CHAPTER 9. FOREIGN ENTITIES
BUSINESS ORGANIZATIONS CODE
TITLE 1. GENERAL PROVISIONS
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 9.005. SUPPLEMENTAL INFORMATION REQUIRED IN APPLICATION FOR
REGISTRATION OF FOREIGN LIMITED LIABILITY COMPANY. (a) This
section applies only to a foreign limited liability company
governed by a company agreement that establishes or provides for
the establishment of a designated series of members, managers,
membership interests, or assets that has any of the
characteristics described by Subsection (b).
(b) A foreign limited liability company must state in its
application for registration as a foreign limited liability
company whether:
(1) the series has:
(A) separate rights, powers, or duties with respect to specified
property or obligations of the foreign limited liability company;
or
(B) separate profits and losses associated with specified
property or obligations of the foreign limited liability company;
(2) any debts, liabilities, obligations, and expenses incurred,
contracted for, or otherwise existing with respect to a
particular series shall be enforceable against the assets of that
series only, and not against the assets of the company generally
or the assets of any other series; and
(3) any debts, liabilities, obligations, and expenses incurred,
contracted for, or otherwise existing with respect to the company
generally or any other series shall be enforceable against the
assets of that series.
Added by Acts 2009, 81st Leg., R.S., Ch.
84, Sec. 9, eff. September 1, 2009.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 9.007. APPLICATION FOR REGISTRATION OF FOREIGN LIMITED
LIABILITY PARTNERSHIP. (a) A foreign limited liability
partnership registers by filing an application for registration
under this section as provided by Chapter 4.
(b) The application for registration must state:
(1) the partnership's name;
(2) the federal tax identification number of the partnership;
(3) the partnership's jurisdiction of formation;
(4) the date of initial registration as a limited liability
partnership under the laws of the state of formation;
(5) the date the foreign entity began or will begin to transact
business in this state;
(6) that the partnership exists as a valid limited liability
partnership under the laws of the state of its formation;
(7) the number of partners at the date of the statement;
(8) each business or activity that the partnership proposes to
pursue in this state, which may be stated to be any lawful
business or activity under the laws of this state;
(9) the address of the principal office of the partnership;
(10) the address of the initial registered office and the name
and address of the initial registered agent for service of
process required to be maintained under Section 152.904; and
(11) that the secretary of state is appointed the agent of the
partnership for service of process under the same circumstances
as set forth by Section 5.251 for a foreign filing entity.
(c) Subchapter K, Chapter 152, governs the registration of a
foreign limited liability partnership to transact business in
this state.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 26, eff. January 1, 2006.
Sec. 9.008. EFFECT OF REGISTRATION. (a) The registration of a
foreign entity other than a foreign limited liability partnership
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).
(c) Subchapter K, Chapter 152, governs the effect of
registration of a foreign limited liability partnership to
transact business in this state.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 27, eff. January 1, 2006.
Sec. 9.009. AMENDMENTS TO REGISTRATION. (a) A foreign filing
entity must amend its registration to reflect:
(1) a change to its name;
(2) a change in the business or activity stated in its
application for registration; and
(3) if the foreign filing entity is a limited partnership:
(A) the admission of a new general partner;
(B) the withdrawal of a general partner; and
(C) a change in the name of the general partner stated in its
application for registration.
(a-1) A foreign filing entity may amend the entity's application
for registration to disclose a change that results from:
(1) a conversion from one type of foreign filing entity to
another type of foreign filing entity with the foreign filing
entity making the amendment succeeding to the registration of the
original foreign filing entity; or
(2) a merger into another foreign filing entity with the foreign
filing entity making the amendment succeeding to the registration
of the original foreign filing entity.
(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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 28, eff. January 1, 2006.
Acts 2009, 81st Leg., R.S., Ch.
84, Sec. 10, eff. September 1, 2009.
Sec. 9.010. NAME CHANGE OF FOREIGN FILING ENTITY. If a foreign
filing entity authorized to transact business 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
transact business 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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 29, eff. January 1, 2006.
Acts 2007, 80th Leg., R.S., Ch.
688, Sec. 45, eff. September 1, 2007.
