2005 Texas Business Organizations Code CHAPTER 402. MISCELLANEOUS AND TRANSITION PROVISIONS

BUSINESS ORGANIZATION CODE

CHAPTER 402. MISCELLANEOUS AND TRANSITION PROVISIONS


	§ 402.001. APPLICABILITY UPON EFFECTIVE DATE.  (a) On or 
after the effective date of this code, this code applies to:
		(1)  a domestic entity formed on or after the effective 
date of this code;  
		(2)  a foreign filing entity, or other foreign entity, 
that is not registered with the secretary of state to transact 
business in this state before the effective date of this code;  and
		(3)  a foreign nonfiling entity, including a foreign 
limited liability partnership.
	(b)  The registration of a domestic limited liability 
partnership or foreign limited liability partnership under prior 
law and in effect on the effective date of this code continues to be 
governed by the prior law until expiration of the current term of 
registration, unless earlier withdrawn or revoked.
	(c)  Notwithstanding Subsections (a) and (b), after the 
effective date of this code, Sections 152.802 and 152.803, instead 
of prior law, govern a renewal of registration or other filing with 
the secretary of state made on behalf of a domestic limited 
liability partnership registered under prior law.
	(d)  Notwithstanding Subsection (a), a domestic partnership 
that files an initial application for registration as a limited 
liability partnership after the effective date of this code is 
governed by Subchapter J, Chapter 152.
	(e)  Except as provided by Subsection (b), on or after the 
effective date of this code, Subchapter K, Chapter 152, applies to 
the registration of a foreign limited liability partnership 
registered under prior law.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.  Amended by 
Acts 2005, 79th Leg., ch. 64, § 100, eff. Jan. 1, 2006.


	§ 402.002. EARLY EFFECTIVENESS OF FEES.  On or after the 
effective date of this code, the fees required by Chapter 4 apply to 
all filings made with the secretary of state, including comparable 
filings under prior law, regardless of whether an entity is subject 
to or has adopted this code.  The intent of this section is to:
		(1)  require a filing fee for all documents filed under 
either this code or the prior law without regard to the difference 
in designation of the document;  and
		(2)  make the filing fees described by Subdivision (1) 
uniform from the effective date of this code.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.                     


	§ 402.003. EARLY ADOPTION OF CODE BY EXISTING DOMESTIC 
ENTITY.  (a) A domestic entity formed before the effective date of 
this code may voluntarily elect to adopt and become subject to this 
code by:
		(1)  complying with the procedures to amend its 
governing documents to adopt this code and, if necessary, to cause 
its governing documents to comply with this code;  and
		(2)  if the domestic entity is a filing entity, filing 
with the secretary of state in accordance with Chapter 4:
			(A)  a statement that the filing entity is 
electing to adopt this code;  and
			(B)  if necessary, a certificate of amendment that 
would cause its certificate of formation to comply with this code.
	(b)  If amendments to the governing documents of a domestic 
entity that are necessary to conform the governing documents to 
this code would not require, under prior law, the vote or consent of 
the owners or members of the entity, this code and any amendment to 
the governing documents required by this section may be adopted by 
the governing authority only in the manner provided for an 
amendment of the particular governing document.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.                     


	§ 402.004. EARLY ADOPTION OF CODE BY REGISTERED FOREIGN 
FILING ENTITY.  A foreign filing entity registered with the 
secretary of state to transact business in this state before the 
effective date of this code may voluntarily elect to adopt and 
become subject to this code by filing with the secretary of state in 
accordance with Chapter 4:
		(1)  a statement that the foreign filing entity is 
electing to adopt this code;  and
		(2)  an amendment to its application for registration 
that would cause its application for registration to comply with 
this code.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.  Amended by 
Acts 2005, 79th Leg., ch. 64, § 101, eff. Jan. 1, 2006.


