2005 Texas Code - Business Corporation Act ARTICLE 10.01. FILING AND FILING FEES


Business Corporation Act
Part 9.
Art. 9.01. Interrogatories by Secretary of State A. The Secretary of State may propound to any corporation, domestic or foreign, subject to the provisions of this Act, and to any officer or director thereof, such interrogatories as may be reasonably necessary and proper to enable him to ascertain whether such corporation has complied with all the provisions of this Act. Such interrogatories shall be answered within thirty days after the mailing thereof, or within such additional time as shall be fixed by the Secretary of State, and the answers thereto shall be full and complete and shall be made in writing and under oath. If such interrogatories be directed to an individual, they shall be answered by him, and if directed to a corporation, they shall be answered by an officer of the corporation. The Secretary of State need not file any document to which such interrogatories relate until such interrogatories be answered as herein provided, and not then if the answers thereto disclose that such document is not in conformity with the provisions of this Act. The Secretary of State shall certify to the Attorney General, for such action as the Attorney General may deem appropriate, all interrogatories and answers thereto which disclose a violation of the provisions of this Act. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts 1989, 71st Leg., ch. 801, Sec. 41, eff. Aug. 28, 1989. Art. 9.02. Information Disclosed by Interrogatories A. Interrogatories propounded by the Secretary of State and the answers thereto shall not be open to public inspection nor shall the Secretary of State disclose any facts or information obtained therefrom except insofar as his official duty may require the same to be made public or in the event such interrogatories or the answers thereto are required for evidence in any criminal proceedings or in any other action by this State. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Art. 9.03. Powers of Secretary of State A. The Secretary of State shall have the power and authority reasonably necessary to enable him to administer this Act efficiently and to perform the duties therein imposed upon him. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Art. 9.04. Appeals from Secretary of State A. If the Secretary of State shall fail to approve any articles of incorporation, application for certificate of authority to transact business in this State, amendment, merger, share exchange, conversion , or dissolution, or any other document required by this Act to be approved by the Secretary of State before the same shall be filed in his office, he shall, within ten days after the delivery thereof to him, give written notice of his disapproval to the person, corporation, or other entity, domestic or foreign, delivering the same, specifying in such notice the reasons therefor. From such disapproval such person, corporation, or other entity may appeal to any district court of Travis County by filing with the clerk of such court a petition setting forth a copy of the articles or other document sought to be filed and a copy of the written disapproval thereof by the Secretary of State; whereupon the matter shall be tried de novo by the court, and the court shall either sustain the action of the Secretary of State or direct him to take such action as the court may deem proper. B. Appeals from all final orders and judgments entered by the district court under this Article in review of any ruling or decision of the Secretary of State may be taken as in other civil actions. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts 1997, 75th Leg., ch. 375, Sec. 41, eff. Sept. 1, 1997. Art. 9.05. Certificates and Certified Copies to be Received in Evidence A. All certificates issued by the Secretary of State in accordance with the provisions of this Act, and all copies of documents filed in his office in accordance with the provisions of this Act, when certified by him, shall be taken and received in all courts, public offices, and official bodies as prima facie evidence of the facts therein stated, and shall be subject to recordation. A certificate by the Secretary of State, under the state seal, as to the existence or non-existence of the facts relating to corporations which would not appear from a certified copy of any of the foregoing documents or certificates shall be taken and received in all courts, public offices, and official bodies as prima facie evidence of the existence or non-existence of the facts therein stated. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts 1993, 73rd Leg., ch. 300, Sec. 25, eff. Aug. 30, 1993. Art. 9.06. Forms to be Promulgated by Secretary of State A. Forms may be promulgated by the Secretary of State for all reports and all other documents required to be filed in the office of the Secretary of State. The use of such forms, however, shall not be mandatory, except in instances in which the law may specifically so provide. