VERNON'S CIVIL STATUTES
TITLE 32. CORPORATIONS
CHAPTER 9. NON-PROFIT, COOPERATIVE,
RELIGIOUS AND CHARITABLE
VERNON'S CIVIL STATUTES
TITLE 32. CORPORATIONS
CHAPTER 9. NON-PROFIT, COOPERATIVE,
RELIGIOUS AND CHARITABLE
Art. 1396-1.02. DEFINITIONS
Art. 1396-2.01. PURPOSES.
Art. 1396-2.02.
GENERAL POWERS.
Art. 1396-2.03. DEFENSE
OF ULTRA VIRES.
Art. 1396-2.04. CORPORATE
NAME
Art. 1396-2.04A. RESERVED
NAME
Art. 1396-2.05. REGISTERED
OFFICE AND REGISTERED AGENT
Art. 1396-2.06. CHANGE
OF REGISTERED OFFICE OR AGENT
Art. 1396-2.06A. CHANGE
OF ADDRESS OF REGISTERED AGENT
Art. 1396-2.07. SERVICE
OF PROCESS ON CORPORATION
Art. 1396-2.08. MEMBERS
Art. 1396-2.09. BY-LAWS
Art. 1396-2.10. MEETINGS
OF MEMBERS
Art. 1396-2.11. NOTICE
OF MEMBERS' MEETINGS
Art. 1396-2.11A. RECORD
DATE FOR DETERMINING MEMBERS ENTITLED TO NOTICE AND VOTE
Art. 1396-2.11B. VOTING
MEMBERS' LIST FOR MEETING
Art. 1396-2.12. QUORUM
OF MEMBERS
Art. 1396-2.13. VOTING
OF MEMBERS
Art. 1396-2.14. BOARD
OF DIRECTORS
Art. 1396-2.15. NUMBER,
ELECTION, CLASSIFICATION, AND REMOVAL OF DIRECTORS
Art. 1396-2.16. VACANCIES
Art. 1396-2.17. QUORUM
AND VOTING DIRECTORS
Art. 1396-2.18. COMMITTEES
Art. 1396-2.19. PLACE
AND NOTICE OF DIRECTORS' MEETINGS
Art. 1396-2.20. OFFICERS
Art. 1396-2.21. REMOVAL
OF OFFICERS
Art. 1396-2.22. OFFICER
LIABILITY
Art. 1396-2.22A. POWER
TO INDEMNIFY AND TO PURCHASE INDEMNITY INSURANCE; DUTY TO INDEMNIFY
Art. 1396-2.23. BOOKS
AND RECORDS
Art. 1396-2.23A. FINANCIAL
RECORDS AND ANNUAL REPORTS
Art. 1396-2.23B. CORPORATIONS
ASSISTING STATE AGENCIES
Art. 1396-2.24. DIVIDENDS
PROHIBITED
Art. 1396-2.25. LOANS
TO DIRECTORS PROHIBITED
Art. 1396-2.26. LIABILITY
OF DIRECTORS IN CERTAIN CASES
Art. 1396-2.27. CHARITABLE
CORPORATIONS
Art. 1396-2.28. GENERAL
STANDARDS FOR DIRECTORS
Art. 1396-2.29. DELEGATION
OF INVESTMENT AUTHORITY
Art. 1396-2.30. INTERESTED
DIRECTORS
Art. 1396-2.31. POWER
TO SERVE AS TRUSTEE
Art. 1396-3.01. INCORPORATORS
Art. 1396-3.02. ARTICLES
OF INCORPORATION
Art. 1396-3.03. FILING
OF ARTICLES OF INCORPORATION
Art. 1396-3.04. EFFECT
OF ISSUANCE OF CERTIFICATE OF INCORPORATION
Art. 1396-3.05. ORGANIZATION
MEETING
Art. 1396-4.01. RIGHT
TO AMEND ARTICLES OF INCORPORATION
Art. 1396-4.02. PROCEDURE
TO AMEND ARTICLES OF INCORPORATION
Art. 1396-4.03. ARTICLES
OF AMENDMENT
Art. 1396-4.04. FILING
OF ARTICLES OF AMENDMENT
Art. 1396-4.05. EFFECT
OF CERTIFICATE OF AMENDMENT
Art. 1396-4.06. RESTATED
ARTICLES OF INCORPORATION
Art. 1396-5.01. PROCEDURE
FOR MERGER OF DOMESTIC CORPORATIONS
Art. 1396-5.02. PROCEDURE
FOR CONSOLIDATION OF DOMESTIC CORPORATIONS
Art. 1396-5.03. APPROVAL
OF MERGER OR CONSOLIDATION OF DOMESTIC CORPORATIONS
Art. 1396-5.04. ARTICLES
OF MERGER OR CONSOLIDATION OF DOMESTIC CORPORATIONS
Art. 1396-5.05. EFFECTIVE
DATE OF MERGER OR CONSOLIDATION OF DOMESTIC CORPORATIONS
Art. 1396-5.06. EFFECT
OF MERGER OR CONSOLIDATION OF DOMESTIC CORPORATIONS
Art. 1396-5.07. MERGER
OR CONSOLIDATION OF DOMESTIC AND FOREIGN CORPORATIONS
Art. 1396-5.08. CONVEYANCE
BY CORPORATION
Art. 1396-5.09. SALE,
LEASE OR EXCHANGE OF ASSETS
Art. 1396-50.01. COOPERATIVE
ASSOCIATION ACT
Art. 1396-6.01. VOLUNTARY
DISSOLUTION
Art. 1396-6.02. APPLICATION
AND DISTRIBUTION OF ASSETS
Art. 1396-6.03. PLAN
OF DISTRIBUTION
Art. 1396-6.04. REVOCATION
OF VOLUNTARY DISSOLUTION PROCEEDINGS
Art. 1396-6.05. ARTICLE
OF DISSOLUTION
Art. 1396-6.06. FILING
OF ARTICLES OF DISSOLUTION
Art. 1396-6.07. FRAUDULENT
TERMINATION
Art. 1396-7.01. INVOLUNTARY
DISSOLUTION; REINSTATEMENT
Art. 1396-7.02. NOTIFICATION
TO ATTORNEY GENERAL, NOTICE TO CORPORATION AND OPPORTUNITY TO CURE DEFAULT
Art. 1396-7.03. VENUE
AND PROCESS
Art. 1396-7.04. APPOINTMENT
OF RECEIVER FOR SPECIFIC CORPORATE ASSETS
Art. 1396-7.05. APPOINTMENT
OF RECEIVER TO REHABILITATE CORPORATION
Art. 1396-7.06. JURISDICTION
OF COURT TO LIQUIDATE ASSETS AND AFFAIRS OF CORPORATION AND RECEIVERSHIPS THEREFOR
Art. 1396-7.07. QUALIFICATION,
POWERS, AND DUTIES OF RECEIVERS; OTHER PROVISIONS RELATING TO RECEIVERSHIPS
Art. 1396-7.08. DIRECTORS
AND MEMBERS NOT NECESSARY PARTIES DEFENDANT TO RECEIVERSHIP OR LIQUIDATION
PROCEEDINGS
Art. 1396-7.09. DECREE
OF INVOLUNTARY DISSOLUTION
Art. 1396-7.10. FILING
OF DECREE OF DISSOLUTION
Art. 1396-7.11. DEPOSIT
WITH COMPTROLLER OF AMOUNT DUE CERTAIN PERSONS
Art. 1396-7.12. LIMITED
SURVIVAL AFTER DISSOLUTION
Art. 1396-8.01. ADMISSION
OF FOREIGN CORPORATIONS
Art. 1396-8.03. CORPORATE
NAME OF FOREIGN CORPORATION
Art. 1396-8.04. APPLICATION
FOR CERTIFICATE OF AUTHORITY
Art. 1396-8.05. FILING
OF APPLICATION FOR CERTIFICATE OF AUTHORITY
Art. 1396-8.06. EFFECT
OF CERTIFICATE OF AUTHORITY
Art. 1396-8.07. REGISTERED
OFFICE AND REGISTERED AGENT OF FOREIGN CORPORATION
Art. 1396-8.08. CHANGE
OF REGISTERED OFFICE OR REGISTERED AGENT OF FOREIGN CORPORATION
Art. 1396-8.09. SERVICE
OF PROCESS ON FOREIGN CORPORATION
Art. 1396-8.12. AMENDED
CERTIFICATE OF AUTHORITY
Art. 1396-8.13. WITHDRAWAL
OR TERMINATION OF FOREIGN CORPORATION
Art. 1396-8.14. FILING
OF APPLICATION FOR WITHDRAWAL
Art. 1396-8.15. REVOCATION
OF CERTIFICATE OF AUTHORITY
Art. 1396-8.16. FILING
OF DECREE OF REVOCATION
Art. 1396-8.17. CONDUCTING
AFFAIRS WITHOUT CERTIFICATE OF AUTHORITY
Art. 1396-9.01. REPORT
OF DOMESTIC AND FOREIGN CORPORATIONS
Art. 1396-9.02. FAILURE
TO FILE REPORTS; FORFEITURE; RIGHT OF CORPORATION TO CURE DEFAULT
Art. 1396-9.03. FEES
FOR FILING DOCUMENTS AND ISSUING CERTIFICATES
Art. 1396-9.03A. PENALTY
FOR SIGNING FALSE DOCUMENT
Art. 1396-9.04. POWERS
OF SECRETARY OF STATE
Art. 1396-9.05. APPEALS
FROM SECRETARY OF STATE
Art. 1396-9.06. CERTIFICATES
AND CERTIFIED COPIES TO BE RECEIVED IN EVIDENCE
Art. 1396-9.07. FORMS
TO BE PROMULGATED BY SECRETARY OF STATE
Art. 1396-9.08. GREATER
VOTING REQUIREMENTS
Art. 1396-9.09. WAIVER
OF NOTICE
Art. 1396-9.10. ACTION
WITHOUT A MEETING BY MEMBERS, DIRECTORS OR COMMITTEES
Art. 1396-9.11. MEETINGS
BY TELEPHONE CONFERENCE OR OTHER REMOTE COMMUNICATIONS TECHNOLOGY
Art. 1396-10.01. APPLICATION
TO FOREIGN AND INTERSTATE AFFAIRS
Art. 1396-10.02. RESERVATION
OF POWER
Art. 1396-10.03. EFFECT
OF INVALIDITY OF PART OF THIS ACT
Art. 1396-10.04. TO
WHAT CORPORATIONS THIS ACT APPLIES; PROCEDURE FOR ADOPTION OF ACT BY EXISTING
CORPORATION
Art. 1396-10.05. EXTENT
TO WHICH EXISTING LAWS SHALL REMAIN APPLICABLE TO CORPORATIONS
Art. 1396-10.06. REPEAL
OF EXISTING LAWS; EXTENT AND EFFECT THEREOF
Art. 1396-10.07. DELAYED
EFFECTIVENESS OF CERTAIN FILINGS
Art. 1396-11.01. EMERGENCY
CLAUSE
Art. 1396-11.02. APPLICABILITY;
EXPIRATION
Art. 1396-70.01. TEXAS
UNIFORM UNINCORPORATED NONPROFIT ASSOCIATION ACT
Art. 1399. LODGES
Art. 1400. LODGES:
CHARTER
Art. 1401. LODGES:
TRUSTEES
Art. 1402. LODGES:
PROPERTY
Art. 1403. LODGES:
DEMISE
Art. 1404. LODGES:
LOANS
Art. 1405. LODGES:
DURATION
Art. 1406. EXISTING
LODGE
Art. 1407. LODGES:
TAX
Art. 1407a. CHURCH
BENEFIT PLANS AND CHURCH BENEFITS BOARDS
VERNON'S CIVIL STATUTES
TITLE 32. CORPORATIONS
CHAPTER 9. NON-PROFIT, COOPERATIVE,
RELIGIOUS AND CHARITABLE
Art.
1396-1.01. SHORT TITLE, CAPTIONS, PARTS, ARTICLES, SECTIONS, SUBSECTIONS AND
PARAGRAPHS.
B.
The division of this Act into Parts, Articles, Sections, Subsections, and
Paragraphs and the use of captions in connection therewith are solely for
convenience and shall have no legal effect in construing the provisions of this
Act.
C.
This Act has been organized and subdivided in the following manner:
(1)
The Act is divided into Parts, containing groups of related Articles. Parts are
numbered consecutively with cardinal numbers.
(2)
The Act is also divided into Articles, numbered consecutively with Arabic
numerals.
(3)
Articles are divided into Sections. The Sections within each Article are
numbered consecutively with capital letters.
(4)
Sections are divided into Subsections. The Subsections within each Section are
numbered consecutively with Arabic numerals enclosed in parentheses.
(5)
Subsections are divided into Paragraphs. The Paragraphs within each Subsection
are numbered consecutively with lower case letters enclosed in parentheses.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 1.01.
Art. 1396-1.02. DEFINITIONS
(1)
"Corporation" or "domestic corporation" means a corporation
not for profit subject to the provisions of this Act, except a foreign
corporation.
(2)
"Foreign corporation" means a corporation not for profit organized
under laws other than the laws of this State.
(3)
"Non-Profit Corporation" is the equivalent of "not for profit
corporation" and means a corporation no part of the income of which is
distributable to its members, directors, or officers.
(4)
"Articles of incorporation" means the original or restated articles
of incorporation and all amendments thereto.
(5)
"By-laws" means the code or codes of rules adopted for the regulation
or management of the corporation, irrespective of the name or names by which
such rules are designated.
(6)
"Member" means one having membership rights in a corporation in
accordance with the provisions of its articles of incorporation or its by-laws.
(7)
"Board of Directors" means the group of persons vested with the
management of the affairs of the corporation, irrespective of the name by which
such group is designated.
(8)
"President" means that officer designated as "president" in
the articles of incorporation or by-laws of a corporation, or that officer
authorized, in the articles of incorporation, the by-laws, or otherwise, to
perform the functions of the principal executive officer, irrespective of the
name by which he may be designated, or that committee of persons authorized, in
the articles of incorporation, the by-laws, or otherwise, to perform the
functions of the principal executive officer.
(9)
"Vice-president" means that officer designated as
"vice-president" in the articles of incorporation or the by-laws of a
corporation, or that officer or committee of persons authorized, in the
articles of incorporation, the by-laws, or otherwise, to perform the duties of
the president upon the death, absence, or resignation of the president or upon
his inability to perform the duties of his office, irrespective of the name by
which he, or they, may be designated.
(10)
"Secretary" means that officer designated as "secretary" in
the articles of incorporation or the by-laws of a corporation, or that officer
or committee of persons authorized, in the articles of incorporation, the
by-laws, or otherwise, to perform the functions of secretary, irrespective of
the name by which he, or they, may be designated.
(11)
"Treasurer" means that officer designated as "treasurer" in
the articles of incorporation or the by-laws of a corporation, or that officer
or committee of persons authorized, in the articles of incorporation, the
by-laws, or otherwise, to perform the functions of a treasurer, irrespective of
the name by which he, or they, may be designated.
(12)
"Insolvency" means inability of a corporation to pay its debts as
they become due in the usual course of its affairs.
(13)
"Verified" means subscribed and sworn to under the sanction of an
oath, or such affirmation as is by law equivalent to an oath, made before an
officer authorized to administer oaths.
(14)
"Director" means a member of the board of directors of a corporation
organized under this Act.
(15)
"Ordinary care" means the care that an ordinarily prudent person in a
similar position would exercise under similar circumstances.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 1.02. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 1, eff. Jan. 1,
1994.
Art. 1396-2.01. PURPOSES.
