CHAPTER 402. MISCELLANEOUS AND TRANSITION PROVISIONS

State Codes and Statutes

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BUSINESS ORGANIZATIONS CODE

TITLE 8. 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registration, unless earlier withdrawn or revoked.

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;

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

(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.

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.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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