of the corporation, may designate and appoint one or more committees that do not have the authority of the board of directors in the management of the corporation. (b) The membership on a committee designated under this section may be limited to directors. (TNPCA 2.18.B.) Sec. 22.220. ACTION WITHOUT MEETING OF DIRECTORS OR COMMITTEE. (a) The certificate of formation of a corporation may provide that an action required by this chapter to be taken at a meeting of the corporation's directors or an action that may be taken at a meeting of the directors or a committee may be taken without a meeting if a written consent, stating the action to be taken, is signed by the number of directors or committee members necessary to take that action at a meeting at which all of the directors or committee members are present and voting. The consent must state the date of each director's or committee member's signature. (b) A written consent signed by less than all of the directors or committee members is not effective to take the action that is the subject of the consent unless, not later than the 60th day after the date of the earliest dated consent delivered to the corporation in the manner required by this section, a consent or consents signed by the required number of directors or committee members are delivered to the corporation: (1) at the registered office or principal place of business of the corporation; or (2) through the corporation's registered agent, transfer agent, registrar, or exchange agent or an officer or agent of the corporation having custody of the books in which proceedings of meetings of directors or committees are recorded. (c) Delivery under Subsection (b) must be by hand or by certified or registered mail, return receipt requested. Delivery to the corporation's principal place of business must be addressed to the president or principal executive officer of the corporation. (d) Prompt notice of the taking of an action by directors or a committee without a meeting by less than unanimous written consent shall be given to each director or committee member who did not consent in writing to the action. (TNPCA 9.10.C(1), (2), (3).) Sec. 22.221. GENERAL STANDARDS FOR DIRECTORS. (a) A director shall discharge the director's duties, including duties as a committee member, in good faith, with ordinary care, and in a manner the director reasonably believes to be in the best interest of the corporation. (b) A director is not liable to the corporation, a member, or another person for an action taken or not taken as a director if the director acted in compliance with this section. A person seeking to establish liability of a director must prove that the director did not act: (1) in good faith; (2) with ordinary care; and (3) in a manner the director reasonably believed to be in the best interest of the corporation. (TNPCA 2.28.A, D.) Sec. 22.222. RELIGIOUS CORPORATION DIRECTOR'S GOOD FAITH RELIANCE ON CERTAIN INFORMATION. A director of a religious corporation, in the discharge of a duty imposed or power conferred on the director, including a duty imposed or power conferred as a committee member, may rely in good faith on information or on an opinion, report, or statement, including a financial statement or other financial data, concerning the corporation or another person that was prepared or presented by: (1) a religious authority; or (2) a minister, priest, rabbi, or other person whose position or duties in the corporation the director believes justify reliance and confidence and whom the director believes to be reliable and competent in the matters presented. (TNPCA 2.28.B (part).) Sec. 22.223. NOT A TRUSTEE. A director of a corporation is not considered to have the duties of a trustee of a trust with respect to the corporation or with respect to property held or administered by the corporation, including property subject to restrictions imposed by the donor or transferor of the property. (TNPCA 2.28.E.) Sec. 22.224. DELEGATION OF INVESTMENT AUTHORITY. (a) The board of directors of a corporation may: (1) contract with an advisor who is an investment counsel or a trust company, bank, investment advisor, or investment manager; and (2) confer on that advisor the authority to: (A) purchase or otherwise acquire a stock, bond, security, or other investment on behalf of the corporation; and (B) sell, transfer, or otherwise dispose of an asset or property of the corporation at a time and for a consideration the advisor considers appropriate. (b) The board of directors may: (1) confer on an advisor described by Subsection (a) other powers regarding the corporation's investments as the board considers appropriate; and (2) authorize the advisor to hold title to an asset or property of the corporation, in the advisor's own name or in the name of a nominee, for the benefit of the corporation. (c) The board of directors is not liable for an action taken or not taken by an advisor under this section if the board acted in good faith and with ordinary care in selecting the advisor. The board of directors may remove or replace the advisor, with or without cause, if the board considers that action appropriate or necessary. (TNPCA 2.29.) Sec. 22.225. LOAN TO DIRECTOR PROHIBITED. (a) A corporation may not make a loan to a director. (b) The directors of a corporation who vote for or assent to the making of a loan to a director, and any officer who participates in making the loan, are jointly and severally liable to the corporation for the amount of the loan until the loan is repaid. (TNPCA 2.25.) Sec. 22.226. DIRECTOR LIABILITY FOR CERTAIN DISTRIBUTIONS OF ASSETS. (a) In addition to any other liability imposed by law on the directors of a corporation, the directors who vote for or assent to a distribution of assets other than in payment of the corporation's debts, when the corporation is insolvent or when distribution would render the corporation insolvent, or during the liquidation of the corporation, without the payment and discharge of or making adequate provisions for any known debt, obligation, or liability of the corporation, are jointly and severally liable to the corporation for the value of the assets distributed, to the extent that the debt, obligation, or liability is not paid and discharged. (b) A director is not liable under this section if, in voting for or assenting to a distribution, the director: (1) relied in good faith and with ordinary care on information or an opinion, report, or statement in accordance with Section 3.102; (2) acting in good faith and with ordinary care, considered the assets of the corporation to be at least equal to their book value; or (3) in determining whether the corporation made adequate provision for the discharge of all of its liabilities and obligations as provided in Section 11.053, relied in good faith and with ordinary care on financial statements of, or other information concerning, a person who was or became contractually obligated to discharge some or all of those liabilities or obligations. (TNPCA 2.26.A, C.) Sec. 22.227. DISSENT TO ACTION. (a) A director of a corporation who is present at a meeting of the board of directors at which action is taken on a corporate matter described by Section 22.226(a) is presumed to have assented to the action unless: (1) the director's dissent has been entered in the minutes of the meeting; (2) the director has filed a written dissent to the action with the person acting as the secretary of the meeting before the meeting is adjourned; or (3) the director has sent a written dissent by registered mail to the secretary of the corporation immediately after the meeting has been adjourned. (b) The right to dissent under this section does not apply to a director who voted in favor of the action. (TNPCA 2.26.B.) Sec. 22.228. RELIANCE ON WRITTEN OPINION OF ATTORNEY. A director is not liable under Section 22.226 or 22.227 if, in the exercise of ordinary care, the director acted in good faith and in reliance on the written opinion of an attorney for the corporation. (TNPCA 2.26.D.) Sec. 22.229. RIGHT TO CONTRIBUTION. A director against whom a claim is asserted under Section 22.226 or 22.227 and who is held liable on the claim is entitled to contribution from persons who accepted or received the distribution knowing the distribution to have been made in violation of that section, in proportion to the amounts received by those persons. (TNPCA 2.26.E.) Sec. 22.230. CONTRACTS OR TRANSACTIONS INVOLVING INTERESTED DIRECTORS, OFFICERS, AND MEMBERS. (a) This section applies only to a contract or transaction between a corporation and: (1) one or more of the corporation's directors, officers, or members; or (2) an entity or other organization in which one or more of the corporation's directors, officers, or members: (A) is a managerial official or a member; or (B) has a financial interest. (b) An otherwise valid contract or transaction is valid notwithstanding that a director, officer, or member of the corporation is present at or participates in the meeting of the board of directors, of a committee of the board, or of the members that authorizes the contract or transaction, or votes to authorize the contract or transaction, if: (1) the material facts as to the relationship or interest and as to the contract or transaction are disclosed to or known by: (A) the corporation's board of directors, a committee of the board of directors, or the members, and the board, the committee, or the members in good faith and with ordinary care authorize the contract or transaction by the affirmative vote of the majority of the disinterested directors, committee members or members, regardless of whether the disinterested directors, committee members or members constitute a quorum; or (B) the members entitled to vote on the authorization of the contract or transaction, and the contract or transaction is specifically approved in good faith and with ordinary care by a vote of the members; or (2) the contract or transaction is fair to the corporation when the contract or transaction is authorized, approved, or ratified by the board of directors, a committee of the board of directors, or the members. (c) Common or interested directors or members of a corporation may be included in determining the presence of a quorum at a meeting of the board, a committee of the board, or members that authorizes the contract or transaction. (TNPCA 2.30.) Sec. 22.231. OFFICERS. (a) The officers of a corporation shall include a president and a secretary and may include one or more vice presidents, a treasurer, and other officers and assistant officers as considered necessary. Any two or more offices, other than the offices of president and secretary, may be held by the same person. (b) A properly designated committee may perform the functions of an officer. A single committee may perform the functions of any two or more officers, including the functions of president and secretary. (c) The officers of a corporation may be designated by other or additional titles as provided by the certificate of formation or bylaws of the corporation. (TNPCA 2.20.A (part), B.) Sec. 22.232. ELECTION OR APPOINTMENT OF OFFICERS. (a) An officer of a corporation shall be elected or appointed at the time, in the manner, and for the terms prescribed by the certificate of formation or bylaws of the corporation. The term of an officer may not exceed three years. (b) If the certificate of formation or bylaws do not include provisions for the election or appointment of officers, the officers shall be elected or appointed annually by the board of directors or, if the management of the corporation is vested in the corporation's members, by the members. (TNPCA 2.20.A (part).) Sec. 22.233. APPLICATION TO CHURCH. A corporation that is a church is not required to have officers as provided by this subchapter. The duties and responsibilities of the officers may be vested in the corporation's board of directors or other designated body in any manner provided for by the certificate of formation or bylaws of the corporation. (TNPCA 2.20.C.) Sec. 22.234. RELIGIOUS CORPORATION OFFICER'S GOOD FAITH RELIANCE ON CERTAIN INFORMATION. An officer of a religious corporation, in the discharge of a duty imposed or power conferred on the officer, may rely in good faith and with ordinary care on information or on an opinion, report, or statement concerning the corporation or another person that was prepared or presented by: (1) a religious authority or another religious corporation; or (2) a minister, priest, rabbi, or other person whose position or duties in the religious authority or religious corporation the officer believes justify reliance and confidence and whom the officer believes to be reliable and competent in the matters presented. (TNPCA 2.20.D (part).) Sec. 22.235. OFFICER LIABILITY. (a) An officer is not liable to the corporation or any other person for an action taken or omission made by the officer in the person's capacity as an officer unless the officer's conduct was not exercised: (1) in good faith; (2) with ordinary care; and (3) in a manner the officer reasonably believes to be in the best interest of the corporation. (b) This section shall not affect the liability of the corporation for an act or omission of the officer. (TNPCA 2.22.)
[Sections 22.236-22.250 reserved for expansion]
SUBCHAPTER F. FUNDAMENTAL BUSINESS TRANSACTIONS
Sec. 22.251. APPROVAL OF MERGER. (a) A domestic corporation that is a party to a merger under Chapter 10 must approve the merger by complying with this section. (b) If the corporation that is a party to the merger has no members or has no members with voting rights, the plan of merger must be approved by the vote of directors required by Section 22.164. (c) If the management of the affairs of the corporation that is a party to the merger is vested in its members under Section 22.202, the plan of merger: (1) must be submitted to a vote at an annual, regular, or special meeting of the members; and (2) must be approved by the members by the vote required by Section 22.164. (d) If the corporation that is a party to the merger has members with voting rights: (1) the board of directors must adopt a resolution that: (A) approves the plan of merger; and (B) directs that the plan be submitted to a vote at an annual or special meeting of the members having voting rights; and (2) the members must approve the plan of merger by the vote required by Section 22.164. (TNPCA 5.03.A(1) (part), (2), (3) (part).) Sec. 22.252. APPROVAL OF SALE OF ALL OR SUBSTANTIALLY ALL OF ASSETS. (a) A corporation must approve the sale of all or substantially all of its assets by complying with this section. (b) If the corporation has no members or has no members with voting rights, the sale of all or substantially all of the assets of the corporation must be authorized by the vote of directors required by Section 22.164. (c) If the management of the affairs of the corporation is vested in its members under Section 22.202, a resolution authorizing a sale of all or substantially all of the assets of the corporation: (1) must be submitted to a vote at an annual, regular, or special meeting of the members; and (2) must be approved by the members by the vote required by Section 22.164. (d) If the corporation has members with voting rights: (1) the board of directors of the corporation must adopt a resolution that: (A) recommends the sale; and (B) directs that the resolution be submitted to a vote at an annual or special meeting of the members having voting rights; and (2) the members must approve the resolution by the vote required by Section 22.164. (e) At the meeting required by Subsection (c) or (d), in addition to approving the resolution authorizing the sale, the members may set, or authorize the board of directors to set, the terms and conditions of the sale and the consideration to be received by the corporation for the sale by the same vote of members. (f) After the members authorize a sale under Subsection (d), the board of directors may abandon the sale, subject to the rights of third parties under any contracts relating to the sale, without further action or approval by members. (g) Notwithstanding Subsection (d), if a corporation is insolvent, a sale of all or substantially all of the assets of the corporation may be authorized on receiving the affirmative vote of the majority of the directors in office. (h) The phrase "sale of all or substantially all of the assets" means the sale, lease, exchange, or other disposition, other than a pledge, mortgage, deed of trust, or trust indenture unless otherwise provided by the certificate of formation, of all or substantially all of the property and assets of a domestic corporation that is not made in the usual and regular course of the corporation's activities without regard to whether the disposition is made with the goodwill of the corporation's activities. The term does not include a transaction that results in the corporation directly or indirectly: (1) continuing to engage in one or more activities; or (2) applying a portion of the consideration received in connection with the transaction to the conduct of an activity that the corporation engages in after the transaction. (TNPCA 5.09 (part).) Sec. 22.253. MEETING OF MEMBERS; NOTICE. (a) The corporation must give to each member entitled to vote at a meeting described by Section 22.251(c) or (d) or Section 22.252(c) or (d) a written notice stating that the purpose or one of the purposes of the meeting is to consider the plan of merger or the sale of all or substantially all of the assets of the corporation. The notice must be given in the time and manner provided by Chapter 6 and this chapter for giving notice of a meeting to members. (b) A vote of members entitled to vote at the meeting shall be taken on the plan of merger or the resolution authorizing the sale of all or substantially all of the assets of the corporation. The members must approve the plan or resolution by the vote required by Section 22.164. (c) For a meeting to vote on a plan of merger, the notice of the meeting must contain the plan of merger or a summary of the plan of merger. (d) For a corporation the management of the affairs of which is vested in its members under Section 22.202, the notice of the meeting is subject to the provisions of the certificate of formation or bylaws of the corporation. (TNPCA 5.03.A (part), 5.09 (part).) Sec. 22.254. PLEDGE, MORTGAGE, DEED OF TRUST, OR TRUST INDENTURE. (a) Except as otherwise provided by Subsection (b) or by the corporation's certificate of formation: (1) the board of directors of a corporation may authorize a pledge, mortgage, deed of trust, or trust indenture; and (2) an authorization or consent of members is not required for the validity of the transaction or for any sale under the terms of the transaction. (b) If the management of the affairs of a corporation is vested in the corporation's members under Section 22.202: (1) the members may authorize a pledge, mortgage, deed of trust, or trust indenture in the manner provided by Section 22.252(c) for a sale of all or substantially all of the assets of a corporation; and (2) an authorization by the board of directors is not required for the validity of the transaction or for any sale under the terms of the transaction. (TNPCA 5.09 (part).) Sec. 22.255. CONVEYANCE BY CORPORATION. A corporation may convey real property of the corporation when authorized by appropriate resolution of the board of directors or members. (TNPCA 5.08 (part).) Sec. 22.256. APPROVAL OF CONVERSION. (a) A domestic corporation must approve a conversion under Chapter 10 by complying with this section. (b) If the corporation has no members or has no members with voting rights, the plan of conversion must be approved by the vote of directors required by Section 22.164. (c) If the management of the affairs of the corporation is vested in its members under Section 22.202, the plan of conversion: (1) must be submitted to a vote at an annual, regular, or special meeting of the members; and (2) must be approved by the members by the vote required by Section 22.164. (d) If the corporation has members with voting rights: (1) the board of directors must adopt a resolution that: (A) approves the plan of conversion; and (B) directs that the plan be submitted to a vote at an annual or special meeting of the members having voting rights; and (2) the members must approve the plan of conversion by the vote required by Section 22.164. (New.) Sec. 22.257. APPROVAL OF EXCHANGE. (a) A domestic corporation must approve an exchange under Chapter 10 by complying with this section. (b) If the corporation has no members or has no members with voting rights, the plan of exchange must be approved by the vote of directors required by Section 22.164. (c) If the management of the affairs of the corporation is vested in its members under Section 22.202, the plan of exchange: (1) must be submitted to a vote at an annual, regular, or special meeting of the members; and (2) must be approved by the members by the vote required by Section 22.164. (d) If the corporation has members with voting rights: (1) the board of directors must adopt a resolution that: (A) approves the plan of exchange; and (B) directs that the plan be submitted to a vote at an annual or special meeting of the members having voting rights; and (2) the members must approve the plan of exchange by the vote required by Section 22.164. (New.)