(1)
Charitable corporations may be formed for the purpose of operating a Dental
Health Service Corporation which service corporation will manage and coordinate
the relationship between the contracting dentist, who will perform the dental
services, and the patient who will receive such services where such patient is
a member of a group which has contracted with the Dental Health Service Corporation
to provide dental care to members of that group. An application for a charter
under this Section shall have attached as exhibits (1) an affidavit by the
applicants that not less than thirty percent (30%) of the dentists legally
engaged in the practice of dentistry in this state together with their names
and addresses have signed contracts to perform the required dental services for
a period of not less than one (1) year, after incorporation, and (2) a
certification by the Texas State Board of Dental Examiners that the applicant
incorporators are reputable citizens of the State of Texas and are of good
moral character and that the corporation sought to be formed will be in the
best interest of the public health. A corporation formed hereunder shall have not
less than twelve (12) directors, nine (9) of whom shall be dentists licensed by
the Texas State Board of Dental Examiners to practice dentistry in this state
and be actively engaged in the practice of dentistry in this state. A
corporation formed hereunder shall maintain not less than thirty percent (30%)
of the number of dentists actually engaged in the practice of dentistry in this
state as participating or contracting dentists, and shall file with the Texas
State Board of Dental Examiners each September the names and addresses of all
contracting or participating dentists. A corporation formed hereunder shall not
(1) prevent any patient from selecting the licensed dentist of his choice to
render dental services to him, (2) deny any licensed dentist the right to
participate as a contracting dentist to perform the dental services contracted
for by the patient, (3) discriminate among patients or licensed dentists
regarding payment or reimbursement for the cost of performing dental services
provided the dentist is licensed to perform the dental service, or (4)
authorize any person to regulate, interfere, or intervene in any manner in the
diagnosis or treatment rendered by a licensed dentist to his patient. A
corporation formed hereunder may require the attending dentist to provide a
narrative oral or written description of the dental services rendered for the
purpose of determining benefits or providing proof of treatment. Diagnostic
aids used in the course of treatment may be requested by the corporation, but
may not be required for any purpose.
B.
This Act shall not apply to any corporation, nor may any corporation be
organized under this Act or obtain authority to conduct its affairs in this
State under this Act:
(1)
If any one or more of its purposes for the conduct of its affairs in this State
is expressly forbidden by any law of this State.
(2)
If any one or more of its purposes for the conduct of its affairs in this State
is to engage in any activity which cannot lawfully be engaged in without first
obtaining a license under the authority of the laws of this State to engage in
such activity and such license cannot lawfully be granted to a corporation,
except as provided by Subsection C.
(3)
If any one or more of its purposes for the conduct of its affairs in this State
is to organize Group Hospital Service, Rural Credit Unions, Agricultural and
Livestock Pools, Mutual Loan Corporations, Co-operative Credit Associations,
Farmers' Co-operative Societies, Co-operative Marketing Act Corporations, Rural
Electric Co-operative Corporations, Telephone Co-operative Corporations, or
fraternal organizations operating under the lodge system and heretofore or
hereafter incorporated under Articles 1399 through 1407, both inclusive, of
Revised Civil Statutes of Texas, 1925.
(4)
If any one or more of its purposes for the conduct of its affairs in this State
is to operate a bank under the banking laws of this State or to operate an
insurance company of any type or character that operates under the insurance
laws of this State.
C.
Doctors of medicine and osteopathy licensed by the Texas State Board of Medical
Examiners and podiatrists licensed by the Texas State Board of Podiatric
Medical Examiners may organize a non-profit corporation under this Act that is
jointly owned, managed, and controlled by those practitioners to perform a
professional service that falls within the scope of practice of those
practitioners and consists of:
(1)
carrying out research in the public interest in medical science, medical
economics, public health, sociology, or a related field;
(2)
supporting medical education in medical schools through grants or scholarships;
(3)
developing the capabilities of individuals or institutions studying, teaching,
or practicing medicine, including podiatric medicine;
(4)
delivering health care to the public; or
(5)
instructing the public regarding medical science, public health, hygiene, or a
related matter.
D.
When doctors of medicine, osteopathy, and podiatry organize a non-profit
corporation that is jointly owned by those practitioners, the authority of each
of the practitioners is limited by the scope of practice of the respective
practitioners and none can exercise control over the other's clinical authority
granted by their respective licenses, either through agreements, articles of
incorporation, bylaws, directives, financial incentives, or other arrangements
that would assert control over treatment decisions made by the practitioner.
The Texas State Board of Medical Examiners and the Texas State Board of Podiatric
Medical Examiners continue to exercise regulatory authority over their
respective licenses.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.01. Amended by Acts 1961, 57th Leg., p. 959, ch. 418, Sec. 1; Acts
1983, 68th Leg., p. 142, ch. 36, Sec. 1, eff. Aug. 29, 1983; Acts 1989, 71st
Leg., ch. 1039, Sec. 4.07, eff. Sept. 1, 1989; Acts 1999, 76th Leg., ch. 813,
Sec. 2, eff. Aug. 30, 1999; Acts 2003, 78th Leg., ch. 534, Sec. 1, eff. June
20, 2003.
Art. 1396-2.02. GENERAL POWERS.
(1)
To have perpetual succession by its corporate name, unless a limited period of
duration is stated in its articles of incorporation. Notwithstanding the
articles of incorporation, the period of duration for any corporation
incorporated before August 10, 1959, is perpetual if all fees and franchise
taxes have been paid as provided by law.
(2)
To sue and be sued, complain and defend, in its corporate name.
(3)
To have a corporate seal which may be altered at pleasure, and to use the same
by causing it, or a facsimile thereof, to be impressed on, affixed to, or in
any manner reproduced upon, instruments of any nature required to be executed
by its proper officers.
(4)
To purchase, receive, lease, or otherwise acquire, own, hold, improve, use, or
otherwise deal in and with, real or personal property, or any interest therein,
wherever situated, as the purposes of the corporation shall require, or as shall
be donated to it.
(5)
To sell, convey, mortgage, pledge, lease, exchange, transfer, and otherwise
dispose of all or any part of its property and assets.
(6)
To lend money to and otherwise assist its employees and officers, but not its
directors, if the loan or assistance may reasonably be expected to benefit,
directly or indirectly, the corporation providing the assistance. Loans made to
officers must be:
(a)
made for the purpose of financing the principal residence of the officer; or
(b)
made during the first year of that officer's employment, in which case the
original principal amount may not exceed 100 percent of the officer's annual
salary; or
(c)
made in any subsequent year, in which case the original principal amount may
not exceed 50 percent of the officer's annual salary.
(7)
To purchase, receive, subscribe for, or otherwise acquire, own, hold, vote,
use, employ, mortgage, lend, pledge, sell or otherwise dispose of, and
otherwise use and deal in and with, shares or other interests in, or obligations
of, other domestic or foreign corporations, whether for profit or not for
profit, associations, partnerships, or individuals, or direct or indirect
obligations of the United States or of any other government, state, territory,
government district, or municipality, or of any instrumentality thereof.
(8)
To make contracts and incur liabilities, borrow money at such rates of interest
as the corporation may determine, issue its notes, bonds, and other
obligations, and secure any of its obligations by mortgage or pledge of all or
any of its property, franchises, and income.
(9)
To lend money for its corporate purposes, invest and reinvest its funds, and
take and hold real and personal property as security for the payment of funds
so loaned or invested.
(10)
To conduct its affairs, carry on its operations, and have officers and exercise
the powers granted by this Act in any state, territory, district, or possession
of the United States, or any foreign country.
(11)
To elect or appoint officers and agents of the corporation for such period of
time as the corporation may determine and define their duties and fix their
compensation.
(12)
To make and alter by-laws, not inconsistent with its articles of incorporation
or with the laws of this State, for the administration and regulation of the
affairs of the corporation.
(13)
To make donations for the public welfare or for charitable, scientific, or
educational purposes and in time of war to make donations in aid of war
activities.
(14)
To cease its corporate activities and terminate its existence by voluntary
dissolution.
(15)
Whether included in the foregoing or not, to have and exercise all powers
necessary or appropriate to effect any or all of the purposes for which the
corporation is organized.
(16)
Any religious, charitable, educational, or eleemosynary institution organized
under the laws of this State may acquire, own, hold, mortgage, and dispose of
and invest its funds in real and personal property for the use and benefit and
under the discretion of, and in trust for any convention, conference or
association organized under the laws of this State or another state with which
it is affiliated, or which elects its board of directors, or which controls it,
in furtherance of the purposes of the member institution.
(17)
To pay pensions and establish pension plans and pension trusts for all of, or
class, or classes of its officer and employees, or its officers or its
employees.
(18)
To deliver money to a scholarship fund for rural students.
B.
Nothing in this Article grants any authority to officers or directors of a
corporation for the exercise of any of the foregoing powers, inconsistent with
limitations on any of the same which may be expressly set forth in this Act or
in the articles of incorporation or by-laws or in any other laws of this State.
Authority of officers and directors to act beyond the scope of the purpose or
purposes of a corporation is not granted by any provisions of this Article.
C.
Nothing in this Article shall be deemed to authorize any action in violation of
the Anti-Trust Laws of this State or of any of the provisions of Chapter 4 of
Title 32 of Revised Civil Statutes of Texas, 1925, as now existing or hereafter
amended.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.02. Amended by Acts 1977, 65th Leg., p. 837, ch. 313, Sec. 1, eff.
Aug. 29, 1977; Acts 1979, 66th Leg., p. 174, ch. 96, Sec. 1, eff. May 2, 1979;
Acts 1989, 71st Leg., ch. 1199, Sec. 1, eff. Aug. 28, 1989; Acts 1997, 75th
Leg., ch. 904, Sec. 5, eff. Sept. 1, 1997.
Art. 1396-2.03. DEFENSE OF ULTRA
VIRES.
B.
No act of a corporation and no conveyance or transfer of real or personal property
to or by a corporation shall be invalid by reason of the fact that such act,
conveyance or transfer was beyond the scope of the purpose or purposes of the
corporation as expressed in its articles of incorporation or by reason of
limitations on authority of its officers and directors to exercise any
statutory power of the corporation, as such limitations are expressed in the
articles of incorporation, but that such act, conveyance or transfer was, or
is, beyond the scope of the purpose or purposes of the corporation as expressed
in its articles of incorporation or inconsistent with any such expressed
limitations of authority, may be asserted:
(1)
In a proceeding by a member against the corporation to enjoin the doing of any
act or acts or the transfer of real or personal property by or to the
corporation. If the unauthorized act or transfer sought to be enjoined is
being, or is to be, performed or made pursuant to any contract to which the
corporation is a party, the court may, if all of the parties to the contract
are parties to the proceedings and if it deems the same to be equitable, set
aside and enjoin the performance of such contract, and in so doing may allow to
the corporation or to the other parties to the contract, as the case may be,
compensation for the loss or damage sustained by either of them which may
result from the action of the court in setting aside and enjoining the
performance of such contract, but anticipated profits to be derived from the
performance of the contract shall not be awarded by the court as part of the
loss or damage sustained.
(2)
In a proceeding by the corporation, whether acting directly or through a
receiver, trustee, or other legal representative, or through members in a
representative suit, against the incumbent or former officers or directors of
the corporation for exceeding their authority.
(3)
In a proceeding by the Attorney General, as provided in this Act, to dissolve
the corporation, or in a proceeding by the Attorney General to enjoin the
corporation from performing unauthorized acts, or to enforce divestment of real
property acquired or held contrary to the laws of this State.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.03.
Art. 1396-2.04. CORPORATE NAME
(1)
It shall not contain any word or phrase which indicates or implies that it is
organized for any purpose other than one or more of the purposes contained in
its articles of incorporation.
(2)
It shall not be the same as, or deceptively similar to, the name of any
domestic corporation, whether for profit or not for profit, existing under the
laws of this State, or the name of any foreign corporation, whether for profit
or not for profit, authorized to transact business or conduct affairs in this
State, or a name the exclusive right to which is, at the time, reserved in the
manner provided by the Texas Business Corporation Act, or the name of a
corporation which has in effect a registration of its corporate name as
provided in the Texas Business Corporation Act; provided that a name may be
similar if written consent is obtained from the existing corporation having the
name deemed to be similar, or the person, or corporation, for whom the name
deemed to be similar is reserved or registered in the office of the Secretary
of State.
(3)
It shall not contain the word "lottery."
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.04. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 6, Sec. 11A(b),
eff. Nov. 5, 1991.
Art. 1396-2.04A. RESERVED NAME
(1)
a person intending to organize a corporation under this Act;
(2)
a domestic corporation intending to change its name;
(3)
a foreign corporation intending to apply for a certificate of authority to
conduct affairs in this State;
(4)
a foreign corporation authorized to conduct affairs in this State and intending
to change its name; or
(5)
a person intending to organize a foreign corporation and intending to have that
corporation apply for a certificate of authority to conduct affairs in this
State.
B.
An application for name reservation or transfer of the exclusive use of a
specified corporate name is subject to the procedures and period prescribed by
Article 2.06, Texas Business Corporation Act.
Added by Acts 1993, 73rd Leg., ch.
733, Sec. 2, eff. Jan. 1, 1994.
Art. 1396-2.05. REGISTERED OFFICE
AND REGISTERED AGENT
(1)
A registered office which may be, but need not be, the same as its principal
office.
(2)
A registered agent, which agent may be an individual resident in this State whose
business office is identical with such registered office, or a domestic
corporation, whether for profit or not for profit, or a foreign corporation,
whether for profit or not for profit, authorized to transact business or to
conduct its affairs in this State which has a business office identical with
such registered office.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.05. Amended by Acts 1979, 66th Leg., p. 213, ch. 120, Sec. 1, eff.
May 9, 1979; Acts 1993, 73rd Leg., ch. 733, Sec. 3, eff. Jan. 1, 1994.
Art. 1396-2.06. CHANGE OF REGISTERED
OFFICE OR AGENT
(1)
The name of the corporation.
(2)
The post-office address of its then registered office.
(3)
If the post-office address of its registered office is to be changed, the
post-office address to which the registered office is to be changed.
(4)
The name of its then registered agent.
(5)
If its registered agent is to be changed, the name of its successor registered
agent.
(6)
That the post-office address of its registered office and the post-office
address of the business office of its registered agent, as changed, will be
identical.
(7)
That such change was authorized by its Board of Directors or by an officer of
the corporation so authorized by the Board of Directors, or if the management
of the corporation is vested in its members pursuant to Article 2.14C of this
Act, by the members.
B.
The statement required by this Article shall be signed by the corporation by an
officer. The original and a copy of the statement shall be delivered to the
Secretary of State. If the Secretary of State finds that such statement
conforms to the provisions of this Act, he shall, when all fees have been paid
as prescribed by law:
(1)
Endorse on the original and the copy the word "Filed" and the month,
day, and year of the filing thereof.
(2)
File the original in his office.
(3)
Return the copy to the corporation or its representative.
C.
Upon such filing, the change of address of the registered office, or the
appointment of a new registered agent, or both, as the case may be, shall
become effective.
D.
Any registered agent of a corporation may resign
(1)
by giving written notice to the corporation at its last known address
(2)
and by giving written notice, in triplicate (the original and two copies of the
notice), to the Secretary of State within ten days after mailing or delivery of
said notice to the corporation. Such notice shall include the last known
address of the corporation and shall include the statement that written notice
of resignation has been given to the corporation and the date thereof. Upon
compliance with the requirements as to written notice, the appointment of such
agent shall terminate upon the expiration of thirty (30) days after receipt of
such notice by the Secretary of State.
If
the Secretary of State finds that such written notice conforms to the
provisions of this Act, he shall:
(1)
Endorse on the original and both copies the word "filed" and the
month, day and year of the filing thereof.
(2)
File the original in his office.
(3)
Return one copy to such resigning registered agent.
(4)
Return one copy to the corporation at the last known address of the corporation
as shown in such written notice.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.06. Amended by Acts 1969, 61st Leg., p. 2477, ch. 834, Sec. 1, 2;
Acts 1979, 66th Leg., p. 213, ch. 120, Sec. 2, eff. May 9, 1979; Acts 1987,
70th Leg., ch. 93, Sec. 36, eff. Aug. 31, 1987.