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Art. 9.07. Time for Filing Documents in the Office of the Secretary of State A. Except as provided by Section B of this article, if a document is required to be filed in the office of the Secretary of State by any provision of this Act, that requirement shall be construed to include the requirement that the document be filed with reasonable promptness. B. A person required under this Act to file with the Secretary of State a change of registered office or agent, an application or certificate of withdrawal or termination, or articles of dissolution 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. C. A person who violates Section B of this article 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 section, 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 article. D. The attorney general may bring an action in the name of the state to restrain or enjoin a person from violating Section B of this article. E. In an action or proceeding brought against a person who has not complied with Section B of this article, 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 Section B of this article. F. A person who is entitled to recover damages under Section E of this article 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 section to the extent practicable. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts 2001, 77th Leg., ch. 757, Sec. 16, eff. Sept. 1, 2001. Art. 9.09. Waiver of Notice Whenever any notice is required to be given to any shareholder or director of a corporation under the provisions of this Act or under the provisions of the articles of incorporation or bylaws of the corporation, a waiver thereof in writing signed by the person or persons entitled to such notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be equivalent to the giving of such notice. The business to be transacted at a regular or special meeting of the shareholders, directors, or members of a committee of directors or the purpose of a meeting is not required to be specified in a written waiver of notice or a waiver by electronic transmission unless required by the articles of incorporation or the bylaws. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts 2003, 78th Leg., ch. 238, Sec. 37, eff. Sept. 1, 2003. Art. 9.10. Actions Without a Meeting; Telephone Meetings A. (1) Any action required by this Act to be taken at any annual or special meeting of shareholders, or any action which may be taken at any annual or special meeting of shareholders, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall have been signed by the holder or holders of all the shares entitled to vote with respect to the action that is the subject of the consent. The articles of incorporation may provide that any action required by this Act to be taken at any annual or special meeting of shareholders, or any action which may be taken at any annual or special meeting of shareholders, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holder or holders of shares having not less than the minimum number of votes that would be necessary to take such action at a meeting at which holders of all shares entitled to vote on the action were present and voted. (2) Every written consent signed by the holders of less than all the shares entitled to vote with respect to the action that is the subject of the consent shall bear the date of signature of each shareholder who signs the consent. No written consent signed by the holder of less than all the shares entitled to vote with respect to the action that is the subject of the consent shall be effective to take the action that is the subject of the consent unless, within 60 days after the date of the earliest dated consent delivered to the corporation in a manner required by this Article, a consent or consents signed by the holder or holders of shares having not less than the minimum number of votes that would be necessary to take the action that is the subject of the consent are delivered to the corporation by delivery to its registered office, registered agent, principal place of business, transfer agent, registrar, exchange agent or an officer or agent of the corporation having custody of the books in which proceedings of meetings of shareholders are recorded. Delivery shall be by hand or certified or registered mail, return receipt requested. Delivery to the corporation's principal place of business shall be addressed to the president or principal executive officer of the corporation. (3) A telegram, telex, cablegram, or other electronic transmission by a shareholder consenting to an action to be taken is considered to be written, signed, and dated for the purposes of this article if the transmission sets forth or is delivered with information from which the corporation can determine that the transmission was transmitted by the shareholder and the date on which the shareholder transmitted the transmission. The date of transmission is the date on which the consent was signed. Consent given by telegram, telex, cablegram, or other electronic transmission may not be considered delivered until the consent is reproduced in paper form and the paper form is delivered to the corporation at its registered office in this state or its principal place of business, or to an officer or agent of the corporation having custody of the book in which proceedings of shareholder meetings are recorded. Notwithstanding Subsection (2) of this section, consent given by telegram, telex, cablegram, or other electronic transmission may be delivered to the principal place of business of the corporation or to an officer