	§ 402.005. APPLICABILITY TO EXISTING ENTITIES.  (a) On or 
after January 1, 2010, if a domestic entity formed before January 1, 
2006, or a foreign filing entity registered with the secretary of 
state to transact business in this state before January 1, 2006, has 
not taken the actions specified by Section 402.003(a) or 402.004 to 
elect to adopt this code:
		(1)  this code applies to the entity and all actions 
taken by the managerial officials, owners, or members of the 
entity, except as otherwise expressly provided by this title;
		(2)  if the entity is a domestic or foreign filing 
entity, the entity is not considered to have failed to comply with 
this code if the entity's certificate of formation or application 
for registration, as appropriate, does not comply with this code;
		(3)  if the entity is a domestic filing entity, the 
entity shall conform its certificate of formation to the 
requirements of this code when it next files an amendment to its 
certificate of formation;  and
		(4)  if the entity is a foreign filing entity, the 
entity shall conform its application for registration to the 
requirements of this code when it next files an amendment to its 
application for registration.
	(b)  On or after January 1, 2010, and to the extent provided 
in Subchapter A, Chapter 23, this code applies to a corporation 
created under a special statute of this state outside this code 
before January 1, 2006.  The corporation, if its certificate of 
formation, or equivalent governing document, is filed with the 
secretary of state, may elect for this code to apply to the 
corporation at any time on or after January 1, 2006, and prior to 
January 1, 2010, to the extent provided in Subchapter A, Chapter 23, 
by filing a statement and taking other actions in a manner similar 
to a domestic filing entity under Section 402.003.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.  Amended by 
Acts 2005, 79th Leg., ch. 64, § 102, eff. Jan. 1, 2006.


	§ 402.006. APPLICABILITY TO CERTAIN ACTS, CONTRACTS, AND 
TRANSACTIONS.  Except as otherwise expressly provided by this 
title, all of the provisions of this code govern acts, contracts, or 
other transactions by an entity subject to this code or its 
managerial officials, owners, or members that occur on or after the 
mandatory application date.  The prior law governs the acts, 
contracts, or transactions of the entity or its managerial 
officials, owners, or members that occur before the mandatory 
application date.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.  Amended by 
Acts 2005, 79th Leg., ch. 64, § 103, eff. Jan. 1, 2006.


	§ 402.007. INDEMNIFICATION.  Chapter 8 governs any 
proposed indemnification by a domestic entity after the mandatory 
application date, regardless of whether the events on which the 
indemnification is based occurred before or after the mandatory 
application date.  In a case in which indemnification is permitted 
but not required under Chapter 8, a provision relating to 
indemnification contained in the governing documents of a domestic 
entity on the mandatory application date that would otherwise have 
the effect of limiting the nature or type of indemnification 
permitted by Chapter 8 may not be construed after the mandatory 
application date as limiting the indemnification authorized by 
Chapter 8 unless the provision is intended to limit or restrict 
permissive indemnification under applicable law.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.  Amended by 
Acts 2005, 79th Leg., ch. 64, § 104, eff. Jan. 1, 2006.


	§ 402.008. MEETINGS OF OWNERS AND MEMBERS;  CONSENTS;  
VOTING OF INTERESTS.  (a) Except as provided by Subsection (b) and 
regardless of whether a proxy or consent was executed by an owner or 
member before the mandatory application date, Chapter 6 and any 
other applicable provision of this code apply to:
		(1)  a meeting of owners or members held on or after the 
mandatory application date;
		(2)  an action undertaken by owners or members under a 
written consent that takes effect on or after the mandatory 
application date;
		(3)  a vote cast at a meeting described by Subdivision 
(1);  and            
		(4)  consent given for an action described by 
Subdivision (2).              
	(b)  Prior law applies to a meeting of owners or members and 
to any vote cast at a meeting described by this section if the 
meeting was initially called for a date before the mandatory 
application date and notice of the meeting was given to owners or 
members entitled to vote at the meeting.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.                     