[Sections 22.258-22.300 reserved for expansion]
SUBCHAPTER G. WINDING UP AND TERMINATION
Sec. 22.301. APPROVAL OF VOLUNTARY WINDING UP, REINSTATEMENT, REVOCATION OF VOLUNTARY WINDING UP, OR DISTRIBUTION PLAN. A corporation must approve a voluntary winding up in accordance with Chapter 11, a reinstatement in accordance with Section 11.202, a cancellation of an event requiring winding up under Section 11.152, a revocation of a voluntary decision to wind up in accordance with Section 11.151, or a distribution plan in accordance with Section 22.305 by complying with the procedures prescribed by this subchapter. (New.) Sec. 22.302. CERTAIN PROCEDURES FOR APPROVAL. To approve a voluntary winding up, a reinstatement, a cancellation of an event requiring winding up, a revocation of a voluntary decision to wind up, or a distribution plan, a corporation must follow the following procedures: (1) if the corporation has no members or has no members with voting rights, the corporation's board of directors must adopt a resolution to wind up, to reinstate, to cancel the event requiring winding up, to revoke a voluntary decision to wind up, or to effect the distribution plan by the vote of directors required by Section 22.164; (2) if the management of the affairs of the corporation is vested in the corporation's members under Section 22.202, the winding up, reinstatement, cancellation of event requiring winding up, revocation of voluntary decision to wind up, or distribution plan: (A) must be submitted to a vote at an annual, regular, or special meeting of members; and (B) must be approved by the members by the vote required by Section 22.164; or (3) if the corporation has members with voting rights: (A) the corporation's board of directors must approve a resolution: (i) recommending the winding up, reinstatement, cancellation of event requiring winding up, revocation of a voluntary decision to wind up, or distribution plan; and (ii) directing that the winding up, reinstatement, cancellation of event requiring winding up, revocation of a voluntary decision to wind up, or distribution plan of the corporation be submitted to a vote at an annual or special meeting of members; and (B) the members must approve the action described by Paragraph (A) in accordance with Section 22.303. (TNPCA 6.01.A (part), 6.03 (part), 6.04.A (part).) Sec. 22.303. MEETING OF MEMBERS; NOTICE. (a) The corporation must give to each member entitled to vote at a meeting described by Section 22.302(2) or (3) a written notice stating that the purpose or one of the purposes of the meeting is to consider the winding up, reinstatement, cancellation of event requiring winding up, revocation of the voluntary decision to wind up, or distribution plan of the corporation. The notice must be given in the time and manner provided by Chapter 6 and this chapter for the giving of notice of a meeting to members. (b) A vote of members entitled to vote at the meeting shall be taken on the resolution to wind up, reinstate, cancel the event requiring winding up, revoke the voluntary decision to wind up, or effect the distribution plan of the corporation. The members must approve the resolution by the vote required under Section 22.164. (c) For a meeting to vote on a distribution plan, the notice of the meeting must contain the proposed plan of distribution or a summary of the plan. (d) For a corporation the management of the affairs of which is vested in its members under Section 22.202, the notice of the meeting is subject to the provisions of the certificate of formation or bylaws of the corporation. (TNPCA 6.01.A (part), 6.03 (part), 6.04.A (part).) Sec. 22.304. APPLICATION AND DISTRIBUTION OF PROPERTY. (a) After all liabilities and obligations of a corporation in the process of winding up are paid, satisfied, and discharged in accordance with Section 11.053, the property of the corporation shall be applied and distributed as follows: (1) property held by the corporation on a condition requiring return, transfer, or conveyance because of the winding up or termination shall be returned, transferred, or conveyed in accordance with that requirement; and (2) unless otherwise provided by the corporation's certificate of formation, the remaining property of the corporation shall be distributed only for tax-exempt purposes to one or more organizations that are exempt under Section 501(c)(3), Internal Revenue Code, or described by Section 170(c)(1) or (2), Internal Revenue Code, under a plan of distribution adopted under this chapter. (b) A district court of the county in which the corporation's principal office is located shall distribute to one or more organizations exempt under Section 501(c)(3), Internal Revenue Code, or described by Section 170(c)(1) or (2), Internal Revenue Code, the property of the corporation remaining after a distribution of property under the plan of distribution. The court shall make the distribution in the manner the court determines will best accomplish the general purposes for which the corporation was organized. (TNPCA 6.02.A(2), (3).) Sec. 22.305. DISTRIBUTION PLAN. A plan providing for the distribution of property may be adopted by a corporation in the process of winding up, and shall be adopted by a corporation to authorize a transfer or conveyance of assets for which this chapter requires a plan of distribution, in the manner provided by this subchapter. (TNPCA 6.03 (part).) Sec. 22.306. LIMITED SURVIVAL AFTER NATURAL EXPIRATION. (a) A corporation that was terminated by the expiration of the period of its duration may, during the three-year period following the date of termination, amend the corporation's certificate of formation by following the procedures prescribed by Chapter 11 and this chapter to extend or perpetuate the corporation's period of duration. The expiration of a corporation's period of duration does not give a member or creditor of the corporation a vested right to prevent the corporation from taking action under this subsection. (b) An act or contract of a terminated corporation during a period within which the corporation could have extended the corporation's existence under this section, regardless of whether the corporation has taken action to extend its existence, is not invalidated by the expiration of the period of duration. (TNPCA 7.12.G.) Sec. 22.307. RESPONSIBILITY FOR WINDING UP. If a corporation determines or is required to wind up, the winding up of the corporation's affairs shall be managed by: (1) the directors, if management of the affairs is not vested in the corporation's members under Section 22.202; or (2) the members, if management of the affairs is vested in the corporation's members under Section 22.202. (New.)
[Sections 22.308-22.350 reserved for expansion]
SUBCHAPTER H. RECORDS AND REPORTS
Sec. 22.351. MEMBER'S RIGHT TO INSPECT BOOKS AND RECORDS. A member of a corporation, on written demand stating the purpose of the demand, is entitled to examine and copy at the member's expense, in person or by agent, accountant, or attorney, at any reasonable time and for a proper purpose, the books and records of the corporation relevant to that purpose. (TNPCA 2.23.B.) Sec. 22.352. FINANCIAL RECORDS AND ANNUAL REPORTS. (a) A corporation shall maintain current and accurate financial records with complete entries as to each financial transaction of the corporation, including income and expenditures, in accordance with generally accepted accounting principles. (b) Based on the records maintained under Subsection (a), the board of directors of the corporation shall annually prepare or approve a financial report for the corporation for the preceding year. The report must conform to accounting standards as adopted by the American Institute of Certified Public Accountants and must include: (1) a statement of support, revenue, and expenses; (2) a statement of changes in fund balances; (3) a statement of functional expenses; and (4) a balance sheet for each fund. (TNPCA 2.23A.A, B.) Sec. 22.353. AVAILABILITY OF FINANCIAL INFORMATION FOR PUBLIC INSPECTION. (a) A corporation shall keep records, books, and annual reports of the corporation's financial activity at the corporation's registered or principal office in this state for at least three years after the close of the fiscal year. (b) The corporation shall make the records, books, and reports available to the public for inspection and copying at the corporation's registered or principal office during regular business hours. The corporation may charge a reasonable fee for preparing a copy of a record or report. (TNPCA 2.23A.C.) Sec. 22.354. FAILURE TO MAINTAIN FINANCIAL RECORD OR PREPARE ANNUAL REPORT; OFFENSE. (a) A corporation commits an offense if the corporation fails to maintain a financial record, prepare an annual report, or make the record or report available to the public in the manner required by Section 22.353. (b) An offense under this section is a Class B misdemeanor. (TNPCA 2.23A.D.) Sec. 22.355. EXEMPTIONS FROM CERTAIN REQUIREMENTS RELATING TO FINANCIAL RECORDS AND ANNUAL REPORTS. Sections 22.352, 22.353, and 22.354 do not apply to: (1) a corporation that solicits funds only from members of the corporation; (2) a corporation that does not intend to solicit and receive and does not actually raise or receive during a fiscal year contributions in an amount exceeding $10,000 from a source other than its own membership; (3) a private institution of higher education described by Section 61.003(15), Education Code, accredited by a recognized accrediting agency as defined by Section 61.003(13), Education Code, or authorized to grant degrees under a certificate of authority issued by the Texas Higher Education Coordinating Board or a foundation chartered for the benefit of the institution or any component part of the institution, a proprietary school that has received a certificate of approval from the commissioner of education, a public institution of higher education or a foundation chartered for the benefit of the institution or any component part of the institution, or an elementary or secondary school; (4) a religious institution that is a church, an ecclesiastical or denominational organization, or another established physical place for worship at which religious services are the primary activity and are regularly conducted; (5) a trade association or professional society the income of which is principally derived from membership dues and assessments, sales, or services; (6) an insurer licensed and regulated by the Texas Department of Insurance; (7) an organization the charitable activities of which relate to public concern in the conservation and protection of wildlife, fisheries, and allied natural resources; or (8) an alumni association of a public or private institution of higher education in this state that is recognized and acknowledged as the official alumni association by the institution. (TNPCA 2.23A.E.) Sec. 22.356. CORPORATIONS ASSISTING STATE AGENCIES. (a) In this section, "state agency" means: (1) a board, commission, department, office, or other entity that is in the executive branch of state government and that was created by the constitution or a statute of this state, including an institution of higher education as defined by Section 61.003, Education Code; (2) the legislature or a legislative agency; or (3) the supreme court, the court of criminal appeals, a court of appeals, the state bar, or another state judicial agency. (b) The books and records of a corporation other than a bona fide alumni association are subject to audit at the discretion of the state auditor if: (1) the corporation's charter specifically dedicates the corporation's activities to the benefit of a particular state agency; and (2) a board member, officer, or employee of that state agency sits on the board of directors of the corporation in other than an ex officio capacity. (c) If the corporation's charter specifically dedicates the corporation's activities to the benefit of a particular state agency but the conditions described by Subsection (b)(2) do not exist, a corporation shall file with the secretary of state a copy of the report required by Section 22.352(b) for the preceding fiscal year not later than the 89th day after the last day of the corporation's fiscal year. (TNPCA 2.23B.) Sec. 22.357. REPORT OF DOMESTIC AND FOREIGN CORPORATIONS. (a) The secretary of state may require a domestic corporation or a foreign corporation registered to conduct affairs in this state to file a report in accordance with Chapter 4 not more than once every four years as required by this subchapter. The report must state: (1) the name of the corporation; (2) the state or country under the laws of which the corporation is incorporated; (3) the address of the registered office of the corporation in this state and the name of the registered agent at that address; (4) if the corporation is a foreign corporation, the address of the principal office of the corporation in the state or country under the laws of which the corporation is incorporated; and (5) the names and addresses of the directors and officers of the corporation. (b) A corporation required to prepare a report under this section shall prepare the report on a form adopted by the secretary of state for that purpose and shall include in the report information that is accurate as of the date the report is executed. An officer or, if the corporation is in the hands of a receiver or trustee, the receiver or trustee shall sign the report on behalf of the corporation. (TNPCA 9.01.A, B.) Sec. 22.358. NOTICE REGARDING REPORT. (a) The secretary of state shall send written notice that the report required by Section 22.357 is due. The notice must be: (1) addressed to the corporation; and (2) mailed to the corporation's registered agent or to the corporation at: (A) the last known address of the corporation as it appears on record in the office of the secretary of state; or (B) any other known place of business of the corporation. (b) The secretary of state shall include with the notice a report form to be prepared and filed as provided by this subchapter. (TNPCA 9.01.C, D.) Sec. 22.359. FILING OF REPORT. A copy of the report must be filed with the secretary of state in accordance with Chapter 4 not later than the 30th day after the date notice is mailed under Section 22.358. (TNPCA 9.01.C (part), E (part).) Sec. 22.360. FAILURE TO FILE REPORT. (a) A domestic or foreign corporation that fails to file a report under Sections 22.357 and 22.359 when the report is due forfeits the corporation's right to conduct affairs in this state. (b) The forfeiture takes effect, without judicial action, when the secretary of state enters on the record of the corporation kept in the office of the secretary of state: (1) the words "right to conduct affairs forfeited"; and (2) the date of forfeiture. (TNPCA 9.02.A, B (part).) Sec. 22.361. NOTICE OF FORFEITURE. Notice of forfeiture under Section 22.360 shall be mailed to the corporation's registered agent at the registered office or to the corporation at: (1) the address of the principal place of business of the corporation as it appears in the certificate of formation; (2) the last known address of the corporation as it appears on record in the office of the secretary of state; or (3) any other known place of business of the corporation. (TNPCA 9.02.B (part).) Sec. 22.362. EFFECT OF FORFEITURE. (a) Unless the right of the corporation to conduct affairs in this state is revived under Section 22.363: (1) the corporation may not maintain an action, suit, or proceeding in a court of this state; and (2) a successor or assignee of the corporation may not maintain an action, suit, or proceeding in a court of this state on a right, claim, or demand arising from the conduct of affairs by the corporation in this state. (b) This section does not affect the right of an assignee of the corporation as: (1) the holder in due course of a negotiable promissory note, check, or bill of exchange; or (2) the bona fide purchaser for value of a warehouse receipt, stock certificate, or other instrument negotiable by law. (c) The forfeiture of the right to conduct affairs in this state does not: (1) impair the validity of a contract or act of the corporation; or (2) prevent the corporation from defending an action, suit, or proceeding in a court of this state. (TNPCA 9.02.B (part).) Sec. 22.363. REVIVAL OF RIGHT TO CONDUCT AFFAIRS. (a) A corporation may be relieved from a forfeiture under Section 22.360 by filing the required report, accompanied by the revival fee, not later than the 120th day after the date of mailing of the notice of forfeiture under Section 22.361. (b) If a corporation complies with Subsection (a), the secretary of state shall: (1) revive the right of the corporation to conduct affairs in this state; (2) cancel the words regarding the forfeiture on the record of the corporation; and (3) endorse on that record the word "revived" and the date of revival. (TNPCA 9.02.C (part), D.) Sec. 22.364. FAILURE TO REVIVE; TERMINATION OR REVOCATION. (a) The failure of a corporation that has forfeited its right to conduct affairs in this state to revive that right under Section 22.363 is grounds for: (1) the involuntary termination of the domestic corporation; or (2) the revocation of the foreign corporation's registration to transact business in this state. (b) The termination or revocation takes effect, without judicial action, when the secretary of state enters on the record of the corporation filed in the office of the secretary of state the word "forfeited" and the date of forfeiture and cites this chapter as authority for that forfeiture. (TNPCA 9.02.E.) Sec. 22.365. REINSTATEMENT. (a) A corporation that is terminated or the registration of which has been revoked as provided by Section 22.364 may be relieved of the termination or revocation by filing the report required by Section 22.357, accompanied by the filing fee for the report, if the corporation has paid: (1) all fees, taxes, penalties, and interest due and accruing before the termination or revocation; and (2) an amount equal to the total taxes from the date of termination or revocation to the date of reinstatement that would have been payable if the corporation had not been terminated or had its registration revoked. (b) When the report is filed and the filing fee is paid to the secretary of state, the secretary of state shall: (1) reinstate the certificate of formation or registration without judicial action; (2) cancel the word "forfeited" on the record; and (3) endorse on the record kept in the secretary's office relating to the corporation the words "set aside" and the date of the reinstatement. (c) If a termination or revocation is set aside under this section, the corporation shall determine from the secretary of state whether the name of the corporation is available. If the name of the corporation is not available at the time of reinstatement, the corporation shall amend its corporate name under this code. (TNPCA 9.02.F (part), G.)
[Sections 22.366-22.400 reserved for expansion]
SUBCHAPTER I. CHURCH BENEFITS BOARDS
Sec. 22.401. DEFINITION. In this chapter, "church benefits board" means an organization described by Section 414(e)(3)(A), Internal Revenue Code, that: (1) has the principal purpose or function of administering or funding a plan or program to provide retirement benefits, welfare benefits, or both for the ministers or employees of a church or a conference, convention, or association of churches; and (2) is controlled by or affiliated with a church or a conference, convention, or association of churches. (V.A.C.S. 1407a, Sec. 1.) Sec. 22.402. PENSIONS AND BENEFITS. When authorized by the corporation's members or as otherwise provided by law, a domestic or foreign nonprofit corporation formed for a religious purpose may provide, directly or through a separate church benefits board, for the support and payment of benefits and pensions to: (1) the ministers, teachers, employees, trustees, directors, or other functionaries of the corporation; (2) the ministers, teachers, employees, trustees, directors, or other functionaries of organizations controlled by or affiliated with a church or a conference, convention, or association of churches under the jurisdiction and control of the corporation; and (3) the spouse, children, dependents, or other beneficiaries of the persons described by Subdivisions (1) and (2). (V.A.C.S. 1407a, Sec. 2.) Sec. 22.403. CONTRIBUTIONS. (a) A church benefits board may provide for: (1) the collection of contributions and other payments to assist in providing pensions and benefits under this subchapter; and (2) the creation, maintenance, investment, management, and disbursement of necessary annuities, endowments, reserves, or other funds for a purpose under Subdivision (1). (b) A church benefits board may receive payments from a trust fund or corporation that funds a church plan as defined by Section 414(e), Internal Revenue Code. (V.A.C.S. 1407a, Sec. 3.) Sec. 22.404. POWER TO ACT AS TRUSTEE. A church benefits board may act as: (1) a trustee under a lawful trust committed to the board by contract, will, or otherwise; and (2) an agent for the performance of a lawful act relating to the purposes of the trust. (V.A.C.S. 1407a, Sec. 4 (part).) Sec. 22.405. DOCUMENTS AND AGREEMENTS. A church benefits board may provide to a program participant a certificate or agreement of participation, a debenture, or an indemnification agreement, as appropriate to accomplish the purposes of the board. (V.A.C.S. 1407a, Sec. 4 (part).) Sec. 22.406. INDEMNIFICATION. A church benefits board, or an affiliate wholly owned by the board, may agree to indemnify against damage or risk of loss: (1) a minister, teacher, employee, trustee, functionary, or director affiliated with the board or a family member, dependent, or beneficiary of one of those persons; (2) a church or a convention, conference, or association of churches; or (3) an organization that is controlled by or affiliated with the board or with a church or a convention, conference, or association of churches. (V.A.C.S. 1407a, Sec. 5.) Sec. 22.407. PROTECTION OF BENEFITS. (a) Money or other benefits that have been or will be provided to a participant or a beneficiary under a plan or program provided by or through a church benefits board under this subchapter are not subject to execution, attachment, garnishment, or other process and may not be appropriated or applied as part of a judicial, legal, or equitable process or operation of a law other than a constitution to pay a debt or liability of the participant or beneficiary. (b) This section does not apply to a qualified domestic relations order or an amount required by the church benefits board to recover costs or expenses incurred in the plan or program. (V.A.C.S. 1407a, Sec. 6.) Sec. 22.408. ASSIGNMENT OF BENEFITS. An assignment or transfer or an attempt to make an assignment or transfer by a beneficiary of money, benefits, or other rights under a plan or program under this subchapter is void if: (1) the plan or program contains a provision prohibiting the assignment or other transfer without the written consent of the church benefits board; and (2) the beneficiary assigns or transfers or attempts to make an assignment or transfer without that consent. (V.A.C.S. 1407a, Sec. 7.) Sec. 22.409. INSURANCE CODE NOT APPLICABLE. The Insurance Code does not apply to a church benefits board or a program, plan, benefit, or activity of the board or a person affiliated with the board. (V.A.C.S. 1407a, Sec. 8.)