Art. 1396-2.06A. CHANGE OF ADDRESS
OF REGISTERED AGENT
(1)
the name of the corporation represented by the registered agent;
(2)
the street address at which the registered agent has maintained the registered
office for that corporation;
(3)
the new street address at which the registered agent will maintain the
registered office for that corporation; and
(4)
a statement that notice of the change has been given to the corporation in
writing at least ten (10) days before the date of the filing.
B.
The statement required by this article shall be signed by the registered agent
or, if the agent is a corporation, by an officer of the corporate agent on its
behalf. If the registered agent is simultaneously filing statements for more
than one corporation, each statement may contain facsimile signatures in the
execution. The original and one copy of the statement shall be delivered to the
Secretary of State. If the Secretary of State finds that the statement conforms
to this Act, the Secretary of State shall:
(1)
endorse on the original and the copy the word "Filed," and the month,
day, and year of the filing;
(2)
file the original in the Secretary of State's office; and
(3)
return the copy to the registered agent.
C.
The registered office of the corporation named in the statement shall be
changed to the new street address of the registered agent on the filing of the
statement by the Secretary of State.
Added by Acts 1993, 73rd Leg., ch.
733, Sec. 4, eff. Jan. 1, 1994.
Art. 1396-2.07. SERVICE OF PROCESS
ON CORPORATION
B. Whenever
a corporation shall fail to appoint or maintain a registered agent in this
State, or whenever its registered agent cannot with reasonable diligence be
found at the registered office, then the Secretary of State shall be an agent
of such corporation upon whom any such process, notice, or demand may be
served. Service on the Secretary of State of any process, notice, or
demand shall be made by delivering to and leaving with him, or with the Deputy
Secretary of State, or with any clerk having charge of the corporation
department of his office, duplicate copies of such process, notice, or
demand. In the event any such process, notice, or demand is served on
the Secretary of State, he shall immediately cause one of the copies thereof to
be forwarded by registered mail, addressed to the corporation at its registered
office. Any service so had on the Secretary of State shall be
returnable in not less than thirty (30) days.
C.
The Secretary of State shall keep a record of all processes, notices, and
demands served upon him under this Article, and shall record therein the time
of such service and his action with reference thereto.
D.
Service of process, notice, or demand required or permitted by law to be served
by a political subdivision of this state or by a person, including another
political subdivision or an attorney, acting on behalf of a political
subdivision in connection with the collection of a delinquent ad valorem tax
may be served on a corporation whose corporate privileges are forfeited under
Section 171.251, Tax Code, or is involuntarily dissolved under Article 7.01 of
this Act by delivering the process, notice, or demand to any officer or director
of the corporation, as listed in the most recent records of the secretary of
state. If the officers or directors of the corporation are unknown or cannot be
found, service on the corporation may be made in the same manner as service is
made on unknown shareholders under law. Notwithstanding any disability or
reinstatement of a corporation, service of process under this section is
sufficient for a judgment against the corporation or a judgment in rem against
any property to which the corporation holds title.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.07. Amended by Acts 1999, 76th Leg., ch. 1481, Sec. 39, eff. Sept.
1, 1999.
Amended by:
Acts
2005, 79th Leg., Ch. 41, Sec. 5, eff. September 1,
2005.
Art. 1396-2.08. MEMBERS
B.
If the corporation has one or more classes of members, the designation of such
class or classes, the manner of election or appointment, and the qualifications
and rights of the members of each class shall be set forth in the articles of
incorporation or by-laws.
C.
If the corporation is to have no members, that fact shall be set forth in the
articles of incorporation.
D.
A corporation may issue certificates, or cards, or other instruments evidencing
membership rights, voting rights or ownership rights as may be authorized in
the articles of incorporation or in the by-laws.
E.
The members of a non-profit corporation shall not be personally liable for the
debts, liabilities, or obligations of the corporation.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.08. Amended by Acts 1961, 57th Leg., p. 653, ch. 302, Sec. 1.
Art. 1396-2.09. BY-LAWS
B.
A corporation's board of directors may amend or repeal the corporation's
by-laws, or adopt new by-laws, unless:
(1)
the articles of incorporation or this Act reserves the power exclusively to the
members in whole or in part;
(2)
the management of the corporation is vested in its members; or
(3)
the members in amending, repealing, or adopting a particular by-law expressly
provide that the board of directors may not amend or repeal that by-law.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.09. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 5, eff. Jan. 1,
1994.
Art. 1396-2.10. MEETINGS OF MEMBERS
(1)
Meetings of members shall be held at such place, either within or without this
State, as may be provided in the by-laws. In the absence of any such provision,
all meetings shall be held at the registered office of the corporation in this
State.
(2)
An annual meeting of the members shall be held at such times as may be provided
in the by-laws, except that where the by-laws of a corporation provide for more
than one regular meeting of members each year, an annual meeting shall not be
required, and directors may be elected at such meetings as the by-laws may
provide. Failure to hold the annual meeting at the designated time shall not
work a dissolution of the corporation. In the event the board of directors
fails to call the annual meeting at the designated time, any member may make
demand that such meeting be held within a reasonable time, such demand to be
made in writing by registered mail directed to any officer of the corporation.
If the annual meeting of members is not called within sixty (60) days following
such demand, any member may compel the holding of such annual meeting by legal
action directed against said board, and all of the extraordinary writs of
common law and of courts of equity shall be available to such member to compel
the holding of such annual meeting. Each and every member is hereby declared to
have a justiciable interest sufficient to enable him to institute and prosecute
such legal proceedings.
(3)
Special meetings of the members may be called by the president, the board of
directors, by members having not less than one-tenth (1/10) of the votes
entitled to be cast at such meeting, or such other officers or persons as may
be provided in the articles of incorporation or by-laws.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.10.
Art. 1396-2.11. NOTICE OF MEMBERS'
MEETINGS
B.
In the case of a corporation which is a church, notice of meetings of members
will be deemed sufficient if made by oral announcement at a regularly scheduled
worship service prior to such meeting, or as otherwise provided in its articles
of incorporation or its by-laws.
C.
The by-laws may provide that no notice of annual or regular meetings shall be
required.
D.
If its by-laws so provide, a corporation having more than one thousand (1,000)
members at the time a meeting is scheduled or called may give notice of such
meeting by publication in any newspaper of general circulation in the community
in which the principal office of such corporation is located.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.11. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 6, eff. Jan. 1,
1994.
Art. 1396-2.11A. RECORD DATE FOR
DETERMINING MEMBERS ENTITLED TO NOTICE AND VOTE
B.
The by-laws of a corporation may fix or provide the manner of fixing a date as
the record date for determining the members entitled to vote at a members'
meeting. If the by-laws do not fix and do not provide for fixing a record date,
the board may fix a future date as the record date. If a record date is not
fixed, members on the date of the meeting who are otherwise eligible to vote
are entitled to vote at the meeting.
C.
The by-laws may fix or provide the manner for fixing a date as the record date
for the purpose of determining the members entitled to exercise any rights
regarding any other lawful action. If the by-laws do not fix and do not provide
for fixing a record date, the board of directors may fix in advance a record
date. If a record date is not fixed, members at the close of business on the
date on which the board of directors adopts the resolution relating to the
record date, or the 60th day before the date of the other action, whichever is
later, are entitled to exercise those rights.
D.
A record date fixed under this section may not be more than sixty (60) days
before the date of the meeting or action that requires the determination of the
members.
E.
A determination of members entitled to notice of or to vote at a members'
meeting is effective for any adjournment of the meeting unless the board fixes
a new date for determining the right to notice or the right to vote. The board
must fix a new date for determining the right to notice or the right to vote if
the meeting is adjourned to a date more than ninety (90) days after the record
date for determining members entitled to notice of the original meeting.
Added by Acts 1993, 73rd Leg., ch.
733, Sec. 7, eff. Jan. 1, 1994.
Art. 1396-2.11B. VOTING MEMBERS'
LIST FOR MEETING
B.
Not later than two (2) business days after the date notice is given of a
meeting for which a list was prepared, as provided by Section A of this
article, and continuing through the meeting, the list of voting members must be
available for inspection by any member entitled to vote at the meeting for the
purpose of communication with other members concerning the meeting at the
corporation's principal office or at a reasonable place identified in the
meeting notice in the city where the meeting will be held. A voting member or
voting member's agent or attorney is entitled on written demand to inspect and,
subject to the limitations of Section B, Article 2.23, of this Act to copy the
list at a reasonable time and at the member's expense during the period it is
available for inspection.
C.
The corporation shall make the list of voting members available at the meeting,
and any voting member or voting member's agent or attorney is entitled to
inspect the list at any time during the meeting or any adjournment.
Added by Acts 1993, 73rd Leg., ch.
733, Sec. 7, eff. Jan. 1, 1994.
Art. 1396-2.12. QUORUM OF MEMBERS
B.
In the absence of an express provision to the contrary in the articles of
incorporation or the by-laws, a church incorporated prior to the effective date
of this Act shall be deemed to have provided in its articles of incorporation
or its by-laws that members present at a meeting, notice for which shall have
been duly given, shall constitute a quorum.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.12.
Art. 1396-2.13. VOTING OF MEMBERS
B.
A member may vote in person or, unless the articles of incorporation or the
by-laws otherwise provide, may vote by proxy executed in writing by the member
or by his duly authorized attorney-in-fact. No proxy shall be valid after
eleven (11) months from the date of its execution, unless otherwise provided in
the proxy. Each proxy shall be revocable unless expressly provided therein to
be irrevocable, and in no event shall it remain irrevocable for more than
eleven (11) months. Where directors or officers are to be elected by members,
the by-laws may provide that such elections may be conducted by mail, by
facsimile transmission, or by any combination of the two.
C.
At each election for directors every member entitled to vote at such election
shall have the right to vote, in person or by proxy, for as many persons as
there are directors to be elected and for whose election he has a right to
vote, or, if expressly authorized by the articles of incorporation, to cumulate
his vote by giving one candidate as many votes as the number of such directors
multiplied by his vote shall equal, or by distributing such votes on the same
principle among any number of such candidates. Any member who intends to
cumulate his votes as herein authorized shall give written notice of such
intention to the secretary of the corporation on or before the day preceding the
election at which such member intends to cumulate his votes.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.13. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 8, eff. Jan. 1,
1994.
Art. 1396-2.14. BOARD OF DIRECTORS
B.
Boards of directors of religious, charitable, educational, or eleemosynary
institutions may be affiliated with, elected and controlled by a convention,
conference or association organized under the laws of this State or another
state, whether incorporated or unincorporated, whose membership is composed of
representatives, delegates, or messengers from any church or other religious
association.
C.
The articles of incorporation of a corporation may vest the management of the
affairs of the corporation in its members. If the corporation has a board of
directors, it may limit the authority of the board of directors to whatever
extent as may be set forth in the articles of incorporation or by-laws. Except
for a church organized and operating under a congregational system, was
incorporated before January 1, 1994, and has the management of its affairs
vested in its members, a corporation shall be deemed to have vested the
management of the affairs of the corporation in its board of directors in the
absence of an express provision to the contrary in the articles of
incorporation or the by-laws.
D.
The board of directors may be designated by any name appropriate to the
customs, usages, or tenets of the corporation.
E.
The board of directors of a corporation may be elected (in whole or in part) by
one or more associations or corporations, organized under the laws of this
State or another state if (1) the articles of incorporation or the by-laws of
the former corporation so provide, and (2) the former corporation has no
members with voting rights.
F.
The articles of incorporation or the by-laws may provide that any one or more
persons may be ex-officio members of the board of directors. A person
designated as an ex-officio member of the board of directors is entitled to
notice of and to attend meetings of the board of directors. The ex-officio
member is not entitled to vote unless otherwise provided in the articles of
incorporation or the by-laws. An ex-officio member of the board of directors
who is not entitled to vote does not have the duties or liabilities of a
director as provided in this Act.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.14. Amended by Acts 1967, 60th Leg., p. 1716, ch. 656, Sec. 1, eff.
June 17, 1967; Acts 1993, 73rd Leg., ch. 733, Sec. 9, eff. Jan. 1, 1994.
Art. 1396-2.15. NUMBER, ELECTION,
CLASSIFICATION, AND REMOVAL OF DIRECTORS
B.
The directors constituting the initial board of directors shall be named in the
articles of incorporation and shall hold office until the first annual election
of directors or for such other period as may be specified in the articles of
incorporation or the by-laws. Thereafter, directors shall be elected,
appointed, or designated in the manner and for the terms provided in the
articles of incorporation or the by-laws. If the method of election,
designation, or appointment is not provided in the articles of incorporation or
by-laws, the directors, other than the initial directors, shall be elected by
the board of directors. In the absence of a provision in the articles of
incorporation or the by-laws fixing the term of office, a director shall hold
office until the next annual election of directors and until his successor
shall have been elected, appointed, or designated and qualified.
C.
Directors may be divided into classes and the terms of office of the several
classes need not be uniform. Unless removed in accordance with the provisions
of the articles of incorporation or the by-laws, each director shall hold
office for the term for which he is elected, appointed, or designated and until
his successor shall have been elected, appointed, or designated and qualified.
D.
A director may be removed from office pursuant to any procedure therefor
provided in the articles of incorporation or by-laws. In the absence of a
provision providing for removal, a director may be removed from office, with or
without cause, by the persons entitled to elect, designate, or appoint the
director. If the director was elected to office, removal requires an
affirmative vote equal to the vote necessary to elect the director.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.15. Amended by Acts 1989, 71st Leg., ch. 801, Sec. 45, eff. Aug.
28, 1989; Acts 1993, 73rd Leg., ch. 733, Sec. 10, eff. Jan. 1, 1994.
Art. 1396-2.16. VACANCIES
B.
Any directorship to be filled by reason of an increase in the number of
directors shall be filled by election at an annual meeting or at a special
meeting of members called for that purpose. If a corporation has no members, or
no members having the right to vote thereon, such directorship shall be filled
as provided in the articles of incorporation or the by-laws.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.16.
Art. 1396-2.17. QUORUM AND VOTING
DIRECTORS
(1)
A majority of the number of directors fixed by the bylaws, or in the absence of
a bylaw fixing the number of directors, a majority of the number of directors
stated in the articles of incorporation, or
(2)
Any number, not less than three, fixed as a quorum by the articles of
incorporation or the bylaws.
B.
Directors present by proxy may not be counted toward a quorum.
C.
The act of the majority of the directors present in person or by proxy at a
meeting at which a quorum is present shall be the act of the board of
directors, unless the act of a greater number is required by the articles of
incorporation or the bylaws.
D.
A director may vote in person or (if the articles of incorporation or the
bylaws so provide) by proxy executed in writing by the director. No proxy shall
be valid after three months from the date of its execution. Each proxy shall be
revocable unless expressly provided therein to be irrevocable, and unless
otherwise made irrevocable by law.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.17. Amended by Acts 1967, 60th Leg., p. 1716, ch. 656, Sec. 2, eff.
June 17, 1967.
Art. 1396-2.18. COMMITTEES
B.
Other committees not having and exercising the authority of the board of directors
in the management of the corporation may be designated and appointed by a
resolution adopted by a majority of the directors at a meeting at which a
quorum is present, or by the president thereunto authorized by a like
resolution of the board of directors or by the articles of incorporation or by
the by-laws. Membership on such committees may, but need not be, limited to
directors.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.18. Amended by Acts 1967, 60th Leg., p. 1716, ch. 656, Sec. 3, eff.
June 17, 1967.
Art. 1396-2.19. PLACE AND NOTICE OF
DIRECTORS' MEETINGS
B.
Regular meetings of the board of directors may be held with or without notice
as prescribed in the by-laws. Special meetings of the board of directors shall
be held upon such notice as is prescribed in the by-laws. Attendance of a
director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting, unless required by
the by-laws.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.19.
Art. 1396-2.20. OFFICERS
B.
The officers of a corporation may be designated by such other or additional
titles as may be provided in the articles of incorporation or the by-laws.
C.
In the case of a corporation which is a church, it shall not be necessary that
there be officers as provided herein, but such duties and responsibilities may
be vested in the board of directors or other designated body in any manner
provided for in the articles of incorporation or the by-laws.
