BUSINESS ORGANIZATIONS CODE
CHAPTER 4. FILINGS
SUBCHAPTER A. GENERAL PROVISIONS
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
SUBCHAPTER B. WHEN FILINGS TAKE EFFECT
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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."
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
SUBCHAPTER C. CORRECTION AND AMENDMENT
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
SUBCHAPTER D. FILING FEES
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 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.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