CHAPTER 23. SPECIAL-PURPOSE CORPORATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 23.001. DETERMINATION OF APPLICABLE LAW. (a) A corporation created under this chapter or under a special statute outside this code, to the extent not inconsistent with a special statute regarding a particular corporation, is governed by: (1) Title 1 and Chapter 21, if the corporation is organized for profit; and (2) Title 1 and Chapter 22, if the corporation is organized not for profit. (b) If a special statute does not contain any provision regarding a matter provided for in Title 1 or Chapter 21 or 22, or if the special statute specifically provides that the general laws for corporations supplement the statute, to the extent consistent with the special statute: (1) Title 1 and Chapter 21 apply to a corporation organized for profit; and (2) Title 1 and Chapter 22 apply to a corporation organized not for profit. (TBCA 9.14.A; TMCLA 1.03; TNPCA 10.04.A, C.) Sec. 23.002. APPLICABILITY OF FILING REQUIREMENTS. Except as otherwise provided by the special statute, a document to be filed with the secretary of state under a special statute shall be executed and filed in accordance with Chapter 4. (New.) Sec. 23.003. DOMESTIC CORPORATION ORGANIZED UNDER SPECIAL STATUTE. A corporation organized under a special statute other than this code is not considered a "domestic corporation" formed under this code, although this code may apply to the corporation. (New.)
[Sections 23.004-23.050 reserved for expansion]
SUBCHAPTER B. BUSINESS DEVELOPMENT CORPORATIONS
Sec. 23.051. DEFINITIONS. In this subchapter: (1) "Corporation" means a business development corporation organized under this subchapter. (2) "Financial institution" means a banking corporation or trust company, savings and loan association, governmental agency, insurance company, or related corporation, partnership, foundation, or other institution engaged primarily in lending or investing funds. (3) "Loan limit" means the maximum amount permitted to be outstanding at one time on loans made by a member to a corporation. (4) "Member" means a financial institution authorized to do business in this state that undertakes to lend money to a corporation. (V.A.C.S. 1528g, Sec. 1.) Sec. 23.052. ORGANIZERS. Subject to The Securities Act (Article 581-1 et seq., Vernon's Texas Civil Statutes), 25 or more persons, the majority of whom must be residents of this state, may form a business development corporation to promote, develop, and advance the prosperity and economic welfare of this state. (V.A.C.S. 1528g, Sec. 2(a).) Sec. 23.053. PURPOSES. (a) A business development corporation may be organized as a: (1) for-profit corporation under Chapter 21; or (2) nonprofit corporation under Chapter 22. (b) The business development corporation must be organized to: (1) promote, stimulate, develop, and advance the business prosperity and economic welfare of this state and the residents of this state; (2) encourage and assist, through loans, investments, or other business transactions, new business and industry in this state; (3) rehabilitate and assist existing industry in this state; (4) stimulate and assist in the expansion of business activity that will tend to promote the business development and maintain the economic stability of this state, provide maximum opportunities for employment, encourage thrift, and improve the standard of living of the residents of this state; (5) cooperate and act in conjunction with other public or private organizations in the promotion and advancement of industrial, commercial, agricultural, and recreational developments in this state; or (6) provide financing for the promotion, development, and conduct of business activity in this state. (V.A.C.S. 1528g, Secs. 2(b), (c) (part).) Sec. 23.054. POWERS. (a) The powers of a corporation include, in addition to the powers conferred on the corporation by Chapters 2 and 21 or 22, as applicable, the power to: (1) elect, appoint, and employ officers, agents, and employees; (2) make contracts and incur liabilities for a purpose of the corporation; (3) borrow money on a secured or unsecured basis to carry out a purpose of the corporation; (4) issue for the purpose of borrowing money a bond, debenture, note, or other evidence of indebtedness, whether secured or unsecured; (5) secure an evidence of indebtedness by mortgage, pledge, deed of trust, or other lien on a property, franchise, right, or privilege of the corporation, or any part of or interest in those items, without securing shareholder or member approval; (6) make a secured or unsecured loan and establish and regulate the terms and conditions of that loan and the charges for interest or service connected with that loan; (7) purchase, receive, hold, lease, or otherwise acquire, and sell, convey, transfer, lease, or otherwise dispose of, property and exercise those rights and privileges incidental and appurtenant to the acquisition or disposal of the property and to the use of the property, including any property acquired by the corporation periodically in the satisfaction of a debt or enforcement of an obligation; (8) acquire improved or unimproved real property to construct an industrial plant or other business establishment on the property or dispose of the real property for the construction of an industrial plant or other business establishment; (9) acquire, construct or reconstruct, alter, repair, maintain, operate, sell, convey, transfer, lease, or otherwise dispose of an industrial plant or business establishment; (10) protect the corporation's position as creditor by acquiring the goodwill, business, rights, property, including a share, bond, debenture, note, other evidence of indebtedness, other asset, or any part of an asset or interest in an asset, of a person to whom the corporation loaned money and assume, undertake, or pay an obligation, debt, or liability of the person; (11) mortgage, pledge, or otherwise encumber any property, right, or thing of value, acquired under Subdivision (7), (8), (9), or (10), as security for the payment of a part of the purchase price; (12) promote the establishment of local development corporations in the various communities of this state, enter into agreements with those local development corporations, and cooperate with, assist, or otherwise encourage the local foundations; and (13) participate with a properly authorized federal lending agency in the making of loans. (b) A corporation may approve an application for a loan under Subsection (a)(6) only if the applicant demonstrates that: (1) the applicant applied for the loan through ordinary banking channels; and (2) the loan has been refused by at least two banks or other financial institutions. (V.A.C.S. 1528g, Sec. 3(a).) Sec. 23.055. STATEWIDE OPERATION. A corporation organized under this subchapter is a state development company as defined by Section 103, Small Business Investment Act of 1958 (15 U.S.C. Section 662), as amended, or similar federal legislation, and may operate on a statewide basis. (V.A.C.S. 1528g, Sec. 3(b).) Sec. 23.056. CERTIFICATE OF FORMATION. (a) The certificate of formation of a corporation must state: (1) the name of the corporation; (2) the purpose or purposes for which the corporation is organized as required by Section 23.053; and (3) any other information required by: (A) Chapter 4; and (B) Chapter 21 or 22, as applicable. (b) The name of a corporation must include the words "Business Development Corporation." (V.A.C.S. 1528g, Sec. 2(c) (part).) Sec. 23.057. MANAGEMENT BY BOARD OF DIRECTORS; NUMBER OF DIRECTORS. (a) The organization, control, and management of a corporation are vested in a board of directors. The board must consist of not fewer than 15 and not more than 21 directors. (b) The board of directors may exercise any power of the corporation not conferred on the shareholders or members by law or by the corporation's bylaws. (V.A.C.S. 1528g, Secs. 9(a), (b).) Sec. 23.058. ELECTION OR APPOINTMENT OF DIRECTORS. (a) The incorporators of a corporation shall name the directors constituting the initial board of directors of the corporation. Directors other than the initial directors shall be elected at each annual meeting of the corporation. If an annual meeting is not held at the time designated by the bylaws of the corporation, the directors shall be elected at a special meeting held in lieu of the annual meeting. (b) At an annual meeting or special meeting held in lieu of the annual meeting, the members of the corporation shall elect two-thirds of the directors, and the shareholders of the corporation shall elect the remaining directors. (V.A.C.S. 1528g, Secs. 9(d), (e).) Sec. 23.059. TERM OF OFFICE; VACANCY. (a) A director of a corporation holds office until the next annual election of directors and until a successor is elected and qualified, unless the director is removed at an earlier date in accordance with the corporation's bylaws. (b) A vacancy in the office of a director elected by the members shall be filled by the directors elected by the members, and a vacancy in the office of a director elected by the shareholders shall be filled by the directors elected by the shareholders. (V.A.C.S. 1528g, Secs. 9(f), (g).) Sec. 23.060. OFFICERS. The board of directors of a corporation shall appoint a president, a treasurer, and any other agent or officer of the corporation and shall fill each vacancy other than a vacancy on the board. (V.A.C.S. 1528g, Sec. 9(c) (part).) Sec. 23.061. PARTICIPATION AS OWNER. (a) An individual, corporation, or other organization authorized to conduct business in this state, including a public utility company, insurance and casualty company, or foreign corporation licensed to do business in this state, or a trust may acquire, purchase, hold, sell, assign, transfer, mortgage, pledge, or otherwise dispose of a bond, security, or other evidence of indebtedness created by, or shares of, the corporation. (b) An owner of shares of the corporation may exercise any right, power, or privilege of that ownership, including the right to vote. (V.A.C.S. 1528g, Sec. 4.) Sec. 23.062. FINANCIAL INSTITUTION AS MEMBER OF CORPORATION. (a) A financial institution may become a member of a corporation and may make loans to the corporation as provided by this chapter. (b) A financial institution may request membership in the corporation by applying to the corporation's board of directors in the manner prescribed by the board. Membership in the corporation takes effect on the board's acceptance of the application. (c) A financial institution that is a member of a corporation may acquire, purchase, hold, sell, assign, transfer, mortgage, pledge, or otherwise dispose of a bond, security, or other evidence of indebtedness created by, or a share of, the corporation. As owner of shares of the corporation, a financial institution may exercise any right, power, or privilege of that ownership, including the right to vote. A member of a corporation may not acquire shares of the corporation in an amount greater than 10 percent of the member's loan limit. The amount of shares of the corporation that a member may acquire is in addition to the amount of shares of corporations that the member may otherwise acquire. (d) A financial institution that is not a member of the corporation may not acquire any shares of the corporation. (V.A.C.S. 1528g, Sec. 5.) Sec. 23.063. WITHDRAWAL OF MEMBER. (a) On written notice to the corporation's board of directors, a member may withdraw from a corporation on the date stated in the notice. The date of a member's withdrawal must be at least six months after the date notice is given under this subsection. (b) A member is not obligated to make a loan to the corporation pursuant to a call made after the date of the member's withdrawal from the corporation, but a member shall fulfill any obligation that has accrued or for which a commitment has been made before the withdrawal date. (V.A.C.S. 1528g, Sec. 7.) Sec. 23.064. POWERS OF SHAREHOLDERS AND MEMBERS. The shareholders and members of a corporation may: (1) determine the number of directors and elect the directors as provided by Section 23.058; (2) make, amend, and repeal bylaws of the corporation; or (3) exercise any other power of the corporation that is conferred on the shareholders and members by the bylaws. (V.A.C.S. 1528g, Sec. 8(a).) Sec. 23.065. VOTING BY SHAREHOLDER OR MEMBER. (a) Each shareholder of a corporation has one vote, in person or by proxy, for each share held by the shareholder. (b) Each member of a corporation has one vote in person or by proxy. (c) A member with a loan limit that exceeds $1,000 has one additional vote, in person or by proxy, for each additional $1,000 the member may have outstanding on loans to the corporation at any one time as determined under Section 23.068. (V.A.C.S. 1528g, Sec. 8(b).) Sec. 23.066. LOAN TO CORPORATION. (a) When called on by a corporation to make a loan to the corporation, a member of the corporation shall make the loan on those terms and conditions periodically approved by the board of directors. (b) A loan made to the corporation by a member shall be evidenced by a bond, debenture, note, or other evidence of indebtedness of the corporation that: (1) is freely transferable at any time; and (2) accrues interest at a rate of not less than one-fourth of one percent more than the rate of interest determined by the board of directors to be the prime rate prevailing on the date of issuance on unsecured commercial loans. (V.A.C.S. 1528g, Secs. 6(a), (f).) Sec. 23.067. PROHIBITED LOAN. (a) A member may not make a loan to a corporation if, immediately after the loan would be made, the total amount of the obligations of the corporation would exceed 50 times the capital of the corporation. (b) For purposes of this section, the capital of the corporation includes the amount of the outstanding shares of the corporation, whether common or preferred, and the earned or paid-in surplus of the corporation. (V.A.C.S. 1528g, Sec. 6(c).) Sec. 23.068. LOAN LIMITS. (a) A loan limit shall be established at the $1,000 amount nearest to the amount computed in accordance with this section. (b) The total amount outstanding on loans made to a corporation by a member at any one time, when added to the amount of the investment in the shares of the corporation then held by the member, may not exceed: (1) 20 percent of the total amount then outstanding on loans to the corporation by all members, including outstanding amounts validly called for a loan but not yet loaned; or (2) the following limit, to be determined as of the time the member becomes a member of the corporation, or at any time requested by a member on the basis of the audited balance sheet of the member at the close of its fiscal year immediately preceding its application for membership or, in the case of an insurance company, its last annual statement to the Texas Department of Insurance: (A) an amount equal to the lesser of $750,000 or two percent of the capital and surplus of a commercial bank or trust company; (B) an amount equal to one percent of the total outstanding loans made by a savings and loan association; (C) an amount equal to one percent of the capital and unassigned surplus of a stock insurance company other than a fire insurance company; (D) an amount equal to one percent of the unassigned surplus of a mutual insurance company other than a fire insurance company; (E) an amount equal to one-tenth of one percent of the assets of a fire insurance company; or (F) the limits approved by the board of directors of the corporation for a government pension fund or other financial institution. (c) Subject to Subsection (b), each call made by the corporation shall be prorated among the members of the corporation in substantially the same proportion that the adjusted loan limit of each member bears to the aggregate of the adjusted loan limits of all members. (d) For purposes of Subsection (c), the adjusted loan limit of a member is the amount of the member's loan limit, reduced by the balance of outstanding loans made by the member to the corporation and the investment in shares of the corporation held by the member at the time of the call. (V.A.C.S. 1528g, Secs. 6(b), (d), (e).) Sec. 23.069. SURPLUS. (a) A corporation shall set apart as earned surplus not less than 10 percent of the corporation's net earnings each year until the surplus, with any unimpaired surplus paid in, is equal to one-half of the amount paid in on the shares then outstanding. The surplus shall be kept to secure against losses and contingencies. If the surplus becomes impaired, the surplus shall be reimbursed in the manner provided for its accumulation. (b) Net earnings and surplus shall be determined by the board of directors after providing for the required reserves as the directors consider advisable. A good faith determination of net earnings and surplus by the directors under this subsection is conclusive. (V.A.C.S. 1528g, Sec. 10.) Sec. 23.070. DEPOSITORY. (a) A corporation may deposit the corporation's funds in a banking institution that has been designated as a depository by a vote of the majority of the directors present at an authorized meeting of the board of directors of the corporation, excluding a director who is an officer or director of the designated depository. (b) The corporation may not receive money on deposit. (V.A.C.S. 1528g, Sec. 11.) Sec. 23.071. ANNUAL REPORT; PROVISION OF REQUIRED INFORMATION. (a) A corporation shall annually make a report of its condition to the banking commissioner and the Texas Department of Insurance. (b) A corporation shall provide any information that is required by the secretary of state. (V.A.C.S. 1528g, Sec. 12.)
[Sections 23.072-23.100 reserved for expansion]
SUBCHAPTER C. GRAND LODGES
Sec. 23.101. FORMATION. (a) An institution or order, by resolution or other consent of its members, may incorporate under this subchapter if the institution or order is: (1) the grand lodge of Texas, Ancient, Free and Accepted Masons; (2) the Grand Royal Arch Chapter of Texas; (3) the Grand Commandery of Knights Templars of Texas; (4) the grand lodge of the Independent Order of Odd Fellows of Texas; or (5) another similar institution or order organized for charitable or benevolent purposes. (b) A corporation formed under this subchapter shall file a certificate of formation in accordance with Chapter 4 that complies with this subchapter. (V.A.C.S. 1399; New.) Sec. 23.102. APPLICABILITY OF CHAPTER 22. If this subchapter does not contain any provision regarding a matter provided for in Chapter 22, to the extent consistent with this subchapter, Chapter 22 applies to a corporation formed under this subchapter. (TMCLA 1.03.A (part).) Sec. 23.103. DURATION. A grand body that incorporates under this subchapter may provide in the grand body's certificate of formation for the expiration of its corporate powers at the end of a stated number of years. If the certificate of formation does not provide for the duration of the grand body, the grand body has perpetual existence. The grand body may by its corporate name have perpetual succession of its officers and members. (V.A.C.S. 1405.) Sec. 23.104. SUBORDINATE LODGES. (a) The incorporation of a grand body includes each of its subordinate lodges or bodies holding a warrant or charter under the grand body. (b) A subordinate body has all of the rights of other corporations under and by the name given to the grand body in the warrant or charter issued to the grand body to which it is attached. Those rights shall be provided for in the charter of the grand body. (c) A subordinate body is subject to the jurisdiction and control of its respective grand body, and the warrant or charter of the subordinate body may be revoked by the grand body. (V.A.C.S. 1400.) Sec. 23.105. TRUSTEES AND DIRECTORS. A grand body and a subordinate of the grand body may elect trustees and directors or may appoint trustees or directors from among their officers. (V.A.C.S. 1401 (part).) Sec. 23.106. FRANCHISE TAXES. A corporation formed under this subchapter is not subject to or required to pay a franchise tax, except that a corporation is exempt from the franchise tax imposed by Chapter 171, Tax Code, only if the corporation is exempted by that chapter. (V.A.C.S. 1407.) Sec. 23.107. GENERAL POWERS. A grand body and a subordinate of the grand body may take action as directed or provided by law in the case of other corporations and may make constitutions and bylaws to govern their affairs. (V.A.C.S. 1401 (part).) Sec. 23.108. AUTHORITY REGARDING PROPERTY. (a) A grand body or subordinate body may acquire and hold property as necessary or convenient for a site on which to erect a building for the use and occupancy of the body and to erect homes and schools for members' widows or orphans or elderly, disabled, or indigent members and may sell or mortgage the property. (b) A conveyance must be executed by the presiding officer and attested to by the secretary with the seal. (c) The authority of a subordinate body to sell or to mortgage property is subject to the conditions periodically prescribed or established by the grand body to which the subordinate is attached. (V.A.C.S. 1402.) Sec. 23.109. AUTHORITY REGARDING LOANS. (a) A grand body incorporated under this subchapter may: (1) loan money held and owned by the grand body for charitable purposes, for the endowment of any of the institutions of the grand body, or otherwise; and (2) secure loans by taking and receiving liens on real property or by another method elected by the grand body. (b) On sale of real property secured by a lien, a grand body may become the purchaser of the real property and hold title to the property. (V.A.C.S. 1404.) Sec. 23.110. WINDING UP AND TERMINATION OF SUBORDINATE BODY. (a) On the winding up and termination of a subordinate body attached to a grand body, all property and rights existing in the subordinate body pass to and vest in the grand body to which it was attached, subject to the payment of any debt owed by the subordinate body. (b) Notwithstanding a grand body's liability for the debt of a subordinate body under Subsection (a), the grand body is not liable for an amount greater than the actual cash value of the subordinate body's effects or authority. (V.A.C.S. 1403.)