D.
In the discharge of a duty imposed or power conferred on an officer of a
corporation, the officer may in good faith and with ordinary care rely on
information, opinions, reports, or statements, including financial statements
and other financial data, concerning the corporation or another person, that
were prepared or presented by:
(1)
one or more other officers or employees of the corporation, including members
of the board of directors;
(2)
legal counsel, public accountants, or other persons as to matters the officer
reasonably believes are within the person's professional or expert competence;
or
(3)
in the case of religious corporations, religious authorities and ministers,
priests, rabbis, or other persons whose position or duties in the religious
organization the officer believes justify reliance and confidence and whom the
officer believes to be reliable and competent in the matters presented.
E.
An officer is not relying in good faith as required by Section D of this
article if the officer has knowledge concerning the matter in question that
makes reliance otherwise permitted by Section D of this article unwarranted.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.20. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 11, eff. Jan. 1,
1994.
Art. 1396-2.21. REMOVAL OF OFFICERS
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.21.
Art. 1396-2.22. OFFICER LIABILITY
(1)
in good faith;
(2)
with ordinary care; and
(3)
in a manner the officer reasonably believes to be in the best interest of the
corporation.
(b)
This article shall not affect the liability of the corporation for an act or
omission of the officer.
Added by Acts 2001, 77th Leg., ch.
727, Sec. 1, eff. Sept. 1, 2001.
Art. 1396-2.22A. POWER TO INDEMNIFY
AND TO PURCHASE INDEMNITY INSURANCE; DUTY TO INDEMNIFY
(1)
"Corporation" includes any domestic or foreign predecessor entity of
the corporation in a merger, consolidation, or other transaction in which the
liabilities of the predecessor are transferred to the corporation by operation
of law and in any other transaction in which the corporation assumes the
liabilities of the predecessor but does not specifically exclude liabilities
that are the subject matter of this article.
(2)
"Director" means any person who is or was a director of the
corporation and any person who, while a director of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise.
(3)
"Expenses" includes court costs and attorneys' fees.
(4)
"Official capacity" means:
(a)
when used with respect to a director, the office of director in the
corporation; and
(b)
when used with respect to a person other than a director, the elective or
appointive office in the corporation held by the officer or the employment or
agency relationship undertaken by the employee or agent in behalf of the
corporation; but
(c)
in both Paragraphs (a) and (b) does not include service for any other foreign
or domestic corporation or any partnership, joint venture, sole proprietorship,
trust, employee benefit plan, or other enterprise.
(5)
"Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit, or proceeding, and any
inquiry or investigation that could lead to such an action, suit, or
proceeding.
B.
A corporation may indemnify a person who was, is, or is threatened to be made a
named defendant or respondent in a proceeding because the person is or was a
director only if it is determined in accordance with Section F of this article
that the person:
(1)
conducted himself in good faith;
(2)
reasonably believed:
(a)
in the case of conduct in his official capacity as a director of the
corporation, that his conduct was in the corporation's best interests; and
(b)
in all other cases, that his conduct was at least not opposed to the
corporation's best interests; and
(3)
in the case of any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful.
C.
Except to the extent permitted by Section E of this article, a director may not
be indemnified under Section B of this article in respect of a proceeding:
(1)
in which the person is found liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted from an action
taken in the person's official capacity; or
(2)
in which the person is found liable to the corporation.
D.
The termination of a proceeding by judgment, order, settlement, or conviction
or on a plea of nolo contendere or its equivalent is not of itself
determinative that the person did not meet the requirements set forth in
Section B of this article. A person shall be deemed to have been found liable
in respect of any claim, issue or matter only after the person shall have been
so adjudged by a court of competent jurisdiction after exhaustion of all
appeals therefrom.
E.
A person may be indemnified under Section B of this article against judgments,
penalties (including excise and similar taxes), fines, settlements, and
reasonable expenses actually incurred by the person in connection with the
proceeding; but if the person is found liable to the corporation or is found
liable on the basis that personal benefit was improperly received by the
person, the indemnification (1) is limited to reasonable expenses actually
incurred by the person in connection with the proceeding, and (2) shall not be
made in respect of any proceeding in which the person shall have been found
liable for willful or intentional misconduct in the performance of his duty to
the corporation.
F.
A determination of indemnification under Section B of this article must be
made:
(1)
by a majority vote of a quorum consisting of directors who at the time of the
vote are not named defendants or respondents in the proceeding;
(2)
if such a quorum cannot be obtained, by a majority vote of a committee of the
board of directors, designated to act in the matter by a majority vote of all
directors, consisting solely of two or more directors who at the time of the
vote are not named defendants or respondents in the proceeding;
(3)
by special legal counsel selected by the board of directors or a committee of
the board by vote as set forth in Subsection (1) or (2) of this section, or, if
such a quorum cannot be obtained and such a committee cannot be established, by
a majority vote of all directors; or
(4)
by the members in a vote that excludes the vote of directors who are named
defendants or respondents in the proceeding.
G.
Authorization of indemnification and determination as to reasonableness of
expenses must be made in the same manner as the determination that
indemnification is permissible, except that if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses must be
made in the manner specified by Subsection (3) of Section F of this article for
the selection of special legal counsel. A provision contained in the articles
of incorporation, the bylaws, a resolution of members or directors, or an
agreement that makes mandatory the indemnification permitted under Section B of
this article shall be deemed to constitute authorization of indemnification in
the manner required by this section even though such provision may not have
been adopted or authorized in the same manner as the determination that
indemnification is permissible.
H.
A corporation shall indemnify a director against reasonable expenses incurred
by him in connection with a proceeding in which he is a named defendant or
respondent because he is or was a director if he has been wholly successful, on
the merits or otherwise, in the defense of the proceeding.
I.
If, in a suit for the indemnification required by Section H of this article, a
court of competent jurisdiction determines that the director is entitled to
indemnification under that section, the court shall order indemnification and
shall award to the director the expenses incurred in securing the
indemnification.
J.
If, upon application of a director, a court of competent jurisdiction
determines, after giving any notice the court considers necessary, that the
director is fairly and reasonably entitled to indemnification in view of all
the relevant circumstances, whether or not he has met the requirements set
forth in Section B of this article or has been found liable in the
circumstances described by Section C of this article, the court may order the
indemnification that the court determines is proper and equitable; but if the
person is found liable to the corporation or is found liable on the basis that
personal benefit was improperly received by the person, the indemnification shall
be limited to reasonable expenses actually incurred by the person in connection
with the proceeding.
K.
Reasonable expenses incurred by a director who was, is, or is threatened to be
made a named defendant or respondent in a proceeding may be paid or reimbursed
by the corporation, in advance of the final disposition of the proceeding and
without the determination specified in Section F of this article or the
authorization or determination specified in Section G of this article, after
the corporation receives a written affirmation by the director of his good
faith belief that he has met the standard of conduct necessary for
indemnification under this article and a written undertaking by or on behalf of
the director to repay the amount paid or reimbursed if it is ultimately
determined that he has not met that standard or if it is ultimately determined
that indemnification of the director against expenses incurred by him in
connection with that proceeding is prohibited by Section E of this article. A
provision contained in the articles of incorporation, the bylaws, a resolution
of members or directors, or an agreement that makes mandatory the payment or
reimbursement permitted under this section shall be deemed to constitute
authorization of that payment or reimbursement.
L.
The written undertaking required by Section K of this article must be an
unlimited general obligation of the director but need not be secured. It may be
accepted without reference to financial ability to make repayment.
M.
A provision for a corporation to indemnify or to advance expenses to a director
who was, is, or is threatened to be made a named defendant or respondent in a
proceeding, whether contained in the articles of incorporation, the bylaws, a
resolution of members or directors, an agreement, or otherwise, except in
accordance with Section R of this article, is valid only to the extent it is
consistent with this article as limited by the articles of incorporation, if
such a limitation exists.
N.
Notwithstanding any other provision of this article, a corporation may pay or
reimburse expenses incurred by a director in connection with his appearance as
a witness or other participation in a proceeding at a time when he is not a
named defendant or respondent in the proceeding.
O.
An officer of the corporation shall be indemnified as, and to the same extent,
provided by Sections H, I, and J of this article for a director and is entitled
to seek indemnification under those sections to the same extent as a director.
A corporation may indemnify and advance expenses to an officer, employee, or
agent of the corporation to the same extent that it may indemnify and advance
expenses to directors under this article.
P.
A corporation may indemnify and advance expenses to a person who is not or was
not an officer, employee, or agent of the corporation but who is or was serving
at the request of the corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan, or other enterprise to the same extent that it
may indemnify and advance expenses to directors under this article.
Q.
A corporation may indemnify and advance expenses to an officer, employee,
agent, or person identified in Section P of this article and who is not a
director to such further extent, consistent with law, as may be provided by its
articles of incorporation, bylaws, general or specific action of its board of directors,
or contract or as permitted or required by common law.
R.
(1) A corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee, or agent of the corporation or who
is or was serving at the request of the corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent, or similar functionary
of another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise against any
liability asserted against him and incurred by him in such a capacity or
arising out of his status as such a person, whether or not the corporation
would have the power to indemnify him against that liability under this
article.
(2)(a)
In addition to the powers described in Subsection (1), a corporation may
purchase, maintain, or enter into other arrangements on behalf of any person
who is or was a director, officer, or trustee of the corporation against any
liability asserted against him and incurred by him in such capacity or arising
out of his status as such a person, whether or not the corporation would have
the power to indemnify him against that liability under this article.
(b)
If the other arrangement is with a person or entity that is not regularly
engaged in the business of providing insurance coverage, the arrangement may
provide for payment of a liability with respect to which the corporation would
not have the power to indemnify a person only if coverage for that liability
has been approved by the corporation's members, if the corporation has members.
(c)
Without limiting the power of the corporation to procure or maintain any kind
of other arrangement, a corporation, for the benefit of persons described in
Subsection (2)(a) may:
(i)
create a trust fund;
(ii)
establish any form of self-insurance;
(iii)
secure its indemnity obligation by grant of a security interest or other lien
on the assets of the corporation; or
(iv)
establish a letter of credit, guaranty, or surety arrangement.
(d)
For the limited purposes of Subsection (2) of this section only, any liability
indemnification arrangement, other than coverage through an insurance carrier,
is not considered to be the business of insurance under the Insurance Code,
including the Texas Property and Casualty Insurance Guaranty Act (Article
21.28-C, Vernon's Texas Civil Statutes), or any other law of this state.
(3)
The insurance may be procured or maintained with an insurer, or the other
arrangement may be procured, maintained, or established within the corporation
or with any insurer or other person considered appropriate by the board of
directors, regardless of whether all or part of the stock or other securities
of the insurer or other person are owned in whole or part by the corporation.
In the absence of fraud, the judgment of the board of directors as to the terms
and conditions of the insurance or other arrangement and the identity of the
insurer or other person participating in an arrangement is conclusive, and the
insurance or arrangement is not voidable and does not subject the directors
approving the insurance or arrangement to liability, on any ground, regardless
of whether directors participating in the approval are beneficiaries of the
insurance or arrangement.
S.
Any indemnification of or advance of expenses to a director in accordance with
this article shall be reported in writing to the members of the corporation
with or before the notice or waiver of notice of the next meeting of members or
with or before the next submission to members of a consent to action without a
meeting pursuant to Section A, Article 1396-9.10 of this Act and, in any case,
within the 12-month period immediately following the date of the
indemnification or advance.
T.
For purposes of this article, the corporation is deemed to have requested a
director to serve an employee benefit plan whenever the performance by him of
his duties to the corporation also imposes duties on or otherwise involves
services by him to the plan or participants or beneficiaries of the plan.
Excise taxes assessed on a director with respect to an employee benefit plan
pursuant to applicable law are deemed fines. Action taken or omitted by him
with respect to an employee benefit plan in the performance of his duties for a
purpose reasonably believed by him to be in the interest of the participants
and beneficiaries of the plan is deemed to be for a purpose which is not
opposed to the best interests of the corporation.
U.
The articles of incorporation of a corporation may restrict the circumstances
under which the corporation is required or permitted to indemnify a person
under Section H, I, J, O, P, or Q of this article.
Added by Acts 1985, 69th Leg., ch.
128, Sec. 30, eff. May 20, 1985. Amended by Acts 1989, 71st Leg., ch. 801, Sec.
46, eff. Aug. 28, 1989; Acts 1989, 71st Leg., ch. 1199, Sec. 2, eff. Aug. 28,
1989.
Art. 1396-2.23. BOOKS AND RECORDS
B.
A member of a corporation, on written demand stating the purpose of the demand,
has the right to examine and copy, in person or by agent, accountant, or
attorney, at any reasonable time, for any proper purpose, the books and records
of the corporation relevant to that purpose, at the expense of the member.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.23. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 12, eff. Jan. 1,
1994.
Art. 1396-2.23A. FINANCIAL RECORDS
AND ANNUAL REPORTS
B.
Based on these records, the board of directors shall annually prepare or
approve a report of the financial activity of the corporation for the preceding
year. The report must conform to accounting standards as promulgated by the
American Institute of Certified Public Accountants and must include a statement
of support, revenue, and expenses and changes in fund balances, a statement of
functional expenses, and balance sheets for all funds.
C.
All records, books, and annual reports of the financial activity of the
corporation shall be kept at the registered office or principal office of the
corporation in this state for at least three years after the closing of each
fiscal year and shall be available to the public for inspection and copying
there during normal business hours. The corporation may charge for the
reasonable expense of preparing a copy of a record or report.
D.
A corporation that fails to maintain financial records, prepare an annual
report, or make a financial record or annual report available to the public in
the manner prescribed by this article is guilty of a Class B misdemeanor.
E.
This article does not apply to:
(1)
a corporation that solicits funds only from its members;
(2)
a corporation which does not intend to solicit and receive and does not
actually raise or receive contributions from sources other than its own
membership in excess of $10,000 during a fiscal year;
(3)
a career school or college that has received a certificate of approval from the
Texas Workforce Commission, a public institution of higher education and
foundations chartered for the benefit of such institutions or any component
part thereof, a private or independent institution of higher education as
defined by Section 61.003, Education Code, a postsecondary educational
institution with a certificate of authority to grant a degree issued by the
Texas Higher Education Coordinating Board, or an elementary or secondary
school;
(4)
religious institutions which shall be limited to churches, ecclesiastical or
denominational organizations, or other established physical places for worship
at which religious services are the primary activity and such activities are
regularly conducted;
(5)
a trade association or professional society whose income is principally derived
from membership dues and assessments, sales, or services;
(6)
any insurer licensed and regulated by the Texas Department of Insurance;
(7)
an alumni association of a public or private institution of higher education in
this state, provided that such association is recognized and acknowledged by
the institution as its official alumni association.
Added by Acts 1977, 65th Leg., p.
1947, ch. 773, Sec. 1, eff. Jan. 1, 1978. Amended by Acts 1993, 73rd Leg., ch.
733, Sec. 13, eff. Jan. 1, 1994.
Sec. E amended by Acts 2003, 78th
Leg., ch. 238, Sec. 42, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 364, Sec.
2.31, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 817, Sec. 8.45, eff. Sept.
1, 2003.
Art. 1396-2.23B. CORPORATIONS
ASSISTING STATE AGENCIES
(1)
a board, commission, department, office, or other entity that is in the
executive branch of state government and that was created by the constitution
or a statute of the State, including an institution of higher education as
defined by Section 61.003, Texas Education Code, as amended;
(2)
the legislature or a legislative agency; or
(3)
the Supreme Court, the Court of Criminal Appeals, a court of appeals, or the
State Bar of Texas or another state judicial agency.
B.
The books and records of a corporation except a bona fide alumni association
are subject to audit at the discretion of the State Auditor if both of the
following obtain:
(1)
the corporation's charter specifically dedicates the corporation's activities
to the benefit of a particular agency of state government; and
(2)
a board member, officer, or employee of the same agency of state government sits
on the board of directors of the corporation in other than an ex officio,
nonvoting, advisory capacity.
