CHAPTER 402. MISCELLANEOUS AND TRANSITION PROVISIONS
BUSINESS ORGANIZATIONS CODE
TITLE 8. MISCELLANEOUS AND TRANSITION PROVISIONS
CHAPTER 402. MISCELLANEOUS AND TRANSITION PROVISIONS
Sec. 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 domestic entity that is a converted entity resulting from
a conversion that takes effect on or after the effective date of
this code;
(3) 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
(4) 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registration, unless earlier withdrawn or revoked.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, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 100, eff. January 1, 2006.
Acts 2007, 80th Leg., R.S., Ch.
688, Sec. 138, eff. September 1, 2007.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Sec. 402.003. EARLY ADOPTION OF CODE BY EXISTING DOMESTIC
ENTITY. A domestic entity formed before the effective date of
this code may voluntarily elect to adopt and become subject to
this code by:
(1) adopting the code by complying with the procedures for
approval, under prior law and its governing documents, of an
amendment to:
(A) its articles of incorporation, with respect to a corporation
or cooperative association;
(B) its regulations, with respect to a limited liability
company;
(C) its articles of association, with respect to a professional
association;
(D) its declaration of trust, with respect to a real estate
investment trust;
(E) its partnership agreement, with respect to a partnership; or
(F) its primary governing document, with respect to another type
of domestic entity;
(2) if any of its governing documents, including its certificate
of formation, do not comply with this code, complying with the
procedures, under prior law and its governing documents, to amend
the noncomplying governing documents to comply with this code,
including filing with the filing officer in accordance with
Chapter 4 a certificate of amendment to cause its certificate of
formation to comply with this code; and
(3) if the domestic entity is a filing entity, filing with the
filing officer in accordance with Chapter 4 a statement that the
filing entity is electing to adopt this code.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
688, Sec. 139, eff. September 1, 2007.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 101, eff. January 1, 2006.
Sec. 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 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, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 102, eff. January 1, 2006.
Acts 2009, 81st Leg., R.S., Ch.
84, Sec. 59, eff. September 1, 2009.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 103, eff. January 1, 2006.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 104, eff. January 1, 2006.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2005, 79th Leg., Ch.
64, Sec. 105, eff. January 1, 2006.
Sec. 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, Sec. 1, eff. Jan. 1, 2006.