TITLE 3. LIMITED LIABILITY COMPANIES
CHAPTER 101. LIMITED LIABILITY COMPANIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 101.001. DEFINITIONS. In this title: (1) "Company agreement" means any agreement, written or oral, of the members concerning the affairs or the conduct of the business of a limited liability company. A company agreement of a limited liability company having only one member is not unenforceable because only one person is a party to the company agreement. (2) "Foreign limited liability company" or "foreign company" means a limited liability company formed under the laws of a jurisdiction other than this state. (3) "Limited liability company" or "company" means a domestic limited liability company subject to this title. (TLLCA 1.02.A(3), (9); New.)
[Sections 101.002-101.050 reserved for expansion]
SUBCHAPTER B. FORMATION AND GOVERNING DOCUMENTS
Sec. 101.051. CERTAIN PROVISIONS CONTAINED IN CERTIFICATE OF FORMATION. (a) A provision that may be contained in the company agreement of a limited liability company may alternatively be included in the certificate of formation of the company as provided by Section 3.005(b). (b) A reference in this title to the company agreement of a limited liability company includes any provision contained in the company's certificate of formation instead of the company agreement as provided by Subsection (a). (TLLCA 2.09.A (part), 3.02.A (part).) Sec. 101.052. COMPANY AGREEMENT. (a) Except as provided by Section 101.054, the company agreement of a limited liability company governs: (1) the relations among members, managers, and officers of the company, assignees of membership interests in the company, and the company itself; and (2) other internal affairs of the company. (b) To the extent that the company agreement of a limited liability company does not otherwise provide, this title and the provisions of Title 1 applicable to a limited liability company govern the internal affairs of the company. (c) Except as provided by Section 101.054, a provision of this title or Title 1 that is applicable to a limited liability company may be waived or modified in the company agreement of a limited liability company. (d) The company agreement may contain any provisions for the regulation and management of the affairs of the limited liability company not inconsistent with law or the certificate of formation. (TLLCA 2.09.A (part).) Sec. 101.053. AMENDMENT OF COMPANY AGREEMENT. The company agreement of a limited liability company may be amended only if each member of the company consents to the amendment. (TLLCA 2.09.B.) Sec. 101.054. WAIVER OR MODIFICATION OF CERTAIN STATUTORY PROVISIONS PROHIBITED; EXCEPTIONS. (a) Except as provided by this section, the following provisions may not be waived or modified in the company agreement of a limited liability company: (1) this section; (2) Section 101.101(b), 101.206, 101.501, or 101.502; (3) Chapter 1, if the provision is used to interpret a provision or define a word or phrase contained in a section listed in this subsection; (4) Chapter 2, except that Section 2.104(c)(2), 2.104(c)(3), or 2.113 may be waived or modified in the company agreement; (5) Chapter 3, except that Subchapters C and E may be waived or modified in the company agreement; or (6) Chapter 4, 5, 7, 10, 11, or 12, other than Section 11.056. (b) A provision listed in Subsection (a) may be waived or modified in the company agreement if the provision that is waived or modified authorizes the limited liability company to waive or modify the provision in the company's governing documents. (c) A provision listed in Subsection (a) may be modified in the company agreement if the provision that is modified specifies: (1) the person or group of persons entitled to approve a modification; or (2) the vote or other method by which a modification is required to be approved. (d) A provision in this title or in that part of Title 1 applicable to a limited liability company that grants a right to a person, other than a member, manager, officer, or assignee of a membership interest in a limited liability company, may be waived or modified in the company agreement of the company only if the person consents to the waiver or modification. (New.)
[Sections 101.055-101.100 reserved for expansion]
SUBCHAPTER C. MEMBERSHIP
Sec. 101.101. MEMBERS REQUIRED. (a) A limited liability company may have one or more members. Except as provided by this section, a limited liability company must have at least one member. (b) A limited liability company that has managers is not required to have any members during a reasonable period between the date the company is formed and the date the first member is admitted to the company. (c) A limited liability company is not required to have any members during the period between the date the continued membership of the last remaining member of the company is terminated and the date the agreement to continue the company described by Section 11.056 is executed. (TLLCA 4.01.A (part); New.) Sec. 101.102. QUALIFICATION FOR MEMBERSHIP. (a) A person may be a member of or acquire a membership interest in a limited liability company unless the person lacks capacity apart from this code. (b) A person is not required, as a condition to becoming a member of or acquiring a membership interest in a limited liability company, to: (1) make a contribution to the company; (2) otherwise pay cash or transfer property to the company; or (3) assume an obligation to make a contribution or otherwise pay cash or transfer property to the company. (TLLCA 4.01.C; New.) Sec. 101.103. EFFECTIVE DATE OF MEMBERSHIP. (a) A person who acquires a membership interest in a limited liability company in connection with the formation of the company becomes a member of the company on the date the company is formed if the person is named as an initial member in the company's certificate of formation. (b) A person who acquires a membership interest in a limited liability company during the formation of the company but who is not named as an initial member in the company's certificate of formation becomes a member of the company on the latest of: (1) the date the company is formed; (2) the date stated in the company's records as the date the person becomes a member of the company; or (3) if the company's records do not state a date described by Subdivision (2), the date the person's admission to the company is first reflected in the company's records. (c) A person who, after the formation of a limited liability company, acquires directly or is assigned a membership interest in the company becomes a member of the company on approval or consent of all of the company's members. (TLLCA 4.01.A (part), B.) Sec. 101.104. CLASSES OR GROUPS OF MEMBERS OR MEMBERSHIP INTERESTS. (a) The company agreement of a limited liability company may: (1) establish within the company classes or groups of one or more members or membership interests each of which has certain expressed relative rights, powers, and duties, including voting rights; and (2) provide for the manner of establishing within the company additional classes or groups of one or more members or membership interests each of which has certain expressed relative rights, powers, and duties, including voting rights. (b) The rights, powers, and duties of a class or group of members or membership interests described by Subsection (a)(2) may be stated in the company agreement or stated at the time the class or group is established. (c) If the company agreement of a limited liability company does not provide for the manner of establishing classes or groups of members or membership interests under Subsection (a)(2), additional classes or groups of members or membership interests may be established only by the adoption of an amendment to the company agreement. (d) The rights, powers, or duties of any class or group of members or membership interests of a limited liability company may be senior to the rights, powers, or duties of any other class or group of members or membership interests in the company, including a previously established class or group. (TLLCA 4.02.) Sec. 101.105. ISSUANCE OF MEMBERSHIP INTERESTS AFTER FORMATION OF COMPANY. A limited liability company, after the formation of the company, may: (1) issue membership interests in the company to any person with the approval of all of the members of the company; and (2) if the issuance of a membership interest requires the establishment of a new class or group of members or membership interests, establish a new class or group as provided by Sections 101.104(a)(2), (b), and (c). (TLLCA 2.23.D (part), 4.02.A.) Sec. 101.106. NATURE OF MEMBERSHIP INTEREST. (a) A membership interest in a limited liability company is personal property. (b) A member of a limited liability company or an assignee of a membership interest in a limited liability company does not have an interest in any specific property of the company. (TLLCA 4.04.) Sec. 101.107. WITHDRAWAL OR EXPULSION OF MEMBER PROHIBITED. A member of a limited liability company may not withdraw or be expelled from the company. (TLLCA 5.05.) Sec. 101.108. ASSIGNMENT OF MEMBERSHIP INTEREST. (a) A membership interest in a limited liability company may be wholly or partly assigned. (b) An assignment of a membership interest in a limited liability company: (1) is not an event requiring the winding up of the company; and (2) does not entitle the assignee to: (A) participate in the management and affairs of the company; (B) become a member of the company; or (C) exercise any rights of a member of the company. (TLLCA 4.05.A (part).) Sec. 101.109. RIGHTS AND DUTIES OF ASSIGNEE OF MEMBERSHIP INTEREST BEFORE MEMBERSHIP. (a) A person who is assigned a membership interest in a limited liability company is entitled to: (1) receive any allocation of income, gain, loss, deduction, credit, or a similar item that the assignor is entitled to receive to the extent the allocation of the item is assigned; (2) receive any distribution the assignor is entitled to receive to the extent the distribution is assigned; (3) require, for any proper purpose, reasonable information or a reasonable account of the transactions of the company; and (4) make, for any proper purpose, reasonable inspections of the books and records of the company. (b) An assignee of a membership interest in a limited liability company is entitled to become a member of the company on the approval of all of the company's members. (c) An assignee of a membership interest in a limited liability company is not liable as a member of the company until the assignee becomes a member of the company. (TLLCA 4.05.A (part), C, 4.07.A.) Sec. 101.110. RIGHTS AND LIABILITIES OF ASSIGNEE OF MEMBERSHIP INTEREST AFTER BECOMING MEMBER. (a) An assignee of a membership interest in a limited liability company, after becoming a member of the company, is: (1) entitled, to the extent assigned, to the same rights and powers granted or provided to a member of the company by the company agreement or this code; (2) subject to the same restrictions and liabilities placed or imposed on a member of the company by the company agreement or this code; and (3) except as provided by Subsection (b), liable for the assignor's obligation to make contributions to the company. (b) An assignee of a membership interest in a limited liability company, after becoming a member of the company, is not obligated for a liability of the assignor that: (1) the assignee did not have knowledge of on the date the assignee became a member of the company; and (2) could not be ascertained from the company agreement. (TLLCA 4.07.B.) Sec. 101.111. RIGHTS AND DUTIES OF ASSIGNOR OF MEMBERSHIP INTEREST. (a) An assignor of a membership interest in a limited liability company continues to be a member of the company and is entitled to exercise any unassigned rights or powers of a member of the company until the assignee becomes a member of the company. (b) An assignor of a membership interest in a limited liability company is not released from the assignor's liability to the company, regardless of whether the assignee of the membership interest becomes a member of the company. (TLLCA 4.05.A (part), 4.07.C.) Sec. 101.112. JUDGMENT CREDITOR; CHARGE OF MEMBERSHIP INTEREST. (a) On application by a judgment creditor of a member of a limited liability company or any other owner of a membership interest in a limited liability company, a court may charge the membership interest of the member or owner, as appropriate, with payment of the unsatisfied amount of the judgment. (b) If a court charges a membership interest with payment of a judgment as provided by Subsection (a), the judgment creditor has only the rights of an assignee of the membership interest. (c) This section may not be construed to deprive a member of a limited liability company or any other owner of a membership interest in a limited liability company of the benefit of any exemption laws applicable to the membership interest of the member or owner. (TLLCA 4.06.) Sec. 101.113. PARTIES TO ACTIONS. A member of a limited liability company may be named as a party in an action by or against the limited liability company only if the action is brought to enforce the member's right against or liability to the company. (TLLCA 4.03.C.) Sec. 101.114. LIABILITY FOR OBLIGATIONS. Except as and to the extent the company agreement specifically provides otherwise, a member or manager is not liable for a debt, obligation, or liability of a limited liability company, including a debt, obligation, or liability under a judgment, decree, or order of a court. (TLLCA 4.03.A.)
[Sections 101.115-101.150 reserved for expansion]
SUBCHAPTER D. CONTRIBUTIONS
Sec. 101.151. REQUIREMENTS FOR ENFORCEABLE PROMISE. A promise to make a contribution or otherwise pay cash or transfer property to a limited liability company is enforceable only if the promise is: (1) in writing; and (2) signed by the person making the promise. (TLLCA 5.02.A.) Sec. 101.152. ENFORCEABLE PROMISE NOT AFFECTED BY CHANGE IN CIRCUMSTANCES. A member of a limited liability company is obligated to perform an enforceable promise to make a contribution or otherwise pay cash or transfer property to the company without regard to the death, disability, or other change in circumstances of the member. (TLLCA 5.02.B (part).) Sec. 101.153. FAILURE TO PERFORM ENFORCEABLE PROMISE; CONSEQUENCES. (a) A member of a limited liability company, or the member's legal representative or successor, who does not perform an enforceable promise to make a contribution, including a previously made contribution, or to otherwise pay cash or transfer property to the company, is obligated, at the request of the company, to pay in cash the agreed value of the contribution, as stated in the company agreement or the company's records required under Sections 3.151 and 101.501, less: (1) any amount already paid for the contribution; and (2) the value of any property already transferred. (b) The company agreement of a limited liability company may provide that the membership interest of a member who fails to perform an enforceable promise to make a payment of cash or transfer property to the company, whether as a contribution or in connection with a contribution already made, may be: (1) reduced; (2) subordinated to other membership interests of nondefaulting members; (3) redeemed or sold at a value determined by appraisal or other formula; or (4) made the subject of: (A) a forced sale; (B) forfeiture; (C) a loan from other members of the company in an amount necessary to satisfy the enforceable promise; or (D) another penalty or consequence. (TLLCA 5.02.B (part), C.) Sec. 101.154. CONSENT REQUIRED TO RELEASE ENFORCEABLE OBLIGATION. The obligation of a member of a limited liability company, or of the member's legal representative or successor, to make a contribution or otherwise pay cash or transfer property to the company, or to return cash or property to the company paid or distributed to the member in violation of this code or the company agreement, may be released or settled only by consent of each member of the company. (TLLCA 5.02.D (part).) Sec. 101.155. CREDITOR'S RIGHT TO ENFORCE CERTAIN OBLIGATIONS. A creditor of a limited liability company who extends credit or otherwise acts in reasonable reliance on an enforceable obligation of a member of the company that is released or settled as provided by Section 101.154 may enforce the original obligation if the obligation is stated in a document that is: (1) signed by the member; and (2) not amended or canceled to evidence the release or settlement of the obligation. (TLLCA 5.02.D (part).) Sec. 101.156. REQUIREMENTS TO ENFORCE CONDITIONAL OBLIGATION. (a) An obligation of a member of a limited liability company that is subject to a condition may be enforced by the company or a creditor described by Section 101.155 only if the condition is satisfied or waived by or with respect to the member. (b) A conditional obligation of a member of a limited liability company under this section includes a contribution payable on a discretionary call of the limited liability company before the time the call occurs. (TLLCA 5.02.D (part).)
[Sections 101.157-101.200 reserved for expansion]
SUBCHAPTER E. ALLOCATIONS AND DISTRIBUTIONS
Sec. 101.201. ALLOCATION OF PROFITS AND LOSSES. The profits and losses of a limited liability company shall be allocated to each member of the company in accordance with the member's percentage or other interest in the company on the date of the allocation as stated in the company's records required under Sections 3.151 and 101.501. (TLLCA 5.02-1.) Sec. 101.202. DISTRIBUTION IN KIND. A member of a limited liability company is entitled to receive or demand a distribution from the company only in the form of cash, regardless of the form of the member's contribution to the company. (TLLCA 5.07.) Sec. 101.203. SHARING OF DISTRIBUTIONS. Distributions of cash and other assets of a limited liability company shall be made to each member of the company according to the agreed value of the member's contribution to the company as stated in the company's records required under Sections 3.151 and 101.501. (TLLCA 5.03.) Sec. 101.204. INTERIM DISTRIBUTIONS. A member of a limited liability company, before the winding up of the company, is not entitled to receive and may not demand a distribution from the company until the company's governing authority declares a distribution to: (1) each member of the company; or (2) a class or group of members that includes the member. (TLLCA 5.04.) Sec. 101.205. DISTRIBUTION ON WITHDRAWAL. A member of a limited liability company who validly exercises the member's right to withdraw from the company granted under the company agreement is entitled to receive, within a reasonable time after the date of withdrawal, the fair value of the member's interest in the company as determined as of the date of withdrawal. (TLLCA 5.06.) Sec. 101.206. PROHIBITED DISTRIBUTION; DUTY TO RETURN. (a) A limited liability company may not make a distribution to a member of the company if, immediately after making the distribution, the company's total liabilities, other than liabilities described by Subsection (b), exceed the fair value of the company's total assets. (b) For purposes of Subsection (a), the liabilities of a limited liability company do not include: (1) a liability related to the member's membership interest; or (2) except as provided by Subsection (c), a liability for which the recourse of creditors is limited to specified property of the company. (c) For purposes of Subsection (a), the assets of a limited liability company include the fair value of property subject to a liability for which recourse of creditors is limited to specified property of the company only if the fair value of that property exceeds the liability. (d) A member of a limited liability company who receives a distribution from the company in violation of this section is required to return the distribution to the company if the member had knowledge of the violation. (e) This section may not be construed to affect the obligation of a member of a limited liability company to return a distribution to the company under the company agreement or other state or federal law. (TLLCA 5.09.) Sec. 101.207. CREDITOR STATUS WITH RESPECT TO DISTRIBUTION. Subject to Sections 11.053 and 101.206, when a member of a limited liability company is entitled to receive a distribution from the company, the member, with respect to the distribution, has the same status as a creditor of the company and is entitled to any remedy available to a creditor of the company. (TLLCA 5.08.)