C.
If the corporation's charter specifically dedicates the corporation's
activities to the benefit of a particular agency of state government but the conditions
in Section B of this Article do not obtain, before the 90th day after the last
day of the corporation's fiscal year, the corporation shall file with the
Secretary of State a report for the preceding fiscal year consisting of a copy
of a report as described by Section B of Article 2.23A of this Act (Article
1396-2.23A, Vernon's Texas Civil Statutes).
Added by Acts 1983, 68th Leg., p.
4600, ch. 779, Sec. 1, eff. Aug. 29, 1983.
Art. 1396-2.24. DIVIDENDS PROHIBITED
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.24.
Art. 1396-2.25. LOANS TO DIRECTORS
PROHIBITED
B.
The directors of a corporation who vote for or assent to the making of a loan
to a director of the corporation, and any officer or officers participating in
the making of such loan, shall be jointly and severally liable to the
corporation for the amount of such loan until repayment thereof.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.25. Amended by Acts 1989, 71st Leg., ch. 1199, Sec. 3, eff. Aug.
28, 1989.
Art. 1396-2.26. LIABILITY OF
DIRECTORS IN CERTAIN CASES
B.
A director of a corporation who is present at a meeting of its board of
directors at which action was taken on such corporate matter shall be presumed
to have assented to such action unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
secretary of the corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a director who voted in favor of the
action.
C.
A director shall not be liable under Section A of this Article if, in voting
for or assenting to a distribution, the director:
(1)
relied in good faith and with ordinary care on information, opinions, reports,
or statements, including financial statements and other financial data, concerning
the corporation or another person that were prepared or presented by:
(a)
one or more officers or employees of the corporation;
(b)
legal counsel, public accountants, or other persons as to matters the director
reasonably believes are within the person's professional or expert competence;
or
(c)
a committee of the board of directors of which the director is not a member;
(2)
acting in good faith and with ordinary care, considered the assets of the
corporation to be at least that of their book value; or
(3)
in determining whether the corporation made adequate provision for payment,
satisfaction, or discharge of all of its liabilities and obligations as
provided in Article 6.03 of this Act, relied in good faith and with ordinary
care on financial statements of, or other information concerning, a person who
was or became contractually obligated to pay, satisfy, or discharge some or all
of those liabilities or obligations.
D.
A director shall not be liable under this Article if, in the exercise of
ordinary care, he acted in good faith and in reliance upon the written opinion
of an attorney for the corporation.
E.
A director against whom a claim shall be asserted under this Article and who
shall be held liable thereon shall be entitled to contribution from persons who
accepted or received such distribution knowing such distribution to have been
made in violation of this Article, in proportion to the amounts received by
them respectively.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 2.26. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 14, eff. Jan. 1,
1994.
Art. 1396-2.27. CHARITABLE
CORPORATIONS
B.
The articles of incorporation of any corporation described in Section A may be
amended to expressly exclude the application of Section A, and in the event of
such amendment, Section A shall not apply to such corporation.
C.
All references in this Article to "the Code" are to the Internal
Revenue Code of 1986, and all references in this Article to specific sections
of the Code include corresponding provisions of any subsequent Federal tax
laws.
Added by Acts 1971, 62nd Leg., p.
889, ch. 119, Sec. 1, eff. May 10, 1971. Amended by Acts 1993, 73rd Leg., ch.
733, Sec. 15, eff. Jan. 1, 1994.
Art. 1396-2.28. GENERAL STANDARDS
FOR DIRECTORS
B.
In the discharge of any duty imposed or power conferred on a director,
including as a member of a committee, the director may in good faith rely on
information, opinions, reports, or statements, including financial statements
and other financial data, concerning the corporation or another person that
were prepared or presented by:
(1)
one or more officers or employees of the corporation;
(2)
legal counsel, public accountants, or other persons as to matters the director
reasonably believes are within the person's professional or expert competence;
(3)
a committee of the board of directors of which the director is not a member; or
(4)
in the case of religious corporations, religious authorities and ministers,
priests, rabbis, or other persons whose position or duties in the religious
organization the director believes justify reliance and confidence and whom the
director believes to be reliable and competent in the matters presented.
C.
A director is not relying in good faith, within the meaning of this article, if
the director has knowledge concerning a matter in question that makes reliance
otherwise permitted by this article unwarranted.
D.
A director is not liable to the corporation, any member, or any other person
for any action taken or not taken as a director if the director acted in
compliance with this article. A person seeking to establish liability of a
director must prove that the director has not acted:
(1)
in good faith;
(2)
with ordinary care; and
(3)
in a manner the director reasonably believes to be in the best interest of the
corporation.
E.
A director is not deemed to have the duties of a trustee of a trust with
respect to the corporation or with respect to any property held or administered
by the corporation, including property that may be subject to restrictions
imposed by the donor or transferor of the property.
Added by Acts 1993, 73rd Leg., ch.
733, Sec. 16, eff. Jan. 1, 1994.
Art. 1396-2.29. DELEGATION OF
INVESTMENT AUTHORITY
(1)
from time to time contract with investment counsel, trust companies, banks,
investment advisors, or investment managers; and
(2)
confer on those advisors full power and authority to:
(a)
purchase or otherwise acquire stocks, bonds, securities, and other investments
on behalf of the corporation; and
(b)
sell, transfer, or otherwise dispose of any of the corporation's assets and
properties at a time and for a consideration that the advisor deems
appropriate.
B.
The board of directors also may:
(1)
confer on an advisor described by Section A of this article other powers
regarding the corporation's investments as the board of directors deems
appropriate; and
(2)
authorize the advisor to hold title to any of the corporation's assets and
properties in its own name for the benefit of the corporation or in the name of
a nominee for the benefit of the corporation.
C.
The board of directors has no liability regarding any action taken or omitted
by an advisor engaged under this article if the board of directors acted in
good faith and with ordinary care in selecting the advisor. The board of
directors may remove or replace the advisor, with or without cause, if they
deem that action appropriate or necessary.
Added by Acts 1993, 73rd Leg., ch.
733, Sec. 16, eff. Jan. 1, 1994.
Art. 1396-2.30. INTERESTED DIRECTORS
(1)
the material facts as to the relationship or interest and as to the contract or
transaction are disclosed or are known to the board of directors, the
committee, or the members, and the board, committee, or members in good faith
and with ordinary care authorizes the contract or transaction by the affirmative
vote of a majority of the disinterested directors or members, even though the
disinterested directors or members are less than a quorum;
(2)
the material facts as to the relationship or interest and as to the contract or
transaction are disclosed or are known to the members entitled to vote on the
contract or transaction, and the contract or transaction is specifically
approved in good faith and with ordinary care by vote of the disinterested
members; or
(3)
the contract or transaction is fair to the corporation when it is authorized,
approved, or ratified by the board of directors, a committee of the board, or
the members.
B.
Common or interested directors or members may be counted in determining the
presence of a quorum at a meeting of the board of directors, of a committee, or
of the members that authorizes the contract or transaction.
Added by Acts 1993, 73rd Leg., ch.
733, Sec. 16, eff. Jan. 1, 1994.
Art. 1396-2.31. POWER TO SERVE AS
TRUSTEE
(1)
of which the corporation is a beneficiary; or
(2)
benefiting another organization described by one of those sections of the Internal
Revenue Code of 1986, or a corresponding provision of a subsequent federal tax
law, or listed by the Internal Revenue Service in the Cumulative List of
Organizations Described in Section 170(c) of the Internal Revenue Code of 1986,
I.R.S. Publication 78.
B.
Any corporation (or person or entity assisting such corporation) described in
this article shall have immunity from suit (including both a defense to
liability and the right not to bear the cost, burden, and risk of discovery and
trial) as to any claim alleging that the corporation's role as trustee of a
trust described in this article constitutes engaging in the trust business in a
manner requiring a state charter as defined in Section 181.002(a)(9), Finance
Code. An interlocutory appeal may be taken if a court denies or otherwise fails
to grant a motion for summary judgment that is based on an assertion of the
immunity provided in this subsection.
Added by Acts 1995, 74th Leg., ch.
914, Sec. 21, eff. June 16, 1995. Amended by Acts 1997, 75th Leg., ch. 769,
Sec. 9, eff. June 17, 1997; Acts 1999, 76th Leg., ch. 344, Sec. 8.001, eff. May
29, 1999; Acts 1999, 76th Leg., ch. 1073, Sec. 1, eff. June 18, 1999; Acts
2001, 77th Leg., ch. 1420, Sec. 6.030, eff. Sept. 1, 2001.
Art. 1396-3.01. INCORPORATORS
B.
Any religious society, charitable, benevolent, literary, or social association,
or church may incorporate under this Act with the consent of a majority of its
members, who shall authorize the incorporators to execute the articles of
incorporation.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 3.01. Amended by Acts 1979, 66th Leg., p. 214, ch. 120, Sec. 3, eff.
May 9, 1979; Acts 1987, 70th Leg., ch. 93, Sec. 37, eff. Aug. 31, 1987.
Art. 1396-3.02. ARTICLES OF
INCORPORATION
(1)
The name of the corporation.
(2)
A statement that the corporation is a non-profit corporation.
(3)
The period of duration, which may be perpetual.
(4)
The purpose or purposes for which the corporation is organized.
(5)
If the corporation is to have no members, a statement to that effect.
(6)
If management of the affairs of the corporation is to be vested in its members,
a statement to that effect.
(7)
Any provision, not inconsistent with law, including any provision which under
this Act is required or permitted to be set forth in the by-laws, which the
incorporators elect to set forth in the articles of incorporation for the
regulation of the internal affairs of the corporation.
(8)
The street address of its initial registered office and the name of its initial
registered agent at such street address.
(9)
The number of directors constituting the initial board of directors, and the
names and addresses of the persons who are to serve as the initial directors
unless the management of the corporation is vested in its members, in which
event a statement to that effect shall be set forth.
(10)
The name and street or post office address of each incorporator.
(11)
If the corporation is to be authorized on its dissolution to distribute its
assets in a manner other than as provided by Article 6.02(3) of this Act, a
statement describing the manner of distribution of the corporation's assets.
B.
Provided that charters or articles of incorporation of corporations existing on
the effective date of this Act which do not contain one or more of the
requirements listed in the foregoing Section need not be amended for the
purpose of meeting such requirements. Any subsequent amendment or restatement
of the articles of incorporation of such corporation shall include such
requirements, except that it shall not be necessary, in such amended or
restated articles, to include the information required in Subsections (8), (9),
and (10) of Section A.
C.
It shall not be necessary to set forth in the articles of incorporation any of
the corporate powers enumerated in this Act.
D.
Unless the articles of incorporation provide that a change in the number of
directors shall be made only by amendment to the articles of incorporation, a
change in the number of directors made by amendment to the by-laws shall be
controlling. In all other cases, whenever a provision of the articles of
incorporation is inconsistent with a by-law, the provision of the articles of
incorporation shall be controlling.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 3.02. Amended by Acts 1965, 59th Leg., p. 1294, ch. 597, Sec. 1, eff.
Aug. 30, 1965; Acts 1993, 73rd Leg., ch. 733, Sec. 17, eff. Jan. 1, 1994.
Art. 1396-3.03. FILING OF ARTICLES
OF INCORPORATION
(1)
Endorse on the original and the copy the word "Filed", and the month,
day, and year of the filing thereof.
(2)
File the original in his office.
(3)
Issue a certificate of incorporation to which he shall affix the copy.
B.
The certificate of incorporation, together with the copy of the articles of
incorporation affixed thereto by the Secretary of State shall be delivered to
the incorporators or their representatives.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 3.03. Amended by Acts 1979, 66th Leg., p. 214, ch. 120, Sec. 4, eff.
May 9, 1979.
Art. 1396-3.04. EFFECT OF ISSUANCE
OF CERTIFICATE OF INCORPORATION
Acts 1959, 56th Leg., p. 286, ch.
162, art. 3.04.
Art. 1396-3.05. ORGANIZATION MEETING
B.
A first meeting of the members may be held at the call of the directors, or a
majority of them, upon at least three (3) days' notice, for such purposes as
shall be stated in the notice of the meeting.
C.
If the management of a corporation is vested in its members, the organization
meeting shall be held by the members upon the call of any of the incorporators.
The incorporators calling the meeting shall (a) give at least three (3) days'
notice by mail to each member stating the time and place of the meeting, or
shall (b) make an oral announcement of the time and place of meeting at a
regularly scheduled worship service prior to such meeting if the corporation is
a church, or shall (c) give such notice of the meeting as may be provided for
in the articles of incorporation.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 3.05. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 18, eff. Jan. 1,
1994.
Art. 1396-4.01. RIGHT TO AMEND
ARTICLES OF INCORPORATION
Acts 1959, 56th Leg., p. 286, ch.
162, art. 4.01.
Art. 1396-4.02. PROCEDURE TO AMEND
ARTICLES OF INCORPORATION
(1)
Except as provided in Section A(4) of this article, where there are members
having voting rights, the board of directors shall adopt a resolution setting
forth the proposed amendment and directing that it be submitted to a vote at a
meeting of members having voting rights, which may be either an annual or a
special meeting. Written or printed notice setting forth the proposed amendment
or a summary of the changes to be effected thereby shall be given to each
member entitled to vote at such meeting within the time and in the manner
provided in this Act for the giving of notice of meetings of members. The
proposed amendment shall be adopted upon receiving at least two-thirds of the
votes which members present at such meeting in person or by proxy are entitled to
cast, unless any class of members is entitled to vote as a class thereon by the
terms of the articles of incorporation or of the by-laws, in which event the
proposed amendment shall not be adopted unless it also receives at least
two-thirds of the votes which the members of each such class who are present at
such meeting in person or by proxy are entitled to cast.
(2)
Where there are no members, no members having voting rights, or in the case of
an amendment under Section A(4) of this article, an amendment shall be adopted
at a meeting of the board of directors upon receiving the vote of a majority of
the directors in office.
(3)
Where the management of the affairs of the corporation is vested in the members
pursuant to Article 2.14C of this Act, the proposed amendment shall be
submitted to a vote at a meeting of members which may be an annual, a regular,
or a special meeting. Except as otherwise provided in the articles of
incorporation or the by-laws, notice setting forth the proposed amendment or a
summary of the changes to be effected thereby shall be given to the members
within the time and in the manner provided in this Act for the giving of notice
of meetings of members. The proposed amendment shall be adopted upon receiving
at least two-thirds of the votes of members present at such meeting.
(4)
Unless the articles of incorporation provide otherwise, the board of directors
of a corporation with members having voting rights may adopt one or more of the
following amendments to the articles of incorporation without member approval:
(a)
extend the duration of the corporation if it was incorporated when limited
duration was required by law;
(b)
delete the names and addresses of the initial directors;
(c)
delete the name and address of the initial registered agent or registered
office, if a statement of change is on file with the Secretary of State; or
(d)
change the corporate name by substituting the word "corporation,"
"incorporated," "company," "limited," or the
abbreviation "corp.," "inc.," "co.," "ltd.,"
for a similar word or abbreviation in the name, or by adding, deleting, or
changing a geographical attribution to the name.
B.
Any number of amendments may be submitted and voted upon at any one meeting.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 4.02. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 19, eff. Jan. 1,
1994.
Art. 1396-4.03. ARTICLES OF
AMENDMENT
(1)
The name of the corporation.
(2)
If the amendment alters any provision of the original or amended articles of
incorporation, an identification by reference or description of the altered
provision and a statement of its text as it is amended to read. If the
amendment is an addition to the original or amended articles of incorporation,
a statement of that fact and the full text of each provision added.
(3)
Where there are members having voting rights, (1) a statement setting forth the
date of the meeting of members at which the amendment was adopted, that a
quorum was present at such meeting, and that such amendment received at least
two-thirds of the votes which members present at such meeting in person or by
proxy were entitled to cast, as well as, in the case of any class entitled to
vote as a class thereon by the terms of the articles of incorporation or of the
by-laws, at least two-thirds of the votes which members of any such class who
were present at such meeting in person or by proxy were entitled to cast, or
(2) a statement that such amendment was adopted by a consent in writing signed
by all members entitled to vote with respect thereto.