or agent of the corporation having custody of the book in which proceedings of shareholder meetings are recorded to the extent and in the manner provided by resolution of the board of directors of the corporation. (4) Any photographic, photostatic, facsimile, or similarly reliable reproduction of a consent in writing signed by a shareholder may be substituted or used instead of the original writing for any purpose for which the original writing could be used, if the reproduction is a complete reproduction of the entire original writing. (5) Prompt notice of the taking of any action by shareholders without a meeting by less than unanimous written consent shall be given to those shareholders who did not consent in writing to the action. (6) If any action by shareholders is taken by written consent, any articles or documents filed with the Secretary of State as a result of the taking of the action shall state, in lieu of any statement required by the Act concerning the number of shares outstanding and entitled to vote on the action or concerning any vote of shareholders, that written consent has been given in accordance with the provisions of this Article and that any written notice required by this Article has been given. B. Unless otherwise restricted by the articles of incorporation or bylaws, any action required or permitted to be taken at a meeting of the board of directors or any committee may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all the members of the board of directors or committee, as the case may be. A telegram, telex, cablegram, or other electronic transmission by a director consenting to an action to be taken and transmitted by a director is considered written, signed, and dated for the purposes of this article if the transmission sets forth or is delivered with information from which the corporation can determine that the transmission was transmitted by the director and the date on which the director transmitted the transmission. Such consent shall have the same force and effect as a unanimous vote at a meeting, and may be stated as such in any document or instrument filed with the Secretary of State. C. Subject to the provisions required or permitted by this Act for notice of meetings, unless otherwise restricted by the articles of incorporation or by-laws, shareholders, members of the board of directors, or members of any committee designated by such board, may participate in and hold a meeting of such shareholders, board, or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section shall constitute presence in person at such meeting, except where a person participates in the 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. D. If action is taken with respect to a particular matter by the holders of shares of a class or series by means of a written consent in compliance with Section A of this Article, any provision of this Act that requires advance notice of a meeting or of the proposed action will not apply as to that class or series for such action. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts 1967, 60th Leg., p. 1728, ch. 657, Sec. 17, eff. June 17, 1967; Acts 1973, 63rd Leg., p. 1511, ch. 545, Sec. 44, eff. Aug. 27, 1973; Acts 1989, 71st Leg., ch. 801, Sec. 43, eff. Aug. 28, 1989; Acts 1991, 72nd Leg., ch. 901, Sec. 40, eff. Aug. 26, 1991; Acts 1997, 75th Leg., ch. 375, Sec. 42, eff. Sept. 1, 1997. Sec. A amended by Acts 2003, 78th Leg., ch. 238, Sec. 38, eff. Sept. 1, 2003; Sec. B amended by Acts 2003, 78th Leg., ch. 238, Sec. 38, eff. Sept. 1, 2003. Art. 9.11. Application to Foreign and Interstate Commerce A. The provisions of this Act shall apply to commerce with foreign nations and among the several states only in so far as the same may be permitted under the provisions of the Constitution of the United States. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Art. 9.12. Reservation of Power A. The Legislature shall at all times have power to prescribe such regulations, provisions, and limitations as it may deem advisable, which regulations, provisions, and limitations shall be binding upon any and all corporations subject to the provisions of this Act, and the Legislature shall have power to amend, repeal, or modify this Act. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Art. 9.13. Effect of Invalidity of Part of This Act A. If a court of competent jurisdiction shall adjudge to be invalid or unconstitutional any clause, sentence, subsection, section, or Article of this Act, such judgment or decree shall not affect, impair, invalidate, or nullify the remainder of this Act, but the effect thereof shall be confined to the clause, sentence, subsection, section, or Article of this Act so adjudged to be invalid or unconstitutional. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Art. 9.14. To what Corporations This Act Applies; Procedure for Adoption of Act by Existing Corporations A. This Act applies to each domestic corporation and to each foreign corporation that is transacting business in this state, regardless of whether the foreign corporation is registered to transact business in this state. This Act does not apply to domestic corporations organized under any statute other than this Act or to any foreign corporations granted authority to transact business within this State under any statute other than this Act; provided, however, that if any domestic corporation was heretofore or is hereafter organized under or is governed by a statute other than this Act or the Texas Non-Profit Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil Statutes) that contains no provisions in regard to some of the matters provided for in this Act, or any foreign corporation was heretofore or is hereafter granted authority to transact business within this State under a statute other than this Act or the Texas Non-Profit Corporation Act that contains no provisions in regard to some of the matters provided for in this Act in respect of foreign corporations, or if such a statute specifically provides that the general laws for incorporation or for the granting of a certificate of authority to transact business in this State, as the case may be, shall supplement the provisions of such statute, then the provisions of this Act shall apply to the extent that they are not inconsistent with the provisions of such other statute; provided further, however, that this Act shall not apply to any domestic corporation organized under or governed by the Texas Non-Profit Corporation Act or any foreign corporation granted authority to transact business within this State under the Texas Non-Profit Corporation Act. B. For a period of five (5) years from and after the effective date of this Act, it shall not apply to any domestic corporation duly chartered or existing on said effective date or to any foreign corporation holding, on that date, a valid permit to do business in this State, unless such domestic or foreign corporation shall, during such period of five (5) years, voluntarily elect to adopt the provisions of this Act and shall comply with the procedure prescribed by Section C of this Article. C. During the period of five (5) years from and after the effective date of this Act, any domestic corporation duly chartered or existing prior to said effective date and any foreign corporation holding a valid permit to do business in this State, prior to the effective date of this Act, may voluntarily elect to adopt the provisions of this Act and may become subject to its provisions by taking the following steps: (1) As to domestic corporations, a resolution reciting that the corporation voluntarily adopts this Act shall be adopted by the board of directors and shareholders by the procedure prescribed by this Act for the amendment of articles of incorporation. As to foreign corporations, a resolution shall be adopted by the board of directors, reciting that the corporation voluntarily adopts this Act. (2) Upon adoption of the required resolution or resolutions, an instrument shall be executed in duplicate by the corporation by its president or a vice president and by its secretary or an assistant secretary, and verified by one of the officers signing such statement, which shall set forth: (a) The name of the corporation. (b) Each resolution adopted by the corporation. (c) The date of the adoption of each resolution. (d) The post office address of its initial registered office, and the name of its initial registered agent at such address. (3) Duplicate originals of such document shall be delivered to the Secretary of State. If the Secretary of State finds that such document conforms to law, he shall, when all fees and franchise taxes have been paid as prescribed by law: (a) Endorse on each of such duplicate originals the word "Filed," and the month, day, and year of the filing thereof. (b) File one of such duplicate originals in his office. (c) Deliver the other duplicate original to the corporation or its representative. (4) Upon the filing of such document, all provisions of this Act shall thereafter apply to the corporation. D. Except for the exceptions and limitations of Section A of this Article, this Act shall apply to all domestic corporations organized after the date on which this Act becomes effective and to all foreign corporations transacting, or seeking to transact, business within this State and not holding, on the effective date of this Act, a valid permit so to do, and to all domestic and foreign corporations electing within five (5) years to adopt this Act and manifesting their election in the manner provided in Section C of this Article. E. Effective September 6, 1960, this Act shall apply to all domestic corporations and to all foreign corporations transacting or seeking to transact business in this State, except for the exceptions and limitations of Section A of this Article and with the further exception that no domestic corporation existing at the time that this Act becomes effective and no foreign corporation holding a valid permit to do business in this State at the time this Act becomes effective, which has not adopted this Act prior to September 6, 1960 by complying with Section C of this Article and which has not amended its articles of incorporation or its certificate of authority, as the case may be, after this Act becomes applicable thereto, shall be deemed to have failed to comply with the provisions of this Act by reason of the fact that: (1) The name of such corporation does not conform with the provisions of Articles 2.05A(1) and 8.03A(1) of this Act provided such name does conform with the other provisions of this Act and all other laws of this State. (2) Such corporation