[Sections 101.208-101.250 reserved for expansion]
SUBCHAPTER F. MANAGEMENT
Sec. 101.251. MEMBERSHIP. The governing authority of a limited liability company consists of: (1) the managers of the company, if the company's certificate of formation states that the company will have one or more managers; or (2) the members of the company, if the company's certificate of formation states that the company will not have managers. (TLLCA 2.12 (part).) Sec. 101.252. MANAGEMENT BY GOVERNING AUTHORITY. The governing authority of a limited liability company shall manage the business and affairs of the company as provided by: (1) the company agreement; and (2) this title and the provisions of Title 1 applicable to a limited liability company to the extent that the company agreement does not provide for the management of the company. (TLLCA 2.12.) Sec. 101.253. DESIGNATION OF COMMITTEES; DELEGATION OF AUTHORITY. (a) The governing authority of a limited liability company by resolution may designate: (1) one or more committees of the governing authority consisting of one or more governing persons of the company; and (2) subject to any limitation imposed by the governing authority, a governing person to serve as an alternate member of a committee designated under Subdivision (1) at a committee meeting from which a member of the committee is absent or disqualified. (b) A committee of the governing authority of a limited liability company may exercise the authority of the governing authority as provided by the resolution designating the committee. (c) The designation of a committee under this section does not relieve the governing authority of any responsibility imposed by law. (TLLCA 2.12 (part), 2.18.A, C.) Sec. 101.254. DESIGNATION OF AGENTS; BINDING ACTS. (a) Except as provided by this title and Title 1, each governing person of a limited liability company and each officer or agent of a limited liability company vested with actual or apparent authority by the governing authority of the company is an agent of the company for purposes of carrying out the company's business. (b) An act committed by an agent of a limited liability company described by Subsection (a) for the purpose of apparently carrying out the ordinary course of business of the company, including the execution of an instrument, document, mortgage, or conveyance in the name of the company, binds the company unless: (1) the agent does not have actual authority to act for the company; and (2) the person with whom the agent is dealing has knowledge of the agent's lack of actual authority. (c) An act committed by an agent of a limited liability company described by Subsection (a) that is not apparently for carrying out the ordinary course of business of the company binds the company only if the act is authorized in accordance with this title. (TLLCA 2.11, 2.21.C, D.) Sec. 101.255. CONTRACTS OR TRANSACTIONS INVOLVING INTERESTED GOVERNING PERSONS OR OFFICERS. (a) This section applies only to a contract or transaction between a limited liability company and: (1) one or more of the company's governing persons or officers; or (2) an entity or other organization in which one or more of the company's governing persons or officers: (A) is a managerial official; or (B) has a financial interest. (b) An otherwise valid contract or transaction is valid notwithstanding that a governing person or officer of the company is present at or participates in the meeting of the governing authority, or of a committee of the governing person's authority, that authorizes the contract or transaction or votes to authorize the contract or transaction, if: (1) the material facts as to the relationship or interest and as to the contract or transaction are disclosed to or known by: (A) the company's governing authority or a committee of the governing authority and the governing authority or committee in good faith authorizes the contract or transaction by the affirmative vote of the majority of the disinterested governing persons or committee members, regardless of whether the disinterested governing persons or committee members constitute a quorum; or (B) the members of the company, and the members in good faith approve the contract or transaction by vote of the members; or (2) the contract or transaction is fair to the company when the contract or transaction is authorized, approved, or ratified by the governing authority, a committee of the governing authority, or the members of the company. (c) Common or interested governing persons of a limited liability company may be included in determining the presence of a quorum at a meeting of the company's governing authority or of a committee of the governing authority that authorizes the contract or transaction. (TLLCA 2.12.A (part), 2.17.)
[Sections 101.256-101.300 reserved for expansion]
SUBCHAPTER G. MANAGERS
Sec. 101.301. APPLICABILITY OF SUBCHAPTER. This subchapter applies only to a limited liability company that has one or more managers. (New.) Sec. 101.302. NUMBER AND QUALIFICATIONS. (a) The managers of a limited liability company may consist of one or more persons. (b) Except as provided by Subsection (c), the number of managers of a limited liability company consists of the number of initial managers listed in the company's certificate of formation. (c) The number of managers of a limited liability company may be increased or decreased by amendment to, or as provided by, the company agreement, except that a decrease in the number of managers may not shorten the term of an incumbent manager. (d) A manager of a limited liability company is not required to be a: (1) resident of this state; or (2) member of the company. (TLLCA 2.12 (part), 2.13 (part).) Sec. 101.303. TERM. A manager of a limited liability company serves: (1) for the term, if any, for which the manager is elected and until the manager's successor is elected; or (2) until the earlier resignation, removal, or death of the manager. (TLLCA 2.13 (part).) Sec. 101.304. REMOVAL. Subject to Section 101.306(a), a manager of a limited liability company may be removed, with or without cause, at a meeting of the company's members called for that purpose. (TLLCA 2.13 (part).) Sec. 101.305. MANAGER VACANCY. (a) Subject to Section 101.306(b), a vacancy in the position of a manager of a limited liability company may be filled by: (1) the affirmative vote of the majority of the remaining managers of the company, without regard to whether the remaining managers constitute a quorum; or (2) if the vacancy is a result of an increase in the number of managers, an election at an annual or special meeting of the company's members called for that purpose. (b) A person elected to fill a vacancy in the position of a manager serves for the unexpired term of the person's predecessor. (TLLCA 2.15.A, B.) Sec. 101.306. REMOVAL AND REPLACEMENT OF MANAGER ELECTED BY CLASS OR GROUP. (a) If a class or group of the members of a limited liability company is entitled by the company agreement of the company to elect one or more managers of the company, a manager may be removed from office only by the class or group that elected the manager. (b) A vacancy in the position of a manager elected as provided by Subsection (a) may be filled only by: (1) a majority vote of the managers serving on the date the vacancy occurs who were elected by the class or group of members; or (2) a majority vote of the members of the class or group. (TLLCA 2.13 (part), 2.15.C.) Sec. 101.307. METHODS OF CLASSIFYING MANAGERS. Other methods of classifying managers of a limited liability company, including providing for managers who serve for staggered terms of office or terms that are not uniform, may be established in the company agreement. (TLLCA 2.14.)
[Sections 101.308-101.350 reserved for expansion]
SUBCHAPTER H. MEETINGS AND VOTING
Sec. 101.351. APPLICABILITY OF SUBCHAPTER. This subchapter applies only to a meeting of and voting by: (1) the governing authority of a limited liability company; (2) the members of a limited liability company if the members do not constitute the governing authority of the company; and (3) a committee of the governing authority of a limited liability company. (TLLCA 2.12.A (part).) Sec. 101.352. GENERAL NOTICE REQUIREMENTS. (a) Except as provided by Subsection (b), notice of a regular or special meeting of the governing authority or members of a limited liability company, or a committee of the company's governing authority, shall be given in writing to each governing person, member, or committee member, as appropriate, and as provided by Section 6.051. (b) If the members of a limited liability company do not constitute the governing authority of the company, notice required by Subsection (a) shall be given by or at the direction of the governing authority not later than the 10th day or earlier than the 60th day before the date of the meeting. Notice of a meeting required under this subsection must state the business to be transacted at the meeting or the purpose of the meeting if: (1) the meeting is a special meeting; or (2) a purpose of the meeting is to consider a matter described by Section 101.356. (TLLCA 2.12.A (part), 2.19.B, C, D.) Sec. 101.353. QUORUM. A majority of all of the governing persons, members, or committee members of a limited liability company constitutes a quorum for the purpose of transacting business at a meeting of the governing authority, members, or committee of the company, as appropriate. (TLLCA 2.23.A (part).) Sec. 101.354. EQUAL VOTING RIGHTS. Each governing person, member, or committee member of a limited liability company has an equal vote at a meeting of the governing authority, members, or committee of the company, as appropriate. (TLLCA 2.23.F.) Sec. 101.355. ACT OF GOVERNING AUTHORITY, MEMBERS, OR COMMITTEE. Except as provided by this title or Title 1, the affirmative vote of the majority of the governing persons, members, or committee members of a limited liability company present at a meeting at which a quorum is present constitutes an act of the governing authority, members, or committee of the company, as appropriate. (TLLCA 2.23.A (part), F.) Sec. 101.356. VOTES REQUIRED TO APPROVE CERTAIN ACTIONS. (a) Except as provided in this section or any other section in this title, an action of a limited liability company may be approved by the company's governing authority as provided by Section 101.355. (b) Except as provided by Subsection (c), (d), or (e) or any other section in this title, an action of a limited liability company not apparently for carrying out the ordinary course of business of the company must be approved by the affirmative vote of the majority of all of the company's governing persons. (c) Except as provided by Subsection (d) or (e) or any other section in this title, a fundamental business transaction of a limited liability company, or an action that would make it impossible for a limited liability company to carry out the ordinary business of the company, must be approved by the affirmative vote of the majority of all of the company's members. (d) Except as provided by Subsection (e) or any other section of this title, an amendment to the certificate of formation of a limited liability company must be approved by the affirmative vote of all of the company's members. (e) A requirement that an action of a limited liability company must be approved by the company's members does not apply during the period prescribed by Section 101.101(b). (TLLCA 2.23.D, E, G, H.) Sec. 101.357. MANNER OF VOTING. (a) A member of a limited liability company may vote: (1) in person; or (2) by a proxy executed in writing by the member. (b) A manager or committee member of a limited liability company, if authorized by the company agreement, may vote: (1) in person; or (2) by a proxy executed in writing by the manager or committee member, as appropriate. (TLLCA 2.23.A (part); New.) Sec. 101.358. ACTION BY LESS THAN UNANIMOUS WRITTEN CONSENT. (a) This section applies only to an action required or authorized to be taken at an annual or special meeting of the governing authority, the members, or a committee of the governing authority of a limited liability company under this title, Title 1, or the governing documents of the company. (b) Notwithstanding Sections 6.201 and 6.202, an action may be taken without holding a meeting, providing notice, or taking a vote if a written consent or consents stating the action to be taken is signed by the number of governing persons, members, or committee members of a limited liability company, as appropriate, necessary to have at least the minimum number of votes that would be necessary to take the action at a meeting at which each governing person, member, or committee member, as appropriate, entitled to vote on the action is present and votes. (TLLCA 2.23.B(1).)
[Sections 101.359-101.400 reserved for expansion]
SUBCHAPTER I. MODIFICATION OF DUTIES; INDEMNIFICATION
Sec. 101.401. EXPANSION OR RESTRICTION OF DUTIES AND LIABILITIES. The company agreement of a limited liability company may expand or restrict any duties, including fiduciary duties, and related liabilities that a member, manager, officer, or other person has to the company or to a member or manager of the company. (TLLCA 2.20.B.) Sec. 101.402. PERMISSIVE INDEMNIFICATION, ADVANCEMENT OF EXPENSES, AND INSURANCE OR OTHER ARRANGEMENTS. (a) A limited liability company may: (1) indemnify a person; (2) pay in advance or reimburse expenses incurred by a person; and (3) purchase or procure or establish and maintain insurance or another arrangement to indemnify or hold harmless a person. (b) In this section, "person" includes a member, manager, or officer of a limited liability company or an assignee of a membership interest in the company. (TLLCA 2.02.A, 2.20.A.)
[Sections 101.403-101.450 reserved for expansion]
SUBCHAPTER J. DERIVATIVE PROCEEDINGS
Sec. 101.451. DEFINITIONS. In this subchapter: (1) "Derivative proceeding" means a civil suit in the right of a domestic limited liability company or, to the extent provided by Section 101.462, in the right of a foreign limited liability company. (2) "Member" includes a person who beneficially owns a membership interest through a voting trust or a nominee on the person's behalf. (TLLCA 8.12.A, C; TBCA 5.14.A.) Sec. 101.452. STANDING TO BRING PROCEEDING. A member may not institute or maintain a derivative proceeding unless: (1) the member: (A) was a member of the limited liability company at the time of the act or omission complained of; or (B) became a member by operation of law from a person that was a member at the time of the act or omission complained of; and (2) the member fairly and adequately represents the interests of the limited liability company in enforcing the right of the limited liability company. (TLLCA 8.12.A, C; TBCA 5.14.B.) Sec. 101.453. DEMAND. (a) A member may not institute a derivative proceeding until the 91st day after the date a written demand is filed with the limited liability company stating with particularity the act, omission, or other matter that is the subject of the claim or challenge and requesting that the limited liability company take suitable action. (b) The waiting period required by Subsection (a) before a derivative proceeding may be instituted is not required if: (1) the member has been previously notified that the demand has been rejected by the limited liability company; (2) the limited liability company is suffering irreparable injury; or (3) irreparable injury to the limited liability company would result by waiting for the expiration of the 90-day period. (TLLCA 8.12.A, C; TBCA 5.14.C.) Sec. 101.454. DETERMINATION BY GOVERNING OR INDEPENDENT PERSONS. (a) The determination of how to proceed on allegations made in a demand or petition relating to a derivative proceeding must be made by an affirmative vote of the majority of: (1) the independent and disinterested governing persons present at a meeting of the governing authority at which interested governing persons are not present at the time of the vote if the independent and disinterested governing persons constitute a quorum of the governing authority; (2) a committee consisting of two or more independent and disinterested governing persons appointed by the majority of one or more independent and disinterested governing persons present at a meeting of the governing authority, regardless of whether the independent and disinterested governing persons constitute a quorum of the governing authority; or (3) a panel of one or more independent and disinterested persons appointed by the court on a motion by the limited liability company listing the names of the persons to be appointed and stating that, to the best of the limited liability company's knowledge, the persons to be appointed are disinterested and qualified to make the determinations contemplated by Section 101.458. (b) The court shall appoint a panel under Subsection (a)(3) if the court finds that the persons recommended by the limited liability company are independent and disinterested and are otherwise qualified with respect to expertise, experience, independent judgment, and other factors considered appropriate by the court under the circumstances to make the determinations. A person appointed by the court to a panel under this section may not be held liable to the limited liability company or the limited liability company's members for an action taken or omission made by the person in that capacity, except for acts or omissions constituting fraud or wilful misconduct. (TLLCA 8.12.A, C; TBCA 5.14.H.) Sec. 101.455. STAY OF PROCEEDING. (a) If the domestic or foreign limited liability company that is the subject of a derivative proceeding commences an inquiry into the allegations made in a demand or petition and the person or group of persons described by Section 101.454 is conducting an active review of the allegations in good faith, the court shall stay a derivative proceeding until the review is completed and a determination is made by the person or group regarding what further action, if any, should be taken. (b) To obtain a stay, the domestic or foreign limited liability company shall provide the court with a written statement agreeing to advise the court and the member making the demand of the determination promptly on the completion of the review of the matter. A stay, on motion, may be reviewed every 60 days for the continued necessity of the stay. (c) If the review and determination made by the person or group is not completed before the 61st day after the date on which the court orders the stay, the stay may be renewed for one or more additional 60-day periods if the domestic or foreign limited liability company provides the court and the member with a written statement of the status of the review and the reasons why a continued extension of the stay is necessary. (TLLCA 8.12.A, C; TBCA 5.14.D(1).) Sec. 101.456. DISCOVERY. (a) If a domestic or foreign limited liability company proposes to dismiss a derivative proceeding under Section 101.458, discovery by a member after the filing of the derivative proceeding in accordance with this subchapter shall be limited to: (1) facts relating to whether the person or group of persons described by Section 101.458 is independent and disinterested; (2) the good faith of the inquiry and review by the person or group; and (3) the reasonableness of the procedures followed by the person or group in conducting the review. (b) Discovery described by Subsection (a) may not be expanded to include a fact or substantive matter regarding the act, omission, or other matter that is the subject matter of the derivative proceeding. The scope of discovery may be expanded if the court determines after notice and hearing that a good faith review of the allegations for purposes of Section 101.458 has not been made by an independent and disinterested person or group in accordance with that section. (TLLCA 8.12.A, C; TBCA 5.14.D(2).) Sec. 101.457. TOLLING OF STATUTE OF LIMITATIONS. A written demand filed with the limited liability company under Section 101.453 tolls the statute of limitations on the claim on which demand is made until the earlier of: (1) the 91st day after the date of the demand; or (2) the 31st day after the date the limited liability company advises the member that the demand has been rejected or the review has been completed. (TLLCA 8.12.A, C; TBCA 5.14.E.) Sec. 101.458. DISMISSAL OF DERIVATIVE PROCEEDING. (a) A court shall dismiss a derivative proceeding on a motion by the limited liability company if the person or group of persons described by Section 101.454 determines in good faith, after conducting a reasonable inquiry and based on factors the person or group considers appropriate under the circumstances, that continuation of the derivative proceeding is not in the best interests of the limited liability company. (b) In determining whether the requirements of Subsection (a) have been met, the burden of proof shall be on: (1) the plaintiff member if: (A) the majority of the governing authority consists of independent and disinterested persons at the time the determination is made; (B) the determination is made by a panel of one or more independent and disinterested persons appointed under Section 101.454(a)(3); or (C) the limited liability company presents prima facie evidence that demonstrates that the persons appointed under Section 101.454(a)(2) are independent and disinterested; or (2) the limited liability company in any other circumstance. (TLLCA 8.12.A, C; TBCA 5.14.F.) Sec. 101.459. ALLEGATIONS IF DEMAND REJECTED. If a derivative proceeding is instituted after a demand is rejected, the petition must allege with particularity facts that establish that the rejection was not made in accordance with the requirements of Sections 101.454 and 101.458. (TLLCA 8.12.A, C; TBCA 5.14.G.) Sec. 101.460. DISCONTINUANCE OR SETTLEMENT. (a) A derivative proceeding may not be discontinued or settled without court approval. (b) The court shall direct that notice be given to the affected members if the court determines that a proposed discontinuance or settlement may substantially affect the interests of other members. (TLLCA 8.12.A, C; TBCA 5.14.I.) Sec. 101.461. PAYMENT OF EXPENSES. (a) In this section, "expenses" means reasonable expenses incurred by a party in a derivative proceeding, including: (1) attorney's fees; (2) costs of pursuing an investigation of the matter that was the subject of the derivative proceeding; or (3) expenses for which the domestic or foreign limited liability company may be required to indemnify another person. (b) On termination of a derivative proceeding, the court may order: (1) the domestic or foreign limited liability company to pay the expenses the plaintiff incurred in the proceeding if the court finds the proceeding has resulted in a substantial benefit to the domestic or foreign limited liability company; (2) the plaintiff to pay the expenses the domestic or foreign limited liability company or other defendant incurred in investigating and defending the proceeding if the court finds the proceeding has been instituted or maintained without reasonable cause or for an improper purpose; or (3) a party to pay the expenses incurred by another party relating to the filing of a pleading, motion, or other paper if the court finds the pleading, motion, or other paper: (A) was not well grounded in fact after reasonable inquiry; (B) was not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; or (C) was interposed for an improper purpose, such as to harass, cause unnecessary delay, or cause a needless increase in the cost of litigation. (TLLCA 8.12.A, C; TBCA 5.14.J.) Sec. 101.462. APPLICATION TO FOREIGN LIMITED LIABILITY COMPANIES. (a) In a derivative proceeding brought in the right of a foreign limited liability company, the matters covered by this subchapter are governed by the laws of the jurisdiction of organization of the foreign limited liability company, except for Sections 101.455, 101.460, and 101.461, which are procedural provisions and do not relate to the internal affairs of the foreign limited liability company. (b) In the case of matters relating to a foreign limited liability company under Section 101.454, a reference to a person or group of persons described by that section refers to a person or group entitled under the laws of the jurisdiction of organization of the foreign limited liability company to review and dispose of a derivative proceeding. The standard of review of a decision made by the person or group to dismiss the derivative proceeding shall be governed by the laws of the jurisdiction of organization of the foreign limited liability company. (TLLCA 8.12.A, C; TBCA 5.14.K.) Sec. 101.463. CLOSELY HELD LIMITED LIABILITY COMPANY. (a) In this section, "closely held limited liability company" means a limited liability company that has: (1) fewer than 35 members; and (2) no membership interests listed on a national securities exchange or regularly quoted in an over-the-counter market by one or more members of a national securities association. (b) Subject to Subsection (c), Sections 101.452-101.459 do not apply to a closely held limited liability company. (c) If justice requires: (1) a derivative proceeding brought by a member of a closely held limited liability company may be treated by a court as a direct action brought by the member for the member's own benefit; and (2) a recovery in a direct or derivative proceeding by a member may be paid directly to the plaintiff or to the limited liability company if necessary to protect the interests of creditors or other members of the limited liability company. (TLLCA 8.12.A, C; TBCA 5.14.L.)