(4)
Where there are no members, or no members having voting rights, a statement of
such fact, the date of the meeting of the board of directors at which the
amendment was adopted, and a statement of the fact that such amendment received
the vote of a majority of the directors in office.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 4.03. Amended by Acts 1979, 66th Leg., p. 214, ch. 120, Sec. 5, eff.
May 9, 1979; Acts 1987, 70th Leg., ch. 93, Sec. 38, eff. Aug. 31, 1987.
Art. 1396-4.04. FILING OF ARTICLES
OF AMENDMENT
(1)
Endorse on the original and the copy the word "Filed", and the month,
day, and year of the filing thereof.
(2)
File the original in his office.
(3)
Issue a certificate of amendment to which he shall affix the copy.
B.
The certificate of amendment, together with the copy of the articles of amendment
affixed thereto by the Secretary of State, shall be delivered to the
corporation or its representative.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 4.04. Amended by Acts 1979, 66th Leg., p. 215, ch. 120, Sec. 6, eff.
May 9, 1979.
Art. 1396-4.05. EFFECT OF
CERTIFICATE OF AMENDMENT
B.
No amendment shall affect any existing cause of action in favor of or against
such corporation, or any pending suit to which such corporation shall be a
party, or the existing rights of persons other than members; and, in the event
the corporate name shall be changed by amendment, no suit brought by or against
such corporation under its former name shall abate for that reason.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 4.05.
Art. 1396-4.06. RESTATED ARTICLES OF
INCORPORATION
(1)
The entire text of the articles of incorporation as amended or supplemented by
all certificates of amendment previously issued by the Secretary of State; or
(2)
The entire text of the articles of incorporation as amended or supplemented by
all certificates of amendment previously issued by the Secretary of State, and
as further amended by such restated articles of incorporation.
B.
If the restated articles of incorporation restate the entire articles of
incorporation as amended and supplemented by all certificates of amendment
previously issued by the Secretary of State, without making any further
amendment thereof, the introductory paragraph shall contain a statement that
the instrument accurately copies the articles of incorporation and all
amendments thereto that are in effect to date and that the instrument contains
no change in the provisions thereof, provided that the number of directors then
constituting the board of directors and the names and addresses of the persons
then serving as directors may be inserted in lieu of similar information
concerning the initial board of directors, and the name and address of each
incorporator may be omitted; and provided further that, if the management of a
church is vested in its members pursuant to Article 2.14C of this Act and if,
under that Article, original articles of incorporation are not required to contain
a statement to that effect, any restatement of the articles of incorporation
shall contain a statement to that effect.
C.
If the restated articles of incorporation restate the entire articles of
incorporation as amended and supplemented by all certificates of amendment
previously issued by the Secretary of State, and as further amended by such
restated articles of incorporation, the instrument containing such articles
shall:
(1)
Set forth, for any amendment made by such restated articles of incorporation, a
statement that each such amendment has been effected in conformity with the
provisions of this Act, and shall further set forth the statements required by
this act to be contained in articles of amendment, provided that the full text
of such amendments need not be set forth except in the restated articles of
incorporation as so amended.
(2)
Contain a statement that the instrument accurately copies the articles of
incorporation and all amendments thereto that are in effect to date and as
further amended by such restated articles of incorporation and that the
instrument contains no other change in any provision thereof; provided that the
number of directors then constituting the board of directors and the names and
addresses of the persons then serving as directors may be inserted in lieu of
similar information concerning the initial board of directors, and the names
and addresses of each incorporator may be omitted; and provided further that,
if the management of a church is vested in its members pursuant to Article
2.14C of this Act, and if, under that Article, original articles of
incorporation are not required to contain a statement to that effect, any
restatement of the articles of incorporation shall contain a statement to that
effect.
(3)
Restate the text of the entire articles of incorporation as amended and
supplemented by all certificates of amendment previously issued by the
Secretary of State and as further amended by the restated articles of
incorporation.
D.
Such restated articles of incorporation shall be signed on behalf of the
corporation by an officer. The original and a copy of the restated articles of
incorporation shall be delivered to the Secretary of State. If the Secretary of
State finds that the restated articles of incorporation conform to law, he
shall, when the appropriate filing fee is paid as required by law:
(1)
Endorse on the original and the copy the word "Filed", and the month,
day, and year of the filing thereof.
(2)
File the original in his office.
(3)
Issue a restated certificate of incorporation to which he shall affix the copy.
E.
The restated certificate of incorporation, together with the copy of the
restated articles of incorporation affixed thereto by the Secretary of State,
shall be delivered to the corporation or its representative.
F.
Upon the issuance of the restated certificate of incorporation by the Secretary
of State, the original articles of incorporation and all amendments thereto
shall be superseded and the restated articles of incorporation shall be deemed
to be articles of incorporation of the corporation.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 4.06. Amended by Acts 1979, 66th Leg., p. 215, ch. 120, Sec. 7, eff.
May 9, 1979; Acts 1981, 67th Leg., p. 832, ch. 297, Sec. 2, eff. Aug. 31, 1981;
Acts 1987, 70th Leg., ch. 93, Sec. 39, eff. Aug. 31, 1987; Acts 1993, 73rd
Leg., ch. 733, Sec. 20, eff. Jan. 1, 1994.
Art. 1396-5.01. PROCEDURE FOR MERGER
OF DOMESTIC CORPORATIONS
B.
Each corporation shall adopt a plan of merger setting forth:
(1)
The name of the corporation proposing to merge.
(2)
The name of the corporation into which they propose to merge, which is
hereinafter designated as the surviving corporation.
(3)
The terms and conditions of the proposed merger.
(4)
A statement of any changes in the articles of incorporation of the surviving
corporation to be affected by such merger.
(5)
Such other provisions with respect to the proposed merger as are deemed
necessary or desirable.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 5.01.
Art. 1396-5.02. PROCEDURE FOR
CONSOLIDATION OF DOMESTIC CORPORATIONS
B.
Each corporation shall adopt a plan of consolidation setting forth:
(1)
The names of the corporations proposing to consolidate.
(2)
The name of the new corporation into which they propose to consolidate, which
is hereinafter designated as the new corporation.
(3)
The terms and conditions of the proposed consolidation.
(4)
With respect to the new corporation, all of the statements required to be set
forth in articles of incorporation for corporations organized under this Act.
(5)
Such other provisions with respect to the proposed consolidation as are deemed
necessary or desirable.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 5.02.
Art. 1396-5.03. APPROVAL OF MERGER
OR CONSOLIDATION OF DOMESTIC CORPORATIONS
(1)
Where the members of any merging or consolidating corporation have voting
rights, the board of directors of such corporations shall adopt a resolution
approving the proposed plan and directing that it be submitted to a vote at the
meeting of members having voting rights, which may be either an annual or a
special meeting. Written or printed notice setting forth the proposed plan or a
summary thereof shall be given to each member entitled to vote at such meeting
within the time and in the manner provided in this Act for the giving of notice
of meetings of members. The proposed plan shall be adopted upon receiving at least
two-thirds of the votes which members present at such meeting in person or by
proxy are entitled to cast, unless any class of members is entitled to vote as
a class thereon by the terms of the articles of incorporation or of the
by-laws, in which event as to such corporations the proposed plan shall not be
adopted unless it also receives at least two-thirds of the votes which members
of each such class who are present at such meeting in person or by proxy are
entitled to cast.
(2)
Where any merging or consolidating corporation has no members, or no members
having voting rights, a plan of merger or consolidation shall be adopted at a
meeting of the board of directors of such corporation upon receiving the vote
of a majority of the directors in office.
(3)
Where the management of the affairs of any merging or consolidating corporation
is vested in its members pursuant to Article 2.14C of this Act, the proposed
plan shall be submitted to a vote at a meeting of the members, which may be an
annual, a regular, or a special meeting. Except as otherwise provided in the
articles of incorporation or the by-laws, notice setting forth the proposed
plan or a summary thereof shall be given to the members within the time and in
the manner provided in this Act for the giving of notice of meetings of
members. The proposed plan shall be adopted upon receiving at least two-thirds
of the votes of the members present at such meeting.
B.
After such approval, and at any time prior to the filing of the articles of
merger or consolidation, the merger or consolidation may be abandoned pursuant
to provisions therefor, if any, set forth in the plan of merger or
consolidation.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 5.03.
Art. 1396-5.04. ARTICLES OF MERGER
OR CONSOLIDATION OF DOMESTIC CORPORATIONS
(1)
The plan of merger or the plan of consolidation.
(2)
Where the members of any merging or consolidating corporation have voting
rights, then as to each corporation (a) a statement setting forth the date of
the meeting of members at which the plan was adopted, that a quorum was present
at such meeting, and that such plan received at least two-thirds of the votes
which members present at such meeting in person or by proxy were entitled to
cast, as well as, in the case of any class entitled to vote as a class thereon
by the terms of the articles of incorporation or of the by-laws, at least
two-thirds of the votes which members of any such class who were present at
such meeting in person or by proxy were entitled to cast, or (b) a statement
that such amendment was adopted by a consent in writing signed by all members
entitled to vote with respect thereto.
(3)
Where any merging or consolidating corporation has no members, or no members
having voting rights, then as to each such corporation a statement of such
fact, the date of the meeting of the board of directors at which the plan was
adopted and a statement of the fact that such plan received the vote of a
majority of the directors in office.
B.
The original and a copy of the articles of merger or articles of consolidation
shall be delivered to the Secretary of State. If the Secretary of State finds
that such articles conform to law, he shall, when all fees have been paid as in
this Act prescribed:
(1)
Endorse on the original and the copy the word "Filed," and the month,
day and year of the filing thereof.
(2)
File the original in his office.
(3)
Issue a certificate of merger or a certificate of consolidation to which he
shall affix the copy.
C.
The certificate of merger or certificate of consolidation, together with the
copy of the articles of merger or articles of consolidation affixed thereto by
the Secretary of State, shall be returned to the surviving or new corporation,
as the case may be, or its representative.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 5.04. Amended by Acts 1979, 66th Leg., p. 216, ch. 120, Sec. 8, eff.
May 9, 1979; Acts 1987, 70th Leg., ch. 93, Sec. 40, eff. Aug. 31, 1987.
Art. 1396-5.05. EFFECTIVE DATE OF
MERGER OR CONSOLIDATION OF DOMESTIC CORPORATIONS
Acts 1959, 56th Leg., p. 286, ch.
162, art. 5.05. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 21, eff. Jan. 1,
1994.
Art. 1396-5.06. EFFECT OF MERGER OR
CONSOLIDATION OF DOMESTIC CORPORATIONS
(1)
The several corporations parties to the plan of merger or consolidation shall
be a single corporation, which, in the case of a merger, shall be that
corporation designated in the plan of merger as the surviving corporation, and,
in the case of consolidation, shall be the new corporation provided for in the
plan of consolidation.
(2)
The separate existence of all corporations parties to the plan of merger or
consolidation, except the surviving or new corporation, shall cease.
(3)
Such surviving or new corporation shall have all the rights, privileges,
immunities and powers and shall be subject to all the duties and liabilities of
a corporation organized under this Act.
(4)
Such surviving or new corporation shall thereupon and thereafter possess all
the rights, privileges, immunities and franchises, as well of a public as of a
private nature, of each of the merging or consolidating corporations; and all
property, real, personal and mixed, and all debts due on whatever account, and
all other choses in action, and all and every other interest, of or belonging
to or due to each of the corporations so merged or consolidated, shall be taken
and deemed to be transferred to and vested in such single corporation without
further act or deed.
(5)
Such surviving or new corporation shall thenceforth be responsible and liable
for all the liabilities and obligations of each of the corporations so merged
or consolidated; and any claim existing or action or proceeding pending by or
against any of such corporations may be prosecuted as if such merger or
consolidation had not taken place, or such surviving or new corporation may be
substituted in its place. Neither the rights of creditors nor any liens upon
the property of any such corporations shall be impaired by such merger or
consolidation.
(6)
In the case of a merger, the articles of incorporation of the surviving
corporation shall be deemed to be amended to the extent, if any, that changes
in its articles of incorporation are stated in the plan of merger; and, in the
case of a consolidation, the statements set forth in the articles of
consolidation and which are required or are permitted to be set forth in the
articles of incorporation of corporations organized under this Act shall be
deemed to be the articles of incorporation of the new corporation.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 5.06.
Art. 1396-5.07. MERGER OR CONSOLIDATION
OF DOMESTIC AND FOREIGN CORPORATIONS
B.
Such merger or consolidation shall be carried out in the following manner:
(1)
Each domestic corporation shall comply with the provisions of this Act with
respect to merger or consolidation, as the case may be, of domestic
corporations, except that if the surviving or new corporation is to be a foreign
corporation, the plan of merger or consolidation shall specify the state under
whose laws such surviving or new corporation is to be governed and the post
office address of the registered or principal office of such surviving or new
corporation in the state under whose laws it is to be governed; provided,
however, that no domestic corporation shall be merged or consolidated with a
foreign corporation unless and until a resolution authorizing such merger or
consolidation shall receive, at a meeting of members of the domestic
corporation, called and conducted in the same manner as provided by Article
5.03 of this Act, at least two-thirds (2/3) of the votes which members present
at such meeting in person or by proxy are entitled to cast, and provided further
that if any class of members is entitled to vote as a class thereon by the
terms of the articles of incorporation or of the by-laws, as to such
corporation the resolution shall not be adopted unless it shall also receive at
least two-thirds of the votes which members of each such class who are present
at such meeting in person or by proxy are entitled to cast, and provided
further that if such a domestic corporation has no members, or no members
having voting rights, the plan of merger or consolidation shall be adopted at a
meeting of the board of directors of such corporation upon receiving the vote
of a majority of the directors in office.
(2)
If the surviving or new corporation, as the case may be, is a foreign
corporation, it shall comply with the provisions of this Act with respect to
foreign corporations if it is to transact business in this State, and in every
case it shall file with the Secretary of State of this State:
(a)
An agreement that it may be served with process in this State in any proceeding
for the enforcement of any obligation of any domestic corporation which was a
party to such merger or consolidation.
(b)
An irrevocable appointment of the Secretary of State of this State as its agent
to accept service of process in any such proceeding.
(3)
Upon compliance by each domestic and foreign corporation which is a party to
the merger or consolidation with the provisions of this Act with respect to
merger or consolidation, and upon issuance by the Secretary of State of this
State of the certificate of merger or the certificate of consolidation provided
for in this Act, the merger or consolidation shall be effected in this State.
C.
The effect of such merger or consolidation shall be the same as in the case of
the merger or consolidation of domestic corporations, if the surviving or new
corporation is a domestic corporation. If the surviving or new corporation is a
foreign corporation, the effect of such merger or consolidation shall be the
same as in the case of the merger or consolidation of domestic corporations
except in so far as the laws of such other state provide otherwise.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 5.07. Amended by Acts 1981, 67th Leg., p. 832, ch. 297, Sec. 3, eff.
Aug. 31, 1981.
Art. 1396-5.08. CONVEYANCE BY
CORPORATION
Acts 1959, 56th Leg., p. 286, ch.
162, art. 5.08. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 22, eff. Jan. 1,
1994.