has never received for the issuance of shares consideration of the value of at least One Thousand Dollars ($1,000) in conformity with the minimum requirements of this Act. If any such corporation should amend its articles of incorporation or its certificate of authority, as the case may be, after this Act becomes applicable thereto, such corporation must, simultaneously with or prior to filing such amendment with the Secretary of State, take such action as may be necessary to bring such corporation into conformity with the provisions of this Act. F. Except for domestic and foreign corporations organized for the purposes set forth in Section A above, each domestic corporation existing on September 6, 1955, which meanwhile has not been dissolved nor adopted this Act by complying with Section C of this Article and each foreign corporation holding a valid permit to do business in this State on September 6, 1955, which meanwhile has not surrendered its permit nor adopted this Act by complying with Section C of this Article, shall execute and file, as a part of its annual report required to be filed for franchise tax purposes under Article 7089 of the Revised Civil Statutes of Texas between January 1 and March 15, 1960, the following described statement: (1) Such statement shall be executed in duplicate by the president or a vice-president and by the secretary or an assistant secretary of the corporation, and verified by one of the officers signing such statement, and shall set forth: (a) The name of the corporation; (b) The post office address of its initial registered office, and the name of its initial registered agent at such address; (c) That such designation and appointment was authorized by resolution duly adopted by its board of directors. (2) Duplicate originals of such statement shall be delivered to the Secretary of State. If the Secretary of State finds that such statement conforms to law, he shall when all fees and franchise taxes have been paid as prescribed by law: (a) Endorse on each of such duplicate originals the word "Filed", and the month, day and year of the filing thereof; (b) File one of such duplicate originals in his office; (c) Deliver the other duplicate original to the corporation or its representative. (3) No fee shall be charged for the filing of such statement. (4) Such statement shall not become effective until September 6, 1960, and the registered office and registered agent designated therein may be changed at any time in accordance with the provisions of this Act. (5) Such statement shall be deemed to be a part of the annual report for franchise tax purposes, and failure to file such statement shall subject the corporation to the penalties set forth in Articles 7089 et seq. of the Revised Civil Statutes of Texas for failure to file an annual report. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Amended by Acts 1959, 56th Leg., p. 224, ch. 132, Sec. 1 to 3; Acts 1989, 71st Leg., ch. 801, Sec. 44, eff. Aug. 28, 1989. Sec. A amended by Acts 2003, 78th Leg., ch. 238, Sec. 39, eff. Sept. 1, 2003. Art. 9.15. Extent to Which Existing Laws Shall Remain Applicable to Corporations A. Except as provided in the last preceding Article, existing corporations shall continue to be governed by the laws heretofore applicable thereto. B. Except as provided in Section B of Article 9.16 of this Act, any special limitations, obligations, liabilities, and powers, applicable to a particular kind of corporation for which special provision is made by the laws of this State, including, (but not excluding other corporations) those corporations subject to supervision under Article 1524a of the Revised Civil Statutes of Texas, shall continue to be applicable to any such corporation, and this Act is not intended to repeal and does not repeal the statutory provisions providing for these special limitations, obligations, liabilities, and powers. C. Provided that nothing in this Act shall in anywise affect or nullify the Antitrust Laws of this State. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Art. 9.16. Repeal of Existing Laws; Extent and Effect Thereof A. Subject to the provisions of the two last preceding Articles of this Act and of Section C of Article 2.02 of this Act and Section B of this Article, and excluding any existing general act not inconsistent with any provision of this Act, no law of this State pertaining to private corporations, domestic or foreign, shall hereafter apply to corporations organized under this Act, or which obtain authority to transact business in this State under this Act, or to existing corporations which adopt this Act. B. Chapter 15 of Title 32, Revised Civil Statutes of Texas, 1925, as amended, is hereby repealed effective five (5) years after the date on which this Act becomes effective; provided that such Chapter 15, Title 32, shall not hereafter apply to corporations organized under this Act, or which obtain authority to transact business in this State under this Act, or to existing corporations which adopt this Act. C. The repeal of a prior act by this Act shall not affect any right accrued or established, or any liability or penalty incurred, under the provisions of such Act, prior to the repeal thereof. Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955.

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