[Sections 101.464-101.500 reserved for expansion]
SUBCHAPTER K. SUPPLEMENTAL RECORDKEEPING REQUIREMENTS
Sec. 101.501. SUPPLEMENTAL RECORDS REQUIRED FOR LIMITED LIABILITY COMPANIES. (a) In addition to the books and records required to be kept under Section 3.151, a limited liability company shall keep at its principal office in the United States, or make available to a person at its principal office in the United States not later than the fifth day after the date the person submits a written request to examine the books and records of the company under Section 3.152(a) or 101.502: (1) a current list of each member of a class or group of membership interests in the company; (2) a copy of the company's federal, state, and local tax information or income tax returns for each of the six preceding tax years; (3) a copy of the company's certificate of formation, including any amendments to or restatements of the certificate of formation; (4) if the company agreement is in writing, a copy of the company agreement, including any amendments to or restatements of the company agreement; (5) an executed copy of any powers of attorney; (6) a copy of any document that establishes a class or group of members of the company as provided by the company agreement; and (7) except as provided by Subsection (b), a written statement of: (A) the amount of a cash contribution and a description and statement of the agreed value of any other contribution made or agreed to be made by each member; (B) the dates any additional contributions are to be made by a member; (C) any event the occurrence of which requires a member to make additional contributions; (D) any event the occurrence of which requires the winding up of the company; and (E) the date each member became a member of the company. (b) A limited liability company is not required to keep or make available at its principal office in the United States a written statement of the information required by Subsection (a)(7) if that information is stated in the company agreement. (c) A limited liability company shall keep at its registered office located in this state and make available to a member of the company on reasonable request the street address of the company's principal office in the United States in which the records required by this section and Section 3.151 are maintained or made available. (TLLCA 2.22.A, C.) Sec. 101.502. RIGHT TO EXAMINE RECORDS AND CERTAIN OTHER INFORMATION. (a) A member of a limited liability company or an assignee of a membership interest in a limited liability company, or a representative of the member or assignee, on written request and for a proper purpose, may examine and copy at any reasonable time and at the member's or assignee's expense: (1) records required under Sections 3.151 and 101.501; and (2) other information regarding the business, affairs, and financial condition of the company that is reasonable for the person to examine and copy. (b) A limited liability company shall provide to a member of the company or an assignee of a membership interest in the company, on written request by the member or assignee sent to the company's principal office in the United States or, if different, the person and address designated in the company agreement, a free copy of: (1) the company's certificate of formation, including any amendments to or restatements of the certificate of formation; (2) if in writing, the company agreement, including any amendments to or restatements of the company agreement; and (3) any tax returns described by Section 101.501(a)(2). (TLLCA 2.22.D, E.)
[Sections 101.503-101.550 reserved for expansion]
SUBCHAPTER L. SUPPLEMENTAL WINDING UP
AND TERMINATION PROVISIONS
Sec. 101.551. PERSONS ELIGIBLE TO WIND UP COMPANY. After an event requiring the winding up of a limited liability company unless a revocation as provided by Section 11.151 or a cancellation as provided by Section 11.152 occurs, the winding up of the company must be carried out by: (1) the company's governing authority or one or more persons, including a governing person, designated by the governing authority, the members, or the governing documents; (2) if the event requiring the winding up of the company is the termination of the continued membership of the last remaining member of the company, the legal representative or successor of the last remaining member or one or more persons designated by the legal representative or successor; or (3) a person appointed by the court to carry out the winding up of the company under Section 11.054, 11.405, 11.409, or 11.410. (TLLCA 6.03.) Sec. 101.552. APPROVAL OF VOLUNTARY WINDING UP, REVOCATION, CANCELLATION, OR REINSTATEMENT. A majority vote of all of the governing members of a limited liability company or, if the limited liability company has no members, a majority vote of all of the managers of the company is required to approve: (1) a voluntary winding up of the company under Chapter 11; (2) a revocation of a voluntary decision to wind up the company under Section 11.151; (3) a cancellation of an event requiring the winding up of the company under Section 11.152; or (4) a reinstatement of a terminated company under Section 11.202. (TLLCA 6.01, 6.06.)
TITLE 4. PARTNERSHIPS
CHAPTER 151. GENERAL PROVISIONS
Sec. 151.001. DEFINITIONS. In this title: (1) "Capital account" means the amount computed by: (A) adding the amount of a partner's original and additional contributions of cash to a partnership, the agreed value of any other property that that partner originally or additionally contributed to the partnership, and allocations of partnership profits to that partner; and (B) subtracting the amount of distributions to that partner and allocations of partnership losses to that partner. (2) "Foreign limited partnership" means a partnership formed under the laws of another state that has one or more general partners and one or more limited partners. (3) "Majority-in-interest," with respect to all or a specified group of partners, means partners who own more than 50 percent of the current percentage or other interest in the profits of the partnership that is owned by all of the partners or by the partners in the specified group, as appropriate. (4) "Partnership agreement" means any agreement, written or oral, of the partners concerning a partnership. (TRLPA 1.02(1), (3), (7), (10); TRPA 1.01(2), (8), (10), (12).) Sec. 151.002. KNOWLEDGE OF FACT. For purposes of this title, a person has knowledge of a fact only if the person has actual knowledge of the fact. (TRPA 1.02(a).) Sec. 151.003. NOTICE OF FACT. (a) For purposes of this title, a person has notice of a fact if the person: (1) has knowledge of the fact; (2) has received a communication of the fact as provided by Subsection (c); or (3) reasonably should have concluded, from all facts then known to that person, that the fact exists. (b) A person notifies or gives notice to another person of a fact by taking actions reasonably required to inform the other person of the fact in the ordinary course of business, regardless of whether the other person actually has knowledge of the fact. (c) A person is notified or receives notice of a fact when the fact is communicated to: (1) the person; (2) the person's place of business; or (3) another place held out by the person as the place for receipt of communications. (d) Receipt of notice by a partner of a fact relating to the partnership is effective immediately as notice to the partnership unless fraud against the partnership is committed by or with the consent of the partner receiving the notice. (TRPA 1.02(b), (c), (d), (e).)
CHAPTER 152. GENERAL PARTNERSHIPS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 152.001. DEFINITIONS. In this chapter: (1) "Event of withdrawal" or "withdrawal" means an event specified by Section 152.501(b). (2) "Event requiring a winding up" means an event specified by Section 11.051 or 11.057. (3) "Foreign limited liability partnership" means a partnership that: (A) is foreign; and (B) has the status of a limited liability partnership pursuant to the laws of the jurisdiction of formation. (4) "Other partnership provisions" means the provisions of Chapters 151 and 154 and Title 1 to the extent applicable to partnerships. (5) "Transfer" includes: (A) an assignment; (B) a conveyance; (C) a lease; (D) a mortgage; (E) a deed; (F) an encumbrance; and (G) the creation of a security interest. (6) "Withdrawn partner" means a partner with respect to whom an event of withdrawal has occurred. (TRPA 1.01(6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19).) Sec. 152.002. EFFECT OF PARTNERSHIP AGREEMENT; NONWAIVABLE AND VARIABLE PROVISIONS. (a) Except as provided by Subsection (b), a partnership agreement governs the relations of the partners and between the partners and the partnership. To the extent that the partnership agreement does not otherwise provide, this chapter and the other partnership provisions govern the relationship of the partners and between the partners and the partnership. (b) A partnership agreement or the partners may not: (1) unreasonably restrict a partner's right of access to books and records under Section 152.212; (2) eliminate the duty of loyalty under Section 152.205, except that the partners by agreement may identify specific types of activities or categories of activities that do not violate the duty of loyalty if the types or categories are not manifestly unreasonable; (3) eliminate the duty of care under Section 152.206, except that the partners by agreement may determine the standards by which the performance of the obligation is to be measured if the standards are not manifestly unreasonable; (4) eliminate the obligation of good faith under Section 152.204(b), except that the partners by agreement may determine the standards by which the performance of the obligation is to be measured if the standards are not manifestly unreasonable; (5) vary the power to withdraw as a partner under Section 152.501(b)(1), (7), or (8), except for the requirement that notice be in writing; (6) vary the right to expel a partner by a court in an event specified by Section 152.501(b)(5); (7) restrict rights of a third party under this chapter or the other partnership provisions, except for a limitation on an individual partner's liability in a limited liability partnership as provided by this chapter; (8) select a governing law not permitted under Sections 1.103 and 1.002(43)(C); or (9) except as provided in Subsections (c) and (d), waive or modify the following provisions of Title 1: (A) Chapter 1, if the provision is used to interpret a provision or to define a word or phrase contained in a section listed in this subsection; (B) Chapter 2, other than Sections 2.104(c)(2), 2.104(c)(3), and 2.113; (C) Chapter 3, other than Subchapters C and E of that chapter; or (D) Chapters 4, 5, 10, 11, and 12, other than Sections 11.057(a)(1), (2), (5), and (6) and 11.057(b). (c) A provision listed in Subsection (b)(9) may be waived or modified in a partnership agreement if the provision that is waived or modified authorizes the partnership to waive or modify the provision in the partnership's governing documents. (d) A provision listed in Subsection (b)(9) may be waived or modified in a partnership agreement if the provision that is modified specifies: (1) the person or group of persons entitled to approve a modification; or (2) the vote or other method by which a modification is required to be approved. (TRPA 1.03.) Sec. 152.003. SUPPLEMENTAL PRINCIPLES OF LAW. The principles of law and equity and the other partnership provisions supplement this chapter unless otherwise provided by this chapter or the other partnership provisions. (TRPA 1.04(a).) Sec. 152.004. RULE OF STATUTORY CONSTRUCTION NOT APPLICABLE. The rule that a statute in derogation of the common law is to be strictly construed does not apply to this chapter or the other partnership provisions. (TRPA 1.04(b).) Sec. 152.005. APPLICABLE INTEREST RATE. If an obligation to pay interest arises under this chapter and the rate is not specified, the interest rate is the rate specified by Section 302.002, Finance Code. (TRPA 1.04(c).)
[Sections 152.006-152.050 reserved for expansion]
SUBCHAPTER B. NATURE AND CREATION OF PARTNERSHIP
Sec. 152.051. PARTNERSHIP DEFINED. (a) In this section, "association" does not have the meaning of the term "association" under Section 1.002. (b) Except as provided by Subsection (c) and Section 152.053(a), an association of two or more persons to carry on a business for profit as owners creates a partnership, regardless of whether: (1) the persons intend to create a partnership; or (2) the association is called a "partnership," "joint venture," or other name. (c) An association or organization is not a partnership if it was created under a statute other than: (1) this title and the provisions of Title 1 applicable to partnerships and limited partnerships; (2) a predecessor to a statute referred to in Subdivision (1); or (3) a comparable statute of another jurisdiction. (d) The provisions of this chapter govern limited partnerships only to the extent provided by Sections 153.003 and 153.152 and Subchapter H, Chapter 153. (TRPA 2.02(a), (b).) Sec. 152.052. RULES FOR DETERMINING IF PARTNERSHIP IS CREATED. (a) Factors indicating that persons have created a partnership include the persons': (1) receipt or right to receive a share of profits of the business; (2) expression of an intent to be partners in the business; (3) participation or right to participate in control of the business; (4) agreement to share or sharing: (A) losses of the business; or (B) liability for claims by third parties against the business; and (5) agreement to contribute or contributing money or property to the business. (b) One of the following circumstances, by itself, does not indicate that a person is a partner in the business: (1) the receipt or right to receive a share of profits as payment: (A) of a debt, including repayment by installments; (B) of wages or other compensation to an employee or independent contractor; (C) of rent; (D) to a former partner, surviving spouse or representative of a deceased or disabled partner, or transferee of a partnership interest; (E) of interest or other charge on a loan, regardless of whether the amount varies with the profits of the business, including a direct or indirect present or future ownership interest in collateral or rights to income, proceeds, or increase in value derived from collateral; or (F) of consideration for the sale of a business or other property, including payment by installments; (2) co-ownership of property, regardless of whether the co-ownership: (A) is a joint tenancy, tenancy in common, tenancy by the entirety, joint property, community property, or part ownership; or (B) is combined with sharing of profits from the property; (3) the right to share or sharing gross returns or revenues, regardless of whether the persons sharing the gross returns or revenues have a common or joint interest in the property from which the returns or revenues are derived; or (4) ownership of mineral property under a joint operating agreement. (c) An agreement by the owners of a business to share losses is not necessary to create a partnership. (TRPA 2.03.) Sec. 152.053. QUALIFICATIONS TO BE PARTNER; NONPARTNER'S LIABILITY TO THIRD PERSON. (a) A person may be a partner unless the person lacks capacity apart from this chapter. (b) Except as provided by Section 152.307, a person who is not a partner in a partnership under Section 152.051 is not a partner as to a third person and is not liable to a third person under this chapter. (TRPA 2.02(c), 2.03(c).) Sec. 152.054. FALSE REPRESENTATION OF PARTNERSHIP OR PARTNER. (a) A false representation or other conduct falsely indicating that a person is a partner with another person does not of itself create a partnership. (b) A representation or other conduct indicating that a person is a partner in an existing partnership, if that is not the case, does not of itself make that person a partner in the partnership. (TRPA 3.06(a), (b).) Sec. 152.055. AUTHORITY OF CERTAIN PROFESSIONALS TO CREATE PARTNERSHIP. (a) Persons licensed as doctors of medicine and persons licensed as doctors of osteopathy by the Texas State Board of Medical Examiners and persons licensed as podiatrists by the Texas State Board of Podiatric Medical Examiners may create a partnership that is jointly owned by those practitioners to perform a professional service that falls within the scope of practice of those practitioners. (b) When doctors of medicine, osteopathy, and podiatry create a partnership that is jointly owned by those practitioners, the authority of each of the practitioners is limited by the scope of practice of the respective practitioners and none can exercise control over the other's clinical authority granted by their respective licenses, either through agreements, bylaws, directives, financial incentives, or other arrangements that would assert control over treatment decisions made by the practitioner. (c) The Texas State Board of Medical Examiners and the Texas State Board of Podiatric Medical Examiners continue to exercise regulatory authority over their respective licenses. (TRPA 2.02(e).) Sec. 152.056. PARTNERSHIP AS ENTITY. A partnership is an entity distinct from its partners. (TRPA 2.01.)
[Sections 152.057-152.100 reserved for expansion]
SUBCHAPTER C. PARTNERSHIP PROPERTY
Sec. 152.101. NATURE OF PARTNERSHIP PROPERTY. Partnership property is not property of the partners. A partner or a partner's spouse does not have an interest in partnership property. (TRPA 2.04.) Sec. 152.102. CLASSIFICATION AS PARTNERSHIP PROPERTY. (a) Property is partnership property if acquired in the name of: (1) the partnership; or (2) one or more partners, regardless of whether the name of the partnership is indicated, if the instrument transferring title to the property indicates: (A) the person's capacity as a partner; or (B) the existence of a partnership. (b) Property is presumed to be partnership property if acquired with partnership property, regardless of whether the property is acquired as provided by Subsection (a). (c) Property acquired in the name of one or more partners is presumed to be the partner's property, regardless of whether the property is used for partnership purposes, if the instrument transferring title to the property does not indicate the person's capacity as a partner or the existence of a partnership, and if the property is not acquired with partnership property. (d) For purposes of this section, property is acquired in the name of the partnership by a transfer to: (1) the partnership in its name; or (2) one or more partners in the partners' capacity as partners in the partnership, if the name of the partnership is indicated in the instrument transferring title to the property. (TRPA 2.05.)