Art. 1396-5.09. SALE, LEASE OR
EXCHANGE OF ASSETS
(1)
Where there are members having voting rights, the board of directors shall
adopt a resolution recommending such sale, lease, or exchange, and directing
the submission thereof to a vote at a meeting of members having voting rights,
which may be either an annual or a special meeting. Written or printed notice
stating that the purpose, or one of the purposes, of such meeting is to
consider the sale, lease, or exchange of all, or substantially all, the
property and assets of the corporation shall be given to each member entitled
to vote at such meeting, within the time and in the manner provided by this Act
for the giving of notice of meetings of members. At such meeting the members
may authorize such sale, lease, or exchange, and may fix, or may authorize the
board of directors to fix, any or all of the terms and conditions thereof and
the consideration to be received by the corporation therefor. Such
authorization shall require at least two-thirds (2/3) of the votes which
members present at such meeting in person or by proxy are entitled to cast,
unless any class of members is entitled to vote as a class thereon by the terms
of the articles of incorporation or of the by-laws in which event such
authorization shall also require at least two-thirds (2/3) of the votes which
members of each such class who are present at such meeting in person or by
proxy are entitled to cast. After such authorization by vote of members, the
board of directors, nevertheless, in its discretion, may abandon such sale,
lease, or exchange of assets, subject to the rights of third parties under any
contracts relating thereto, without further action or approval by members.
(2)
Unless otherwise provided in the articles of incorporation, where there are no
members, or no members having voting rights, a sale, lease, or exchange of all,
or substantially all, the property and assets of a corporation shall be
authorized upon receiving the vote of a majority of the directors in office.
(3)
Where the management of the affairs of a corporation vested in its members
pursuant to Article 2.14C of this Act, a resolution authorizing such sale,
lease, or exchange shall be submitted to a vote at a meeting of the members,
which may be an annual, a regular, or a special meeting. Except as otherwise
provided in the articles of incorporation or the by-laws, notice stating that
the purpose or one of the purposes of such meeting is to consider the sale,
lease, or exchange of all, or substantially all, the property and assets of the
corporation shall be given to the members, within the time and in the manner
provided by this Act for the giving of notice of meetings of members. At such
meeting, the members may authorize such sale, lease, or exchange, and may fix,
or authorize one or more of its members to fix, any or all of the terms and
conditions thereof and the consideration to be received by the corporation
therefor. Such authorization shall require at least two-thirds of the votes of
the members present at such meeting.
(4)
Except as otherwise provided in the articles of incorporation, the board of
directors may authorize any pledge, mortgage, deed of trust, or trust indenture
and no authorization or consent of members shall be required for the validity
thereof or for any sale pursuant to the terms thereof; provided that where the
management of the affairs of the corporation is vested in its members pursuant
to Article 2.14C of this Act, the members may authorize any pledge, mortgage,
deed of trust, or trust indenture in the same manner as provided in Subsection
(3) of this Section, and no authorization by the board of directors shall be
required for the validity thereof or for any sale pursuant to the terms
thereof.
(5)
Notwithstanding the provisions of Subsection (1) of this Section, when the
corporation is insolvent, a sale, lease, or exchange of all, or substantially
all, the property and assets of a corporation shall be authorized upon
receiving the vote of a majority of the directors in office.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 5.09.
Art. 1396-6.01. VOLUNTARY
DISSOLUTION
(1)
Where there are members having voting rights, the board of directors shall adopt
a resolution recommending that the corporation be dissolved, and directing that
the question of such dissolution be submitted to a vote at a meeting of members
having voting rights, which may be either an annual or a special meeting.
Written or printed notice stating that the purpose, or one of the purposes, of
such meeting is to consider the advisability of dissolving the corporation,
shall be given to each member entitled to vote at such meeting, within the time
and in the manner provided in this Act for the giving of notice of meetings of
members. A resolution to dissolve the corporation shall be adopted upon
receiving at least two-thirds of the votes which members present at such
meeting in person or by proxy are entitled to cast, unless any class of members
is entitled to vote as a class thereon by the terms of the articles of
incorporation or of the by-laws, in which event the resolution shall not be
adopted unless it also receives at least two-thirds of the votes which members
of each such class who are present at such meeting in person or by proxy are
entitled to cast.
(2)
Where there are no members, or no members having voting rights, the dissolution
of the corporation shall be authorized at a meeting of the board of directors
upon the adoption of a resolution to dissolve by the vote of a majority of the
directors in office.
(3)
Where the management of the affairs of the corporation is vested in the members
pursuant to Article 2.14C of this Act, a resolution that the corporation be
dissolved shall be submitted to a vote at a meeting of members, which may be an
annual, a regular, or a special meeting. Except as otherwise provided in the
articles of incorporation or the by-laws, notice stating that the purpose or
one of the purposes of such meeting is to consider the advisability of
dissolving the corporation shall be given to the members, within the time and
in the manner provided in this Act for the giving of notice of meetings of
members. A resolution to dissolve the corporation shall be adopted upon
receiving at least two-thirds of the votes of members present at such meeting.
B.
Upon the adoption of such resolution by the members, or by the board of
directors where there are no members or no members having voting rights, the
corporation shall cease to conduct its affairs except in so far as may be
necessary for the winding up thereof, shall immediately cause a notice of the
proposed dissolution to be mailed to each known creditor of and claimant
against the corporation, and shall proceed to collect its assets and apply and
distribute them as provided in this Act.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 6.01.
Art. 1396-6.02. APPLICATION AND
DISTRIBUTION OF ASSETS
(1)
All liabilities and obligations of the corporation shall be paid, satisfied and
discharged; in case its property and assets are not sufficient to satisfy or
discharge all the corporation's liabilities and obligations, the corporation
shall apply them so far as they will go to the just and equitable payment of
the liabilities and obligations.
(2)
Assets held by the corporation upon condition requiring return, transfer or
conveyance, which condition occurs by reason of the dissolution, shall be
returned, transferred or conveyed in accordance with such requirements.
(3)
Unless provided otherwise by a provision of the corporation's articles of
incorporation, the remaining assets of the corporation shall be distributed
only for tax exempt purposes to one or more organizations which are exempt
under Section 501(c)(3), Internal Revenue Code of 1986 (26 U.S.C. Section
501(c)(3)), or its successor statute, or which are described in Section
170(c)(1) or (2), Internal Revenue Code of 1986 (26 U.S.C. Section 170(c)(1) or
(2)), or its successor statute, pursuant to a plan of distribution adopted as
provided in this Act. A district court of the county in which the corporation's
principal office is located shall distribute to one or more organizations
exempt under Section 501(c)(3) or described in Section 170(c)(1) or (2), or
their successor statutes, the remaining assets of the corporation not
distributed under the plan of distribution. Any distribution by the court shall
be made in such manner as, in the judgment of the court, will best accomplish
the general purposes for which the corporation was organized.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 6.02. Amended by Acts 1985, 69th Leg., ch. 682, Sec. 1, eff. Sept. 1,
1985; Acts 1993, 73rd Leg., ch. 733, Sec. 23, eff. Jan. 1, 1994.
Art. 1396-6.03. PLAN OF DISTRIBUTION
(1)
Where there are members having voting rights, the board of directors shall
adopt a resolution recommending a plan of distribution and directing the
submission thereof to a vote at a meeting of members having voting rights,
which may be either an annual or a special meeting. Written or printed notice
setting forth the proposed plan of distribution or a summary thereof shall be
given to each member entitled to vote at such meeting, within the time and in
the manner provided in this Act for the giving of notice of meetings of
members. Such plan of distribution shall be adopted upon receiving at least
two-thirds (2/3) of the votes which members present at such meeting in person
or by proxy are entitled to cast, unless any class of members is entitled to
vote as a class thereon by the terms of the articles of incorporation or of the
by-laws, in which event the proposed plan shall not be adopted unless it also
receives at least two-thirds of the votes which members of each such class who
are present at such meeting in person or by proxy are entitled to cast.
(2)
Where there are no members, or no members having voting rights, a plan of
distribution shall be adopted at a meeting of the board of directors upon
receiving the vote of a majority of the directors in office.
(3)
Where the management of the affairs of the corporation is vested in its members
pursuant to Article 2.14C of this Act, a proposed plan of distribution shall be
submitted to a vote at a meeting of the members, which may be an annual, a
regular, or a special meeting. Except as otherwise provided in the articles of
incorporation or the by-laws, notice setting forth the proposed plan of
distribution or a summary thereof shall be given to the members within the time
and in the manner provided in this Act for the giving of notice of meetings of
members. Such plan of distribution shall be adopted upon receiving at least
two-thirds of the votes of the members present at such meeting.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 6.03.
Art. 1396-6.04. REVOCATION OF
VOLUNTARY DISSOLUTION PROCEEDINGS
(1)
Where there are members having voting rights, the board of directors shall
adopt a resolution recommending that the voluntary dissolution proceedings be
revoked, and directing that the question of such revocation be submitted to a
vote at a meeting of members having voting rights, which may be either an
annual or a special meeting. Written or printed notice stating that the
purpose, or one of the purposes, of such meeting is to consider the
advisability of revoking the voluntary dissolution proceedings, shall be given
to each member entitled to vote at such meeting, within the time and in the
manner provided in this Act for the giving of notice of meetings of members. A
resolution to revoke the voluntary dissolution proceedings shall be adopted
upon receiving at least two-thirds (2/3) of the votes which members present at
such meeting in person or by proxy are entitled to cast, unless any class of
members is entitled to vote as a class thereon by the terms of the articles of
incorporation or of the by-laws, in which event the proposed resolution shall
not be adopted unless it also receives at least two-thirds (2/3) of the votes
which members of each such class who are present at such meeting in person or
by proxy are entitled to cast.
(2)
Where there are no members, or no members having voting rights, a resolution to
revoke the voluntary dissolution proceedings shall be adopted at a meeting of
the board of directors upon receiving the vote of a majority of the directors
in office.
(3)
Where the management of the affairs of the corporation is vested in its members
pursuant to Article 2.14C of this Act, a resolution that the voluntary
dissolution proceedings be revoked shall be submitted to a vote at a meeting of
the members, which may be an annual, a regular, or a special meeting. Except as
otherwise provided in the articles of incorporation or the by-laws, notice
stating that the purpose, or one of the purposes, of such meeting is to
consider the advisability of revoking the voluntary dissolution proceedings
shall be given to the members, within the time and in the manner provided in
this Act for the giving of notice of meetings of members. A resolution to
revoke the voluntary dissolution proceedings shall be adopted upon receiving at
least two-thirds (2/3) of the votes of the members present at such meeting.
B.
Upon the adoption of such resolution by the members, or by the board of
directors where there are no members or no members having voting rights, the
corporation may thereupon again conduct its affairs.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 6.04.
Art. 1396-6.05. ARTICLE OF
DISSOLUTION
(1)
The name of the corporation.
(2)
Where there are members having voting rights, (a) a statement setting forth the
date of the meeting of members at which the resolution to dissolve was adopted,
that a quorum was present at such meeting, and that such resolution received at
least two-thirds (2/3) of the votes which members present at such meeting in
person or by proxy were entitled to cast, as well as, in the case of any class
entitled to vote as a class thereon by the terms of the articles of
incorporation or of the by-laws, at least two-thirds (2/3) of the votes which
members of any such class who were present at such meeting in person or by
proxy were entitled to cast, or (b) a statement that such resolution was
adopted by a consent in writing signed by all members entitled to vote with respect
thereto.
(3)
Where there are no members, or no members having voting rights, a statement of
such fact, the date of the meeting of the board of directors at which the
resolution to dissolve was adopted and a statement of the fact that such
resolution received the vote of a majority of the directors in office.
(4)
That all debts, obligations, and liabilities of the corporation have been paid
and discharged or that adequate provision has been made therefor, or, in case
the corporation's property and assets were not sufficient to satisfy and
discharge all its liabilities and obligations, that all the property and assets
have been applied so far as they would go to the payment thereof in a just and
equitable manner and that no property or assets remained available for
distribution among its members.
(5)
That all the remaining property and assets of the corporation have been
transferred, conveyed or distributed in accordance with the provisions of this
Act; provided, however, that if assets were received and held by the
corporation subject to limitations permitting their use only for charitable,
religious, eleemosynary, benevolent, educational or similar purposes, but not
held upon a condition requiring return, transfer or conveyance by reason of the
dissolution, there shall also be set forth a statement that a plan of
distribution has been adopted as provided in this Act for the distribution of
such assets, and a statement that distribution has been effected in accordance
with such plan.
(6)
That there are no suits pending against the corporation in any court, or that
adequate provision has been made for the satisfaction of any judgment, order or
decree which may be entered against it in any pending suit.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 6.05. Amended by Acts 1979, 66th Leg., p. 216, ch. 120, Sec. 9, eff.
May 9, 1979; Acts 1987, 70th Leg., ch. 93, Sec. 41, eff. Aug. 31, 1987; Subsec.
A amended by Acts 2001, 77th Leg., ch. 757, Sec. 8, eff. Sept. 1, 2001.
Art. 1396-6.06. FILING OF ARTICLES
OF DISSOLUTION
(1)
Endorse on the original and the copy the word "Filed," and the month,
day and year of the filing thereof.
(2)
File the original in his office.
(3)
Issue a certificate of dissolution to which he shall affix the copy.
B.
The certificate of dissolution, together with the copy of the articles of
dissolution affixed thereto by the Secretary of State, shall be returned to the
representative of the dissolved corporation. Upon the issuance of such certificate
of dissolution the existence of the corporation shall cease, except for the
purpose of suits, other proceedings and appropriate corporate action by
members, directors and officers as provided in this Act.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 6.06. Amended by Acts 1979, 66th Leg., p. 217, ch. 120, Sec. 10, eff.
May 9, 1979.
Art. 1396-6.07. FRAUDULENT
TERMINATION
B.
The secretary of state shall take any action necessary to implement an order
under this article.
Added by Acts 2003, 78th Leg., ch.
238, Sec. 43, eff. Sept. 1, 2003.
Art. 1396-7.01. INVOLUNTARY
DISSOLUTION; REINSTATEMENT
(1)
The corporation or its incorporators have failed to comply with a condition
precedent to incorporation; or
(2)
The original articles of incorporation or any amendments thereof were procured
through fraud; or
(3)
The corporation has continued to transact business beyond the scope of the
purpose or purposes of the corporation as expressed in its articles of
incorporation; or
(4)
A misrepresentation has been made of any material matter in any application,
report, affidavit, or other document submitted by such corporation pursuant to
this Act.
B.
A corporation may be dissolved involuntarily by order of the Secretary of State
when it is established that it is in default in any of the following particulars:
(1)
The corporation has failed to file any report within the time required by law,
or has failed to pay any fees, franchise taxes or penalties prescribed by law
when the same have become due and payable;
(2)
The corporation has failed to maintain a registered agent in this state as
required by law; or
(3)
The corporation has failed to pay the filing fee for its articles of
incorporation, or the fee was paid by an instrument that was dishonored when
presented by the state for payment.
C.
(1) No corporation shall be involuntarily dissolved under Subsection (1) or (2)
of Section B hereof unless the Secretary of State, or other state agency with
which such report, fees, taxes or penalties is required to be made, gives the
corporation not less than 90 days notice of its neglect, delinquency, or
omission by certified mail addressed to its registered office or to its
principal place of business, or to the last known address of one of its
officers or directors, or to any other known place of business of said
corporation, and the corporation has failed prior to such involuntary
dissolution to correct the neglect, omission or delinquency.
(2)
When a corporation is involuntarily dissolved under Subsection (3) of Section B
of this article, the Secretary of State shall give the corporation notice of
the dissolution by regular mail addressed to its registered office, its
principal place of business, the last known address of one of its officers or
directors, or any other known place of business of the corporation.
D.
Whenever a corporation has given cause for involuntary dissolution and has
failed to correct the neglect, omission or delinquency as provided in Sections
B and C, the Secretary of State shall thereupon dissolve the corporation by
issuing a certificate of involuntary dissolution, which shall include the fact
of such involuntary dissolution and the date and cause thereof. The original of
such certificate shall be placed in his office and a copy thereof mailed to the
corporation at its registered office, or to its principal place of business, or
to the last known address of one of its officers or directors, or to any other
known place of business of said corporation. Upon the issuance of such
certificate of involuntary dissolution, the existence of the corporation shall
cease, except for purposes otherwise provided by law.
E.