Sec. 9.011. VOLUNTARY WITHDRAWAL OF REGISTRATION. (a) A
foreign filing entity or foreign limited liability partnership
registered in this state may withdraw the entity's or
partnership'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 or foreign limited
liability partnership as registered in this state;
(2) the type of foreign filing entity and the entity's or
partnership's jurisdiction of formation;
(3) the address of the principal office of the foreign filing
entity or foreign limited liability partnership;
(4) that the foreign filing entity or foreign limited liability
partnership no longer is transacting business in this state;
(5) that the foreign filing entity or foreign limited liability
partnership:
(A) revokes the authority of the entity's or partnership'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 or foreign limited liability
partnership was authorized to transact business in this state may
be made on the foreign filing entity or foreign limited liability
partnership 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 or foreign
limited liability partnership 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 stating that all taxes
administered by the comptroller under Title 2, Tax Code, have
been paid must be filed with the certificate of withdrawal in
accordance with Chapter 4 if the foreign filing entity is a
taxable entity under Chapter 171, Tax Code, other than a foreign
nonprofit corporation.
(d) If the existence or separate existence of a foreign filing
entity or foreign limited liability partnership 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 or foreign
limited liability partnership 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 or foreign limited liability partnership
with respect to a cause of action arising out of business or
activity in this state.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 30, eff. January 1, 2006.
Acts 2009, 81st Leg., R.S., Ch.
84, Sec. 11, eff. September 1, 2009.
Sec. 9.012. AUTOMATIC WITHDRAWAL ON CONVERSION TO DOMESTIC
FILING ENTITY. A foreign filing entity or foreign limited
liability partnership registered in this state that converts to a
domestic filing entity is considered to have withdrawn its
registration on the effective date of the conversion. This
section also applies to a conversion and continuance under
Section 10.1025.
Added by Acts 2009, 81st Leg., R.S., Ch.
84, Sec. 12, eff. September 1, 2009.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 9.054. LATE FILING FEE. (a) The secretary of state may
collect from a foreign filing entity a late filing fee if the
entity has transacted business in this state for more than 90
days without registering under this chapter. The secretary may
condition the effectiveness of a registration after the 90-day
period on the payment of the late filing fee.
(b) The amount of the late filing fee is an amount equal to the
product of the amount of the registration fee for the foreign
filing entity multiplied by the number of calendar years that the
entity transacted business in this state without being
registered. For purposes of computing the fee, a partial calendar
year is counted as a full calendar year.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
688, Sec. 46, eff. September 1, 2007.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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:
(1) the entity has failed to, and, before the 91st day after the
date notice was mailed, has not corrected the entity's failure
to:
(A) file a report within the period required by law or pay a fee
or penalty prescribed by law when due and payable;
(B) maintain a registered agent or registered office in this
state as required by law; or
(C) amend its registration when required by law; or
(2) the entity has failed to, and, before the 16th day after the
date notice was mailed, has not corrected the entity's failure to
pay a fee required in connection with the application for
registration, or payment of the fee was dishonored when presented
by the state for payment.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
688, Sec. 47, eff. September 1, 2007.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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 tax clearance letter 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
taxable entity under Chapter 171, Tax Code, other than a foreign
nonprofit corporation.
(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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
84, Sec. 13, eff. September 1, 2009.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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).
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 9.162. APPLICABILITY OF SUBCHAPTER TO FOREIGN LIMITED
LIABILITY PARTNERSHIPS. This subchapter applies to a partnership
registered as a foreign limited liability partnership to the same
extent as it applies to a foreign filing entity.
Added by Acts 2005, 79th Leg., Ch.
64, Sec. 31, eff. January 1, 2006.
SUBCHAPTER E. BUSINESS, RIGHTS, AND OBLIGATIONS
Sec. 9.201. BUSINESS OF FOREIGN ENTITY. (a) Except as provided
by Subsection (b), 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.
(b) A foreign business trust may engage in a business or
activity permitted by this code to be transacted by a limited
liability company.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
688, Sec. 48, eff. September 1, 2007.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 9.204. RIGHT OF FOREIGN ENTITY TO PARTICIPATE IN BUSINESS
OF CERTAIN DOMESTIC ENTITIES. A vote cast or consent provided by
a foreign entity with respect to its ownership or membership
interest in a domestic entity of which the foreign entity is a
lawful owner or member, and the foreign 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 entity does
not register to transact business in this state in accordance
with this chapter, subject to all law governing a domestic
entity, including the antitrust law of this state.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 32, eff. January 1, 2006.
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;
(14) executing a division order, contract of sale, or other
instrument incidental to ownership of a nonoperating mineral
interest; or
(15) owning, without more, real or personal property in this
state.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
84, Sec. 14, eff. September 1, 2009.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
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.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.