[Sections 152.103-152.200 reserved for expansion]
SUBCHAPTER D. RELATIONSHIP BETWEEN PARTNERS AND BETWEEN
PARTNERS AND PARTNERSHIPS
Sec. 152.201. ADMISSION AS PARTNER. A person may become a partner only with the consent of all partners. (TRPA 4.01(g).) Sec. 152.202. CREDITS OF AND CHARGES TO PARTNER. (a) Each partner is credited with an amount equal to: (1) the cash and the value of property the partner contributes to a partnership; and (2) the partner's share of the partnership's profits. (b) Each partner is charged with an amount equal to: (1) the cash and the value of other property distributed by the partnership to the partner; and (2) the partner's share of the partnership's losses. (c) Each partner is entitled to be credited with an equal share of the partnership's profits and is chargeable with a share of the partnership's capital or operating losses in proportion to the partner's share of the profits. (TRPA 4.01(a), (b).) Sec. 152.203. RIGHTS AND DUTIES OF PARTNER. (a) Each partner has equal rights in the management and conduct of the business of a partnership. A partner's right to participate in the management and conduct of the business is not community property. (b) A partner may use or possess partnership property only on behalf of the partnership. (c) A partner is not entitled to receive compensation for services performed for a partnership other than reasonable compensation for services rendered in winding up the business of the partnership. (d) A partner who, in the proper conduct of the business of the partnership or for the preservation of its business or property, reasonably makes a payment or advance beyond the amount the partner agreed to contribute, or who reasonably incurs a liability, is entitled to be repaid and to receive interest from the date of the: (1) payment or advance; or (2) incurrence of the liability. (TRPA 4.01(c), (d), (e), (f).) Sec. 152.204. GENERAL STANDARDS OF PARTNER'S CONDUCT. (a) A partner owes to the partnership and the other partners: (1) a duty of loyalty; and (2) a duty of care. (b) A partner shall discharge the partner's duties to the partnership and the other partners under this code or under the partnership agreement and exercise any rights and powers in the conduct or winding up of the partnership business: (1) in good faith; and (2) in a manner the partner reasonably believes to be in the best interest of the partnership. (c) A partner does not violate a duty or obligation under this chapter or under the partnership agreement merely because the partner's conduct furthers the partner's own interest. (d) A partner, in the partner's capacity as partner, is not a trustee and is not held to the standards of a trustee. (TRPA 4.04(a), (d), (e), (f).) Sec. 152.205. PARTNER'S DUTY OF LOYALTY. A partner's duty of loyalty includes: (1) accounting to and holding for the partnership property, profit, or benefit derived by the partner: (A) in the conduct and winding up of the partnership business; or (B) from use by the partner of partnership property; (2) refraining from dealing with the partnership on behalf of a person who has an interest adverse to the partnership; and (3) refraining from competing or dealing with the partnership in a manner adverse to the partnership. (TRPA 4.04(b).) Sec. 152.206. PARTNER'S DUTY OF CARE. (a) A partner's duty of care to the partnership and the other partners is to act in the conduct and winding up of the partnership business with the care an ordinarily prudent person would exercise in similar circumstances. (b) An error in judgment does not by itself constitute a breach of the duty of care. (c) A partner is presumed to satisfy the duty of care if the partner acts on an informed basis and in compliance with Section 152.204(b). (TRPA 4.04(c).) Sec. 152.207. STANDARDS OF CONDUCT APPLICABLE TO PERSON WINDING UP PARTNERSHIP BUSINESS. Sections 152.204-152.206 apply to a person winding up the partnership business as the personal or legal representative of the last surviving partner to the same extent that those sections apply to a partner. (TRPA 4.04(g).) Sec. 152.208. AMENDMENT TO PARTNERSHIP AGREEMENT. A partnership agreement may be amended only with the consent of all partners. (TRPA 4.01(i).) Sec. 152.209. DECISION-MAKING REQUIREMENT. (a) A difference arising in a matter in the ordinary course of the partnership business may be decided by a majority-in-interest of the partners. (b) An act outside the ordinary course of business of a partnership may be undertaken only with the consent of all partners. (TRPA 4.01(h).) Sec. 152.210. PARTNER'S LIABILITY TO PARTNERSHIP AND OTHER PARTNERS. A partner is liable to a partnership and the other partners for: (1) a breach of the partnership agreement; or (2) a violation of a duty to the partnership or other partners under this chapter that causes harm to the partnership or the other partners. (TRPA 4.05.) Sec. 152.211. REMEDIES OF PARTNERSHIP AND PARTNERS. (a) A partnership may maintain an action against a partner for a breach of the partnership agreement or for the violation of a duty to the partnership causing harm to the partnership. (b) A partner may maintain an action against the partnership or another partner for legal or equitable relief, including an accounting of partnership business, to: (1) enforce a right under the partnership agreement; (2) enforce a right under this chapter, including: (A) the partner's rights under Sections 152.201-152.209, 152.212, and 152.213; (B) the partner's right on withdrawal to have the partner's interest in the partnership redeemed under Subchapter H or to enforce any other right under Subchapters G and H; and (C) the partner's rights under Subchapter I; (3) enforce the rights and otherwise protect the interests of the partner, including rights and interests arising independently of the partnership relationship; or (4) enforce a right under Chapter 11. (c) The accrual of and a time limitation on a right of action for a remedy under this section is governed by other applicable law. (d) A right to an accounting does not revive a claim barred by law. (TRPA 4.06.) Sec. 152.212. BOOKS AND RECORDS OF PARTNERSHIP. (a) In this section, "access" includes the opportunity to inspect and copy books and records during ordinary business hours. (b) A partnership shall keep its books and records, if any, at its chief executive office. (c) A partnership shall provide access to its books and records to a partner or an agent or attorney of a partner. (d) The partnership shall provide a former partner or an agent or attorney of a former partner access to books and records pertaining to the period during which the former partner was a partner or for any other proper purpose with respect to another period. (e) A partnership may impose a reasonable charge, covering the costs of labor and material, for copies of documents furnished under this section. (TRPA 4.03(a), (b).) Sec. 152.213. INFORMATION REGARDING PARTNERSHIP. (a) On request and to the extent just and reasonable, each partner and the partnership shall furnish complete and accurate information concerning the partnership to: (1) a partner; (2) the legal representative of a deceased partner or a partner who has a legal disability; or (3) an assignee. (b) A legal representative of a deceased partner or a partner who has a legal disability and an assignee are subject to the duties of a partner with respect to information made available. (TRPA 4.03(c).) Sec. 152.214. CERTAIN THIRD-PARTY OBLIGATIONS NOT AFFECTED. Sections 152.203, 152.208, and 152.209 do not limit a partnership's obligations to another person under Sections 152.301 and 152.302. (TRPA 4.01(j).)
[Sections 152.215-152.300 reserved for expansion]
SUBCHAPTER E. RELATIONSHIP BETWEEN PARTNERS AND OTHER PERSONS
Sec. 152.301. PARTNER AS AGENT. Each partner is an agent of the partnership for the purpose of its business. (TRPA 3.02(a) (part).) Sec. 152.302. BINDING EFFECT OF PARTNER'S ACTION. (a) Unless a partner does not have authority to act for the partnership in a particular matter and the person with whom the partner is dealing knows that the partner lacks authority, an act of a partner, including the execution of an instrument in the partnership name, binds the partnership if the act is apparently for carrying on in the ordinary course: (1) the partnership business; or (2) business of the kind carried on by the partnership. (b) An act of a partner that is not apparently for carrying on in the ordinary course a business described by Subsection (a) binds the partnership only if authorized by the other partners. (c) A conveyance of real property by a partner on behalf of the partnership not otherwise binding on the partnership binds the partnership if the property has been conveyed by the grantee or a person claiming through the grantee to be a holder for value without knowledge that the partner exceeded that partner's authority in making the conveyance. (TRPA 3.02(a) (part), (b), (c).) Sec. 152.303. LIABILITY OF PARTNERSHIP FOR CONDUCT OF PARTNER. (a) A partnership is liable for loss or injury to a person, including a partner, or for a penalty caused by or incurred as a result of a wrongful act or omission or other actionable conduct of a partner acting: (1) in the ordinary course of business of the partnership; or (2) with the authority of the partnership. (b) A partnership is liable for the loss of money or property of a person who is not a partner that is: (1) received in the course of the partnership's business; and (2) misapplied by a partner while in the custody of the partnership. (TRPA 3.03.) Sec. 152.304. NATURE OF PARTNER'S LIABILITY. (a) Except as provided by Subsection (b) or Section 152.801(b), all partners are liable jointly and severally for a debt or obligation of the partnership unless otherwise: (1) agreed by the claimant; or (2) provided by law. (b) A person who is admitted as a partner into an existing partnership does not have personal liability under Subsection (a) for an obligation of the partnership that: (1) arises before the partner's admission to the partnership; (2) relates to an action taken or omission occurring before the partner's admission to the partnership; or (3) arises before or after the partner's admission to the partnership under a contract or commitment entered into before the partner's admission. (TRPA 3.04, 3.07.) Sec. 152.305. REMEDY. An action may be brought against a partnership and any or all of the partners in the same action or in separate actions. (TRPA 3.05(b).) Sec. 152.306. ENFORCEMENT OF REMEDY. (a) A judgment against a partnership is not by itself a judgment against a partner. A judgment may be entered against a partner who has been served with process in a suit against the partnership. (b) Except as provided by Subsection (c), a creditor may proceed against one or more partners or the property of the partners to satisfy a judgment based on a claim against the partnership only if a judgment: (1) is also obtained against the partner; and (2) based on the same claim: (A) is obtained against the partnership; (B) has not been reversed or vacated; and (C) remains unsatisfied for 90 days after: (i) the date on which the judgment is entered; or (ii) the date on which the stay expires, if the judgment is contested by appropriate proceedings and execution on the judgment is stayed. (c) Subsection (b) does not prohibit a creditor from proceeding directly against one or more partners or the property of the partners without first seeking satisfaction from partnership property if: (1) the partnership is a debtor in bankruptcy; (2) the creditor and the partnership agreed that the creditor is not required to comply with Subsection (b); (3) a court orders otherwise, based on a finding that partnership property subject to execution in the state is clearly insufficient to satisfy the judgment or that compliance with Subsection (b) is excessively burdensome; or (4) liability is imposed on the partner by law independently of the person's status as a partner. (d) This section does not limit the effect of Section 152.801 with respect to a limited liability partnership. (TRPA 3.05(c), (d), (e), (f).) Sec. 152.307. EXTENSION OF CREDIT IN RELIANCE ON FALSE REPRESENTATION. (a) The rights of a person extending credit in reliance on a representation described by Section 152.054 are determined by applicable law other than this chapter and the other partnership provisions, including the law of estoppel, agency, negligence, fraud, and unjust enrichment. (b) The rights and duties of a person held liable under Subsection (a) are also determined by law other than the law described by Subsection (a). (TRPA 3.06(c), (d).)
[Sections 152.308-152.400 reserved for expansion]
SUBCHAPTER F. TRANSFER OF PARTNERSHIP INTERESTS
Sec. 152.401. TRANSFER OF PARTNERSHIP INTEREST. A partner may transfer all or part of the partner's partnership interest. (TRPA 5.03(a) (part).) Sec. 152.402. GENERAL EFFECT OF TRANSFER. A transfer of all or part of a partner's partnership interest: (1) is not an event of withdrawal; (2) does not by itself cause a winding up of the partnership business; and (3) against the other partners or the partnership, does not entitle the transferee, during the continuance of the partnership, to participate in the management or conduct of the partnership business. (TRPA 5.03(a) (part).) Sec. 152.403. EFFECT OF TRANSFER ON TRANSFEROR. After transfer, the transferor continues to have the rights and duties of a partner other than the interest transferred. (TRPA 5.03(b) (part).) Sec. 152.404. RIGHTS AND DUTIES OF TRANSFEREE. (a) A transferee of a partner's partnership interest is entitled to receive, to the extent transferred, distributions to which the transferor otherwise would be entitled. (b) If an event requires a winding up of partnership business under Subchapter I, a transferee is entitled to receive, to the extent transferred, the net amount otherwise distributable to the transferor. (c) Until a transferee becomes a partner, the transferee does not have liability as a partner solely as a result of the transfer. (d) For a proper purpose the transferee may require reasonable information or an account of a partnership transaction and make reasonable inspection of the partnership books. In a winding up of partnership business, a transferee may require an accounting only from the date of the latest account agreed to by all of the partners. (e) Until receipt of notice of a transfer, a partnership is not required to give effect to a transferee's rights under this section and Sections 152.401-152.403. (TRPA 5.03(b) (part), (c), (d).) Sec. 152.405. POWER TO EFFECT TRANSFER OR GRANT OF SECURITY INTEREST. A partnership is not required to give effect to a transfer prohibited by a partnership agreement. (TRPA 5.03(e).) Sec. 152.406. EFFECT OF DEATH OR DIVORCE ON PARTNERSHIP INTEREST. (a) For purposes of this code: (1) on the divorce of a partner, the partner's spouse, to the extent of the spouse's partnership interest, is a transferee of the partnership interest from the partner; (2) on the death of a partner, the partner's surviving spouse, if any, and an heir, legatee, or personal representative of the partner, to the extent of their respective partnership interest, is a transferee of the partnership interest from the partner; and (3) on the death of a partner's spouse, an heir, legatee, or personal representative of the spouse, to the extent of their respective partnership interest, is a transferee of the partnership interest from the partner. (b) An event of the type described by Section 152.501 occurring with respect to a partner's spouse is not an event of withdrawal. (c) This chapter does not impair an agreement for the purchase or sale of a partnership interest at any time, including the death of an owner of the partnership interest. (TRPA 5.04.)
[Sections 152.407-152.500 reserved for expansion]
SUBCHAPTER G. WITHDRAWAL OF PARTNER
Sec. 152.501. EVENTS OF WITHDRAWAL. (a) A person ceases to be a partner on the occurrence of an event of withdrawal. (b) An event of withdrawal of a partner occurs on: (1) receipt by the partnership of notice of the partner's express will to withdraw as a partner on: (A) the date on which the notice is received; or (B) a later date specified by the notice; (2) an event specified in the partnership agreement as causing the partner's withdrawal; (3) the partner's expulsion as provided by the partnership agreement; (4) the partner's expulsion by vote of a majority-in-interest of the other partners if: (A) it is unlawful to carry on the partnership business with that partner; (B) there has been a transfer of all or substantially all of that partner's partnership interest, other than: (i) a transfer for security purposes that has not been foreclosed; or (ii) the substitution of a successor trustee or successor personal representative; (C) not later than the 90th day after the date on which the partnership notifies an entity partner, other than a nonfiling entity or foreign nonfiling entity partner, that it will be expelled because it has filed a certificate of termination or the equivalent, its existence has been involuntarily terminated or its charter has been revoked, or its right to conduct business has been terminated or suspended by the jurisdiction of its formation, if the certificate of termination or the equivalent is not revoked or its existence, charter, or right to conduct business is not reinstated; or (D) an event requiring a winding up has occurred with respect to a nonfiling entity or foreign nonfiling entity that is a partner; (5) application by the partnership or another partner for the partner's expulsion by judicial decree because the partner: (A) engaged in wrongful conduct that adversely and materially affected the partnership business; (B) wilfully or persistently committed a material breach of: (i) the partnership agreement; or (ii) a duty owed to the partnership or the other partners under Sections 152.204-152.206; or (C) engaged in conduct relating to the partnership business that made it not reasonably practicable to carry on the business in partnership with that partner; (6) the partner's: (A) becoming a debtor in bankruptcy; (B) executing an assignment for the benefit of a creditor; (C) seeking, consenting to, or acquiescing in the appointment of a trustee, receiver, or liquidator of that partner or of all or substantially all of that partner's property; or (D) failing, not later than the 90th day after the appointment, to have vacated or stayed the appointment of a trustee, receiver, or liquidator of the partner or of all or substantially all of the partner's property obtained without the partner's consent or acquiescence, or not later than the 90th day after the date of expiration of a stay, failing to have the appointment vacated; (7) if a partner is an individual: (A) the partner's death; (B) the appointment of a guardian or general conservator for the partner; or (C) a judicial determination that the partner has otherwise become incapable of performing the partner's duties under the partnership agreement; (8) termination of a partner's existence; (9) if a partner has transferred all of the partner's partnership interest, redemption of the transferee's interest under Section 152.611; (10) an agreement to continue the partnership under Section 11.057(b) if the partnership has received a notice from the partner under Section 11.057(a)(6) requesting that the partnership be wound up; or (11) a conversion of the partnership if the partner: (A) did not consent to the conversion; and (B) failed to notify the partnership in writing of the partner's desire not to withdraw within 60 days after the later of: (i) the effective date of the conversion; or (ii) the date the partner receives actual notice of the conversion. (c) A withdrawal of a partner under the circumstances described in Subsection (b)(11) is effective immediately before the effective date of the conversion and is not considered a wrongful withdrawal under Section 152.503. (TRPA 6.01.) Sec. 152.502. EFFECT OF EVENT OF WITHDRAWAL ON PARTNERSHIP AND OTHER PARTNERS. A partnership continues after an event of withdrawal. The event of withdrawal affects the relationships among the withdrawn partner, the partnership, and the continuing partners as provided by Sections 152.503-152.506 and Subchapter H. (TRPA 2.06(a).) Sec. 152.503. WRONGFUL WITHDRAWAL; LIABILITY. (a) At any time before the occurrence of an event requiring a winding up of partnership business, a partner may withdraw from the partnership and cease to be a partner as provided by Section 152.501. (b) A partner's withdrawal is wrongful only if: (1) the withdrawal breaches an express provision of the partnership agreement; (2) in the case of a partnership for a definite term or particular undertaking or for which the partnership agreement provides for winding up on a specified event, before the expiration of the term, the completion of the undertaking, or the occurrence of the event, as appropriate: (A) the partner withdraws by express will; (B) the partner withdraws by becoming a debtor in bankruptcy; or (C) in the case of a partner that is not an individual, a trust other than a business trust, or an estate, the partner is expelled or otherwise withdraws because the partner wilfully dissolved or terminated; or (3) the partner is expelled by judicial decree under Section 152.501(b)(5). (c) In addition to other liability of the partner to the partnership or to the other partners, a wrongfully withdrawing partner is liable to the partnership and to the other partners for damages caused by the withdrawal. (TRPA 6.02.) Sec. 152.504. WITHDRAWN PARTNER'S POWER TO BIND PARTNERSHIP. (a) The action of a withdrawn partner occurring not later than the first anniversary of the date of the person's withdrawal binds the partnership if the transaction would bind the partnership before the person's withdrawal and the other party to the transaction: (1) does not have notice of the person's withdrawal as a partner; (2) had done business with the partnership within one year preceding the date of withdrawal; and (3) reasonably believed that the withdrawn partner was a partner at the time of the transaction. (b) A withdrawn partner is liable to the partnership for loss caused to the partnership arising from an obligation incurred by the withdrawn partner after the withdrawal date and for which the partnership is liable under Subsection (a). (TRPA 7.02.) Sec. 152.505. EFFECT OF WITHDRAWAL ON PARTNER'S EXISTING LIABILITY. (a) Withdrawal of a partner does not by itself discharge the partner's liability for an obligation of the partnership incurred before the date of withdrawal. (b) The estate of a deceased partner is liable for an obligation of the partnership incurred while the deceased was a partner to the same extent that a withdrawn partner is liable for an obligation of the partnership incurred before the date of withdrawal. (c) A withdrawn partner is discharged from liability incurred before the date of withdrawal by an agreement to that effect between the partner and a partnership creditor. (d) If a creditor of a partnership has notice of a partner's withdrawal and without the consent of the withdrawn partner agrees to a material alteration in the nature or time of payment of an obligation of the partnership incurred before the date of withdrawal, the withdrawn partner is discharged from the obligation. (TRPA 7.03(a), (b), (c), (d).) Sec. 152.506. LIABILITY OF WITHDRAWN PARTNER TO THIRD PARTY. A person who withdraws as a partner in a circumstance that is not an event requiring a winding up of partnership business under Section 11.051 or 11.057 is liable to another party as a partner in a transaction entered into by the partnership or a surviving partnership under Section 10.001 not later than the second anniversary of the date of the partner's withdrawal only if the other party to the transaction: (1) does not have notice of the partner's withdrawal; and (2) reasonably believed that the withdrawn partner was a partner at the time of the transaction. (TRPA 7.03(e).)
