(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.

Terms Used In Texas Business Organizations Code 402.005

  • Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
  • Business: means a trade, occupation, profession, or other commercial activity. See Texas Business Organizations Code 1.002
  • Certificate of formation: means :
    (A) the document required to be filed with the filing officer under Chapter 3 to form a filing entity; and
    (B) if appropriate, a restated certificate of formation and all amendments of an original or restated certificate of formation. See Texas Business Organizations Code 1.002
  • Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
  • Corporation: means an entity governed as a corporation under Title 2 or 7. See Texas Business Organizations Code 1.002
  • Domestic: means , with respect to an entity, that the entity is formed under this code or the entity's internal affairs are governed by this code. See Texas Business Organizations Code 1.002
  • Entity: means a domestic entity or foreign entity. See Texas Business Organizations Code 1.002
  • Filing entity: means a domestic entity that is a corporation, limited partnership, limited liability company, professional association, cooperative, or real estate investment trust. See Texas Business Organizations Code 1.002
  • Foreign: means , with respect to an entity, that the entity is formed under, and the entity's internal affairs are governed by, the laws of a jurisdiction other than this state. See Texas Business Organizations Code 1.002
  • Foreign filing entity: means a foreign entity, other than a foreign limited liability partnership, that registers or is required to register as a foreign entity under Chapter 9. See Texas Business Organizations Code 1.002
  • Secretary: means the:
    (A) individual designated as secretary of an entity under the entity's governing documents; or
    (B) officer or committee of persons authorized to perform the functions of secretary of an entity without regard to the designated name of the officer or committee. See Texas Business Organizations Code 1.002
  • Service of process: The service of writs or summonses to the appropriate party.
  • Statute: A law passed by a legislature.

(c) A domestic or foreign filing entity is not considered to have failed to comply with Subsection (a)(3) or (4) because:
(1) the certificate of formation does not state the type of entity formed;
(2) the application for registration or any amendment to the registration:
(A) does not state the entity’s type; or
(B) does not include the appointment of the secretary of state as agent for service of process, notice, or demand under the circumstances provided by Section 5.251; or
(3) a circumstance described by Section 402.0051 applies.

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