	§ 402.009. MEETINGS OF GOVERNING AUTHORITY AND 
COMMITTEES;  CONSENTS.  (a) Except as provided by Subsection (b), 
Chapter 6 and any other applicable provision of this code apply to:
		(1)  a meeting of the governing authority or a 
committee of the governing authority held on or after the mandatory 
application date;
		(2)  an action undertaken by the governing authority or 
a committee of the governing authority under a written consent that 
takes effect on or after the mandatory application date;
		(3)  a vote cast at a meeting described by Subdivision 
(1);  and            
		(4)  consent given for an action described by 
Subdivision (2).              
	(b)  Prior law applies to a meeting of the governing 
authority or a committee of the governing authority and to any vote 
cast at a meeting described by this section if the meeting was 
initially called for a date before the mandatory application date 
and notice of the meeting was given to governing persons entitled to 
vote at the meeting.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.                     


	§ 402.010. SALE OF ASSETS, MERGERS, REORGANIZATIONS, 
CONVERSIONS.  Chapter 10 and any other applicable provisions of 
this code apply to a transaction consummated by an entity after the 
mandatory application date, except that if a required approval of 
the owners or members of the entity has been given before the 
mandatory application date or has been given after the mandatory 
application date but at a meeting of owners or members initially 
called for a date before the mandatory application date, the 
transaction shall be governed by the prior law.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.                     


	§ 402.011. WINDING UP AND TERMINATION.  (a) Chapter 11 
applies to:        
		(1)  an action for involuntary or judicial winding up 
and termination commenced after the mandatory application date;  or
		(2)  a voluntary winding up and termination proceeding 
initiated after the mandatory application date by:
			(A)  the governing authority;                                                
			(B)  the terms of the governing documents;  or                               
			(C)  applicable law.                                                         
	(b)  The prior law governs:                                                    
		(1)  an action described by Subsection (a)(1) that is 
pending on the mandatory application date;  or
		(2)  a proceeding described by Subsection (a)(2) 
initiated before the mandatory application date.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.                     


	§ 402.012. REGISTRATION OF CERTAIN FOREIGN ENTITIES.  A 
foreign entity that has transacted intrastate business in this 
state before the mandatory application date and that is required by 
Chapter 9 to register to transact business is not subject to a 
direct or indirect penalty as a result of failure to register under 
Chapter 9 if the application for registration is filed not later 
than the 30th day after the mandatory application date.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.                     


	§ 402.013. REINSTATEMENT OF ENTITIES CANCELED, REVOKED, 
INVOLUNTARILY DISSOLVED, SUSPENDED, OR FORFEITED UNDER PRIOR 
LAW.  (a) On or after January 1, 2006, and before January 1, 2010, a 
domestic filing entity whose certificate of formation or equivalent 
governing document has been canceled, revoked, involuntarily 
dissolved, suspended, or forfeited under prior law may reinstate 
its certificate of formation or equivalent governing document in 
accordance with:
		(1)  prior law;  or                                                           
		(2)  this code if it also complies with Section 
402.003.                    
	(b)  On or after January 1, 2006, and before January 1, 2010, 
a foreign filing entity whose registration to do business has been 
canceled, revoked, involuntarily dissolved, suspended, or 
forfeited under prior law may reinstate its registration in 
accordance with:
		(1)  prior law;  or                                                           
		(2)  this code if it also complies with Section 
402.004.                    
	(c)  If the certificate of formation of a domestic filing 
entity or the registration to do business of a foreign filing entity 
is forfeited under the Tax Code, the entity must revive the 
certificate of formation or registration in accordance with that 
code.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.  Amended by 
Acts 2005, 79th Leg., ch. 64, § 105, eff. Jan. 1, 2006.


	§ 402.014. MAINTENANCE OF PRIOR ACTION.  Except as 
expressly provided by this title, this code does not apply to an 
action or proceeding commenced before the mandatory application 
date.  Prior law applies to the action or proceeding.

Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.