[Sections 152.507-152.600 reserved for expansion]
SUBCHAPTER H. REDEMPTION OF WITHDRAWING PARTNER'S OR
TRANSFEREE'S INTEREST
Sec. 152.601. REDEMPTION IF PARTNERSHIP NOT WOUND UP. The partnership interest of a withdrawn partner automatically is redeemed by the partnership as of the date of withdrawal in accordance with this subchapter if: (1) the event of withdrawal occurs under Sections 152.501(b)(1)-(9) and an event requiring a winding up of partnership business does not occur before the 61st day after the date of the withdrawal; or (2) the event of a withdrawal occurs under Section 152.501(b)(10). (TRPA 7.01(a).) Sec. 152.602. REDEMPTION PRICE. (a) Except as provided by Subsection (b), the redemption price of a withdrawn partner's partnership interest is the fair value of the interest on the date of withdrawal. (b) The redemption price of the partnership interest of a partner who wrongfully withdraws before the expiration of a definite term, the completion of a particular undertaking, or the occurrence of a specified event requiring a winding up of partnership business is the lesser of: (1) the fair value of the withdrawn partner's partnership interest on the date of withdrawal; or (2) the amount that the withdrawn partner would have received if an event requiring a winding up of partnership business had occurred at the time of the partner's withdrawal. (c) Interest is payable on the amount owed under this section. (TRPA 7.01(b).) Sec. 152.603. CONTRIBUTION OBLIGATION. If a wrongfully withdrawing partner would have been required to make contributions to the partnership under Section 152.707 or 152.708 if an event requiring winding up of the partnership business had occurred at the time of withdrawal, the withdrawn partner is liable to the partnership to make contributions to the partnership in that amount and pay interest on the amount owed. (TRPA 7.01(c).) Sec. 152.604. SETOFF FOR CERTAIN DAMAGES. The partnership may set off against the redemption price payable to the withdrawn partner the damages for wrongful withdrawal under Section 152.503(b) and all other amounts owed by the withdrawn partner to the partnership, whether currently due, including interest. (TRPA 7.01(d).) Sec. 152.605. ACCRUAL OF INTEREST. Interest payable under Sections 152.602-152.604 accrues from the date of the withdrawal to the date of payment. (TRPA 7.01(e).) Sec. 152.606. INDEMNIFICATION FOR CERTAIN LIABILITY. (a) A partnership shall indemnify a withdrawn partner against a partnership liability incurred before the date of withdrawal, except for a liability: (1) that is unknown to the partnership at the time; or (2) incurred by an act of the withdrawn partner under Section 152.504. (b) For purposes of this section, a liability is unknown to the partnership if it is not known to a partner other than the withdrawn partner. (TRPA 7.01(f).) Sec. 152.607. DEMAND OR PAYMENT OF ESTIMATED REDEMPTION. (a) If a deferred payment is not authorized under Section 152.608 and an agreement on the redemption price of a withdrawn partner's interest is not reached before the 121st day after the date a written demand for payment is made by either party, not later than the 30th day after the expiration of the period, the partnership shall: (1) pay to the withdrawn partner in cash the amount the partnership estimates to be the redemption price and any accrued interest, reduced by any setoffs and accrued interest under Section 152.604; or (2) make written demand for payment of its estimate of the amount owed by the withdrawn partner to the partnership, minus any amount owed to the withdrawn partner by the partnership. (b) If a deferred payment is authorized under Section 152.608 or a contribution or other amount is owed by the withdrawn partner to the partnership, the partnership may offer in writing to pay, or deliver a written statement of demand for, the amount it estimates to be the net amount owed, stating the amount and other terms of the obligation. (c) On request of the other party, the payment, tender, offer, or demand required or allowed by Subsection (a) or (b) must be accompanied or followed promptly by: (1) if payment, tender, offer, or demand is made or delivered by the partnership, a statement of partnership property and liabilities from the date of the partner's withdrawal and the most recent available partnership balance sheet and income statement, if any; and (2) an explanation of the computation of the estimated payment obligation. (d) The terms of a payment, tender, offer, or demand under Subsection (a) or (b) govern a redemption if: (1) accompanied by written notice that: (A) the payment or tendered amount, if made, fully satisfies a party's obligations relating to the redemption of the withdrawn partner's partnership interest; and (B) an action to determine the redemption price, a contribution obligation or setoff under Section 152.603 or 152.604, or other terms of the redemption obligation must be commenced not later than the first anniversary of the later of: (i) the date on which the written notice is given; or (ii) the date on which the information required by Subsection (c) is delivered; and (2) the party receiving the payment, tender, offer, or demand does not commence an action in the period described by Subdivision (1)(B). (TRPA 7.01(g), (h), (i), (j).) Sec. 152.608. DEFERRED PAYMENT ON WRONGFUL WITHDRAWAL. (a) A partner who wrongfully withdraws before the expiration of a definite term, the completion of a particular undertaking, or the occurrence of a specified event requiring a winding up of partnership business is not entitled to receive any portion of the redemption price until the expiration of the term, the completion of the undertaking, or the occurrence of the specified event, as appropriate, unless the partner establishes to the satisfaction of a court that earlier payment will not cause undue hardship to the partnership. (b) A deferred payment accrues interest. (c) The withdrawn partner may seek to demonstrate to the satisfaction of the court that security for a deferred payment is appropriate. (TRPA 7.01(k).) Sec. 152.609. ACTION TO DETERMINE TERMS OF REDEMPTION. (a) A withdrawn partner or the partnership may maintain an action against the other party under Section 152.211 to determine: (1) the terms of redemption of that partner's interest, including a contribution obligation or setoff under Section 152.603 or 152.604; or (2) other terms of the redemption obligations of either party. (b) The action must be commenced not later than the first anniversary of the later of: (1) the date of delivery of information required by Section 152.607(c); or (2) the date written notice is given under Section 152.607(d). (c) The court shall determine the terms of the redemption of the withdrawn partner's interest, any contribution obligation or setoff due under Section 152.603 or 152.604, and accrued interest and shall enter judgment for an additional payment or refund. (d) If deferred payment is authorized under Section 152.608, the court shall also determine the security for payment if requested to consider whether security is appropriate. (e) If the court finds that a party failed to tender payment or make an offer to pay or to comply with the requirements of Section 152.607(c) or otherwise acted arbitrarily, vexatiously, or not in good faith, the court may assess damages against the party, including, if appropriate, in an amount the court finds equitable: (1) a share of the profits of the continuing business; (2) reasonable attorney's fees; and (3) fees and expenses of appraisers or other experts for a party to the action. (TRPA 7.01(l).) Sec. 152.610. DEFERRED PAYMENT ON WINDING UP PARTNERSHIP. If a partner withdraws under Section 152.501 and not later than the 60th day after the date of withdrawal an event requiring winding up occurs under Section 11.051 or 11.057: (1) the partnership may defer paying the redemption price to the withdrawn partner until the partnership makes a winding up distribution to the remaining partners; and (2) the redemption price or contribution obligation is the amount the withdrawn partner would have received or contributed if the event requiring winding up had occurred at the time of the partner's withdrawal. (TRPA 7.01(m).) Sec. 152.611. REDEMPTION OF TRANSFEREE'S PARTNERSHIP INTEREST. (a) A partnership must redeem the partnership interest of a transferee for its fair value if: (1) the interest was transferred when: (A) the partnership was for a definite term not yet expired; (B) the partnership was for a particular undertaking not yet completed; or (C) the partnership agreement provided for winding up of the partnership business on a specified event that had not yet occurred; (2) the definite term of the partnership has expired, the particular undertaking has been completed, or the specified event has occurred; and (3) the transferee makes a written demand for redemption. (b) If an agreement for the redemption price of a transferee's interest is not reached before the 121st day after the date a written demand for redemption is made, the partnership must pay to the transferee in cash the amount the partnership estimates to be the redemption price and any accrued interest from the date of demand not later than the 30th day after the expiration of the period. (c) On request of the transferee, the payment required by Subsection (b) must be accompanied or followed by: (1) a statement of partnership property and liabilities from the date of the demand for redemption; (2) the most recent available partnership balance sheet and income statement, if any; and (3) an explanation of the computation of the estimated payment obligation. (d) If the payment required by Subsection (b) is accompanied by written notice that the payment is in full satisfaction of the partnership's obligations relating to the redemption of the transferee's interest, the payment, less interest, is the redemption price unless the transferee, not later than the first anniversary of the written notice, commences an action to determine the redemption price. (TRPA 7.01(n), (o), (p), (q).) Sec. 152.612. ACTION TO DETERMINE TRANSFEREE'S REDEMPTION PRICE. (a) A transferee may maintain an action against a partnership to determine the redemption price of the transferee's interest. (b) The court shall determine the redemption price of the transferee's interest and accrued interest and enter judgment for payment or refund. (c) If the court finds that the partnership failed to make payment or otherwise acted arbitrarily, vexatiously, or not in good faith, the court may assess against the partnership in an amount the court finds equitable: (1) reasonable attorney's fees; and (2) fees and expenses of appraisers or other experts for a party to the action. (d) The redemption of a transferee's interest under Sections 152.611(a) and (b) may be deferred as determined by the court if the partnership establishes to the satisfaction of the court that failure to defer redemption will cause undue hardship to the partnership business. (TRPA 7.01(r), (s).)
[Sections 152.613-152.700 reserved for expansion]
SUBCHAPTER I. SUPPLEMENTAL WINDING UP AND TERMINATION PROVISIONS
Sec. 152.701. EFFECT OF EVENT REQUIRING WINDING UP. On the occurrence of an event requiring winding up of a partnership business under Section 11.051 or 11.057: (1) the partnership continues until the winding up of its business is completed, at which time the partnership is terminated; and (2) the relationship among the partners is changed as provided by this subchapter. (TRPA 2.06(b), 8.02.) Sec. 152.702. PERSONS ELIGIBLE TO WIND UP PARTNERSHIP BUSINESS. (a) After the occurrence of an event requiring a winding up of a partnership business, the partnership business may be wound up by: (1) the partners who have not withdrawn; (2) the legal representative of the last surviving partner; or (3) a person appointed by the court to carry out the winding up under Subsection (b). (b) On application of a partner, a partner's legal representative or transferee, or a withdrawn partner whose interest is not redeemed under Section 152.608, a court, for good cause, may appoint a person to carry out the winding up and may make an order, direction, or inquiry that the circumstances require. (TRPA 8.03(a).) Sec. 152.703. RIGHTS AND DUTIES OF PERSON WINDING UP PARTNERSHIP BUSINESS. (a) To the extent appropriate for winding up, as soon as reasonably practicable, and in the name of and for and on behalf of the partnership, a person winding up a partnership's business may take the actions specified in Sections 11.052, 11.053, and 11.055. (b) Section 11.052(a)(2) shall not be applicable to a partnership. (TRPA 8.03(b).) Sec. 152.704. BINDING EFFECT OF PARTNER'S ACTION AFTER EVENT REQUIRING WINDING UP. After the occurrence of an event requiring winding up of the partnership business, a partnership is bound by a partner's act that: (1) is appropriate for winding up; or (2) would bind the partnership under Sections 152.301 and 152.302 before the occurrence of the event requiring winding up, if the other party to the transaction does not have notice that an event requiring winding up has occurred. (TRPA 8.05.) Sec. 152.705. PARTNER'S LIABILITY TO OTHER PARTNERS AFTER EVENT REQUIRING WINDING UP. (a) Except as provided by Subsection (b), after the occurrence of an event requiring winding up of the partnership business, the losses with respect to which a partner must contribute under Section 152.708(a) include losses from a liability incurred under Section 152.704. (b) A partner who incurs, with notice that an event requiring a winding up of the partnership business has occurred, a partnership liability under Section 152.704(2) by an act that is not appropriate for winding up is liable to the partnership for a loss caused to the partnership arising from that liability. (TRPA 8.04.) Sec. 152.706. DISPOSITION OF ASSETS. (a) In winding up the partnership business, the property of the partnership, including any required contributions of the partners under Sections 152.707 and 152.708, shall be applied to discharge its obligations to creditors, including partners who are creditors other than in the partners' capacities as partners. (b) A surplus shall be applied to pay in cash the net amount distributable to partners in accordance with their right to distributions under Section 152.707. (TRPA 8.06(a).) Sec. 152.707. SETTLEMENT OF ACCOUNTS. (a) Each partner is entitled to a settlement of all partnership accounts on winding up the partnership business. (b) In settling accounts among the partners, the partnership interest of a withdrawn partner that is not redeemed under Subchapter H is credited with a share of any profits for the period after the partner's withdrawal but is charged with a share of losses for that period only to the extent of profits credited for that period. (c) The profits and losses that result from the liquidation of the partnership property must be credited and charged to the partners' capital accounts. (d) The partnership shall make a distribution to a partner in an amount equal to that partner's positive balance in the partner's capital account. Except as provided by Section 152.304(b) or 152.801, a partner shall contribute to the partnership an amount equal to that partner's negative balance in the partner's capital account. (TRPA 8.06(b).) Sec. 152.708. CONTRIBUTIONS TO DISCHARGE OBLIGATIONS. (a) Except as provided by Sections 152.304(b) and 152.801, to the extent not taken into account in settling the accounts among partners under Section 152.707: (1) each partner shall contribute, in the proportion in which the partner shares partnership losses, the amount necessary to satisfy partnership obligations, excluding liabilities that creditors have agreed may be satisfied only with partnership property without recourse to individual partners; (2) if a partner fails to contribute, the other partners shall contribute the additional amount necessary to satisfy the partnership obligations in the proportions in which the partners share partnership losses; and (3) a partner or partner's legal representative may enforce or recover from the other partners, or from the estate of a deceased partner, contributions the partner or estate makes to the extent the amount contributed exceeds that partner's or the estate's share of the partnership obligations. (b) The estate of a deceased partner is liable for the partner's obligation to contribute to the partnership. (c) The following persons may enforce the obligation of a partner or the estate of a deceased partner to contribute to a partnership: (1) the partnership; (2) an assignee for the benefit of creditors of a partnership or a partner; or (3) a person appointed by a court to represent creditors of a partnership or a partner. (TRPA 8.06(c), (d), (e).) Sec. 152.709. CONTINUATION OF PARTNERSHIP. (a) If all the partners in a partnership for a definite term or for a particular undertaking or for which the partnership agreement provides for winding up on a specified event agree to continue the partnership business notwithstanding the expiration of the term, the completion of the undertaking, or the occurrence of the event, as appropriate, other than the withdrawal of a partner, the partnership is continued and the partnership agreement is considered amended to provide that the expiration, the completion, or the occurrence of the event did not result in an event requiring the winding up of the partnership business. (b) A continuation of the business for 90 days by the partners or those who habitually acted in the business during the term or undertaking or preceding the event, without a settlement or liquidation of the partnership business and without objection from a partner, is prima facie evidence of agreement by all partners to continue the business under Subsection (a). (c) The continuation of the business by the other partners or by those who habitually acted in the business before the notice under Section 11.057(b), other than the partner giving the notice, without any settlement or liquidation of the partnership business, is prima facie evidence of an agreement to continue the partnership under Section 11.057(b). (d) To approve a revocation under Section 11.151 by a partnership of a voluntary decision to wind up pursuant to the express will of all the partners as specified in Section 11.057(a)(2) or (3), prior to completion of the winding up process, all the partners must agree in writing to revoke the voluntary decision to wind up and to continue the business of the partnership. (e) To approve a revocation under Section 11.151 by a partnership of a voluntary decision to wind up pursuant to the express will of a majority-in-interest of the partners as specified in Section 11.057(a)(1), prior to completion of the winding up process, a majority-in-interest of the partners must agree in writing to revoke the voluntary decision to wind up and to continue the business of the partnership. (TRPA 4.07, 8.01(g).) Sec. 152.710. REINSTATEMENT. To approve a reinstatement of a partnership under Section 11.202, all remaining partners, or another group or percentage of partners as specified by the partnership agreement, must agree in writing to reinstate and continue the business of the partnership. (New.)
[Sections 152.711-152.800 reserved for expansion]
SUBCHAPTER J. LIMITED LIABILITY PARTNERSHIPS
Sec. 152.801. LIABILITY OF PARTNER. (a) Except as provided by Subsection (b), a partner in a limited liability partnership is not personally liable, directly or indirectly, by contribution, indemnity, or otherwise, for a debt or obligation of the partnership incurred while the partnership is a limited liability partnership. (b) A partner in a limited liability partnership is not personally liable for a debt or obligation of the partnership arising from an error, omission, negligence, incompetence, or malfeasance committed by another partner or representative of the partnership while the partnership is a limited liability partnership and in the course of the partnership business unless the first partner: (1) was supervising or directing the other partner or representative when the error, omission, negligence, incompetence, or malfeasance was committed by the other partner or representative; (2) was directly involved in the specific activity in which the error, omission, negligence, incompetence, or malfeasance was committed by the other partner or representative; or (3) had notice or knowledge of the error, omission, negligence, incompetence, or malfeasance by the other partner or representative at the time of the occurrence and then failed to take reasonable action to prevent or cure the error, omission, negligence, incompetence, or malfeasance. (c) Sections 2.101(1), 152.305, and 152.306 do not limit the effect of Subsection (a) in a limited liability partnership. (d) In this section, "representative" includes an agent, servant, or employee of a limited liability partnership. (e) Subsections (a) and (b) do not affect: (1) the liability of a partnership to pay its debts and obligations from partnership property; (2) the liability of a partner, if any, imposed by law or contract independently of the partner's status as a partner; or (3) the manner in which service of citation or other civil process may be served in an action against a partnership. (f) This section controls over the other parts of this chapter and the other partnership provisions regarding the liability of partners of a limited liability partnership, the chargeability of the partners for the debts and obligations of the partnership, and the obligations of the partners regarding contributions and indemnity. (TRPA 3.08(a).) Sec. 152.802. REGISTRATION. (a) In addition to complying with Sections 152.803 and 152.804, a partnership, to become a limited liability partnership, must file an application with the secretary of state in accordance with Chapter 4 and this section. The application must: (1) set out: (A) the name of the partnership; (B) the federal tax identification number of the partnership; (C) the street address of the partnership's principal office in this state or outside of this state, as applicable; and (D) the number of partners at the date of application; and (2) contain a brief statement of the partnership's business. (b) The application must be signed by: (1) a majority-in-interest of the partners; or (2) one or more partners authorized by a majority-in-interest of the partners. (c) A partnership is registered as a limited liability partnership by the secretary of state on: (1) the date on which a completed initial or renewal application is filed in accordance with Chapter 4; or (2) a later date specified in the application. (d) A registration is not affected by subsequent ch