Any corporation dissolved by the Secretary of State under the provisions of
Section B of this article may be reinstated by the Secretary of State at any
time within a period of 36 months from the date of such dissolution, upon
approval of an application for reinstatement signed by an officer or director
of the dissolved corporation. Such application shall be filed by the Secretary
of State whenever it is established to his satisfaction that in fact there was
no cause for the dissolution, or whenever the neglect, omission or delinquency
resulting in dissolution has been corrected and payment made of all fees,
taxes, penalties and interest due thereon which accrued before the dissolution
plus an amount equal to the total taxes from the date of dissolution to the
date of reinstatement which would have been payable had the corporation not
been dissolved. A reinstatement filing fee of $25.00 shall accompany the
application for reinstatement.
Reinstatement
shall not be authorized if the corporate name is the same as or deceptively
similar to a corporate name already on file or reserved or registered, unless
the corporation being reinstated contemporaneously amends the articles of
incorporation to change its name.
When
the application for reinstatement is approved and filed by the Secretary of
State, the corporate existence shall be deemed to have continued without
interruption from the date of dissolution except the reinstatement shall have
no effect upon any issue of personal liability of the directors, officers, or
agents of the corporation during the period between dissolution and
reinstatement.
F.
When a corporation is convicted of a felony, or when a high managerial agent is
convicted of a felony in the conduct of the affairs of the corporation, the
Attorney General may file an action to involuntarily dissolve the corporation
in a district court of the county in which the registered office of the
corporation is situated or in a district court of Travis County. The court may
dissolve the corporation involuntarily if it is established that:
(1)
The corporation, or a high managerial agent acting in behalf of the
corporation, has engaged in a persistent course of felonious conduct; and
(2)
To prevent future felonious conduct of the same character, the public interest
requires such dissolution.
G.
Article 7.02 of this Act does not apply to Section F of this article.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.01. Amended by Acts 1965, 59th Leg., p. 533, ch. 276, Sec. 1, 2,
eff. Aug. 30, 1965; Acts 1969, 61st Leg., p. 2477, ch. 834, Sec. 3, eff. June
18, 1969; Acts 1973, 63rd Leg., p. 990, ch. 399, Sec. 2(M), eff. Jan. 1, 1974;
Acts 1981, 67th Leg., p. 833, ch. 297, Sec. 4, eff. Aug. 31, 1981; Acts 2001,
77th Leg., ch. 757, Sec. 9, eff. Sept. 1, 2001.
Art. 1396-7.02. NOTIFICATION TO
ATTORNEY GENERAL, NOTICE TO CORPORATION AND OPPORTUNITY TO CURE DEFAULT
B.
Whenever the Secretary of State shall certify the name of any such corporation
to the Attorney General as having given any cause for dissolution or revocation
of its certificate of authority, the Secretary of State shall concurrently mail
to such corporation at its registered office in this State a notice that such
certification has been made and the grounds therefor. A record of the date of
mailing such notice shall be kept in the office of the Secretary of State, and
a certificate by the Secretary of State that such notice was mailed as
indicated by such record shall be taken and received in all courts as prima
facie evidence of the facts therein stated.
C.
If at the expiration of thirty (30) days after the date of such mailing the
corporation has not cured the defaults so certified by the Secretary of State,
the Attorney General may then file an action in the name of the State against
such corporation for its dissolution or revocation of its certificate of
authority, as the case may be.
D.
If, after any such action is filed but before judgment is pronounced in the
district court, the corporation against whom such action has been filed shall
cure its default and pay the costs of such action, the action shall abate.
E.
If, after the issues made in any such action have been heard by the court
trying same and it is found that the corporate defendant has been guilty of any
default of such nature as to justify its dissolution or revocation of its
certificate of authority as provided in this Act, the court shall without
rendering or entering any judgment for a period of five (5) days pending the
filing of an action upon a sworn application for stay of judgment as
hereinafter provided, promptly pronounce its findings to such effect. If the
corporation has proved by a preponderance of the evidence that the defaults of
which the corporation has been found guilty were neither willful nor the result
of failure to take reasonable precautions and has procured a finding to such
effect it may promptly make sworn application to the court for a stay of entry
of judgment in order to allow the corporation reasonable opportunity to cure
the defaults of which it has been found guilty. If the court is reasonably
satisfied on the basis of the corporation's sworn application and any evidence
heard in support of or opposed to the application that the corporation is able
and intends in good faith to cure the defaults of which it has been found
guilty and that such stay is not applied for without just cause, the court
shall grant such application and stay entry of judgment for such time as in the
discretion of the court is reasonably necessary to afford the corporation
opportunity to cure such defaults if it acts with reasonable diligence, but in
no event shall such stay be for more than sixty (60) days after the date of the
pronouncement of the court's findings. If during such period of time as shall
be allowed by the court the corporation shall cure its defaults and pay the
costs of such action, the court shall then enter judgment dismissing the
action. If the corporation does not satisfy the court that it has cured its
default within said period of time, the court shall enter final judgment at the
expiration thereof.
F.
If the corporation does not make application for stay of such judgment but does
appeal therefrom and the trial court's judgment is affirmed and if the
appellate court is satisfied that the appeal was taken in good faith and not
for purpose of delay or with no sufficient cause and further finds that the
defaults of which the corporation has been adjudged guilty are capable of being
cured, it shall, if the appealing corporation has so prayed, remand the case to
the trial court with instructions to grant the corporation opportunity to cure
such defaults, such cure to be accomplished within such time after issuance of
the mandate as the appellate court shall determine but in no event more than
sixty (60) days thereafter. If during such period of time as shall have been so
allowed the corporation shall cure such defaults and pay all costs accrued in
such action, the trial court shall then enter judgment dismissing such action.
If the corporation does not satisfy the trial court that it has cured its
defaults within such period of time, the judgment shall thereupon become final.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.02. Amended by Acts 1965, 59th Leg., p. 533, ch. 276, Sec. 3, eff.
Aug. 30, 1965; Acts 1969, 61st Leg., p. 2477, ch. 834, Sec. 4, eff. June 18,
1969.
Art. 1396-7.03. VENUE AND PROCESS
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.03.
Art. 1396-7.04. APPOINTMENT OF
RECEIVER FOR SPECIFIC CORPORATE ASSETS
(1)
In an action by a vendor to vacate a fraudulent purchase of property; or by a
creditor to subject any property or fund to his claim; or between partners or
others jointly owning or interested in any property or fund, on the application
of the plaintiff or any party whose right to or interest in the property or
fund or the proceeds thereof is probable, and where it is shown that the
property or fund is in danger of being lost, removed, or materially injured.
(2)
In an action by a mortgagee for the foreclosure of his mortgage and sale of the
mortgaged property, when it appears that the mortgaged property is in danger of
being lost, removed, or materially injured, or that the condition to the mortgage
has not been performed and that the property is probably insufficient to
discharge the mortgage debt.
(3)
In any other actions where receivers for specific assets have heretofore been
appointed by the usage of the court of equity.
B.
The court appointing such receiver shall have and retain exclusive jurisdiction
over the specific assets placed in receivership and shall determine the rights
of the parties in these assets or their proceeds.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.04.
Art. 1396-7.05. APPOINTMENT OF
RECEIVER TO REHABILITATE CORPORATION
(1)
In an action by a member when it is established:
(a)
That the corporation is insolvent or in imminent danger of insolvency; or
(b)
That the directors are deadlocked in the management of the corporate affairs
and the members are unable to break the deadlock, and that irreparable injury
to the corporation is being suffered or is threatened by reason thereof; or
(c)
That the acts of the directors or those in control of the corporation are
illegal, oppressive or fraudulent; or
(d)
That the corporate assets are being misapplied or wasted.
(2)
In an action by a creditor when it is established:
(a)
That the corporation is insolvent and the claim of the creditor has been
reduced to judgment and an execution thereon returned unsatisfied; or
(b)
That the corporation is insolvent and the corporation has admitted in writing
that the claim of the creditor is due and owing.
(3)
In any other actions where receivers have heretofore been appointed by the
usages of the court of equity.
B.
In the event that the condition of the corporation necessitating such an
appointment of a receiver is remedied, the receivership shall be terminated
forthwith and the management of the corporation shall be restored to the
directors and officers, the receiver being directed to redeliver to the
corporation all its remaining properties and assets.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.05.
Art. 1396-7.06. JURISDICTION OF
COURT TO LIQUIDATE ASSETS AND AFFAIRS OF CORPORATION AND RECEIVERSHIPS THEREFOR
(1)
When an action has been filed by the Attorney General, as provided in this Act,
to dissolve a corporation and it is established that liquidation of its affairs
should precede the entry of a decree of dissolution.
(2)
Upon application by a corporation to have its liquidation continued under the
supervision of the court.
(3)
If the corporation is in receivership and no plan for remedying the condition
of the corporation requiring appointment of the receiver, which the court finds
to be feasible, has been presented within twelve (12) months after the
appointment of the receiver.
(4)
Upon application of any creditor if it is established that irreparable damage
will ensue to the unsecured creditors of the corporation, generally, as a
class, unless there be an immediate liquidation of the assets of the
corporation.
(5)
Upon application by a member or director when it is made to appear that the
corporation is unable to carry out its purposes.
B.
The assets of the corporation or the proceeds resulting from a sale, conveyance,
or other disposition thereof shall be applied and distributed as follows:
(1)
All costs and expenses of the court proceedings and all liabilities and
obligations of the corporation shall be paid, satisfied and discharged, or
adequate provision shall be made therefor;
(2)
Assets held by the corporation upon condition requiring return, transfer or
conveyance, which condition occurs by reason of the dissolution or liquidation,
shall be returned, transferred or conveyed in accordance with such
requirements;
(3)
Unless provided otherwise by a provision of the corporation's articles of
incorporation that refers to this subsection, the remaining assets of the
corporation shall be distributed only for tax exempt purposes to one or more
organizations which are exempt under Section 501(c)(3), Internal Revenue Code
of 1954 (26 U.S.C. Section 501(c)(3)), or its successor statute, or which are
described in Section 170(c)(1) or (2), Internal Revenue Code of 1954 (26 U.S.C.
Section 170(c)(1) or (2)), or its successor statute. The distribution by the
court shall be made in such manner as, in the judgment of the court, will best
accomplish the general purposes for which the corporation was organized.
C.
In the event the condition of the corporation necessitating the appointment of
a receiver is remedied, the receivership shall be terminated forthwith and the
management of the corporation shall be restored to the directors and the
officers, the receiver being directed to re-deliver to the corporation all its
remaining properties and assets.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.06. Amended by Acts 1985, 69th Leg., ch. 682, Sec. 2, eff. Sept. 1,
1985.
Art. 1396-7.07. QUALIFICATION,
POWERS, AND DUTIES OF RECEIVERS; OTHER PROVISIONS RELATING TO RECEIVERSHIPS
B.
A receiver appointed by authority of this Act shall have authority to sue and
be sued in all courts in his own name and shall have those powers and duties
provided by laws of general applicability relating to receivers and in addition
thereto may be accorded such other powers and duties as the court shall deem
appropriate to accomplish the objectives for which the receiver was appointed.
Such additional and unusual powers and duties shall be stated in the order
appointing the receiver and may be increased or diminished at any time during
the proceedings.
C.
In proceedings involving any receivership of the assets or business of a corporation,
the court may require all creditors of the corporation to file with the clerk
of the court or with the receiver, in such form as the court may prescribe,
proofs of their respective claims under oath. If the court requires the filing
of claims, it shall fix a date as the last day for the filing thereof, which
shall be not less than four months from the date of the order, and shall
prescribe the notice that shall be given to creditors and claimants of the date
so fixed. Prior to the date so fixed, the court may extend the time for the
filing of claims. Creditors and claimants failing to file proofs of claim on or
before the date fixed therefor may be barred, by order of court (unless
presenting to the court a justifiable excuse for delay in the filing), from
participating in the distribution of the assets of the corporation but no
discharge shall be decreed or effected.
D.
The court shall have power from time to time to make allowances to the receiver
or receivers and to attorneys in the proceeding, and to direct the payment
thereof out of the assets of the corporation within the scope of the
receivership or the proceeds of any sale or disposition of such assets.
E.
A court authorized to appoint a receiver for a corporation to which this Act
applies, and no other court in this State, shall be authorized to appoint a
receiver for the corporation or its assets and business; when such a court does
appoint a receiver, as authorized by this Act, for the corporation or its
assets and business, that court shall have exclusive jurisdiction of the
corporation and all its properties, wherever situated.
F.
Notwithstanding any provision of this Article or in this Act to the contrary,
the district court for the county in which the registered office of any foreign
corporation doing business in this State is located shall have jurisdiction to
appoint an ancillary receiver for the assets and business of such corporation,
to serve ancillary to the receiver for the assets and business of the
corporation acting under orders of a court having jurisdiction to appoint such
a receiver for the corporation, located in any other state, whenever
circumstances exist deemed by the court to require the appointment of such
ancillary receiver. Moreover, such district court, whenever circumstances exist
deemed by it to require the appointment of a receiver for all the assets in and
out of this State, and the business of a foreign corporation doing business in
this State, in accordance with the ordinary usages of equity, may appoint such
a receiver for all its assets in and out of this State, and its business, even
though no receiver has been appointed elsewhere; such receivership shall be
converted into an ancillary receivership when deemed appropriate by such
district court in the light of orders entered by a court of competent
jurisdiction in some other state, providing for a receivership of all assets
and business of such corporation.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.07.
Art. 1396-7.08. DIRECTORS AND
MEMBERS NOT NECESSARY PARTIES DEFENDANT TO RECEIVERSHIP OR LIQUIDATION
PROCEEDINGS
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.08.
Art. 1396-7.09. DECREE OF INVOLUNTARY
DISSOLUTION
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.09. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 24, eff. Jan. 1,
1994.
Art. 1396-7.10. FILING OF DECREE OF
DISSOLUTION
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.10.
Art. 1396-7.11. DEPOSIT WITH
COMPTROLLER OF AMOUNT DUE CERTAIN PERSONS
B.
On receipt of satisfactory written proof of ownership or of right to such fund
within seven (7) years from the date such fund was so deposited, the
Comptroller of Public Accounts shall issue proper warrant therefor drawn on the
State Treasury in favor of the person or persons then entitled thereto. If no
claimant has made satisfactory proof of rights to such fund within seven (7)
years from the time of such deposit the Comptroller shall then cause to be
published in one issue of a newspaper of general circulation in Travis County,
Texas, a notice of the proposed escheat of such fund, giving the name of the
creditor, member, or other person apparently entitled thereto, his last known
address, if any, the amount of the fund so deposited, and the name of the
dissolved corporation from whose assets such fund was derived. If no claimant
makes satisfactory proof of right to such fund within two months from the time
of such publication, the fund so unclaimed shall thereupon automatically
escheat to and become the property of the General Revenue Fund of the State of
Texas.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.11. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 25, eff. Jan. 1,
1994; Acts 1997, 75th Leg., ch. 1423, Sec. 21.39, eff. Sept. 1, 1997.
Art. 1396-7.12. LIMITED SURVIVAL
AFTER DISSOLUTION
(1)
prosecuting or defending in its corporate name any action or proceeding by or
against the corporation;
(2)
permitting the survival of any remedy not otherwise barred by limitations
available to or against the corporation, its officers, directors, members, or
creditors, for any right or claim existing, or any liability incurred, before
the dissolution;
(3)
holding title to and liquidating any assets or property that remain in the
corporation at the time of, or are collected by the corporation after, its
dissolution, and applying or distributing those assets or properties, or the
proceeds thereof, as provided in Subsection (3) of Section A of Article 6.04 of
this Act; and
(4)
settling any other affairs not completed before its dissolution.
However,
such a dissolved corporation may not continue its corporate existence for the
purpose of continuing the business or affairs for which the dissolved
corporation was organized, except in the case of a corporation whose period of
duration has expired and that has chosen to revive its existence as provided in
this Act or a corporation that has been dissolved by the Secretary of State
pursuant to Section B of Article 7.01 of this Act and that has been reinstated
pursuant to Section E of Article 7.01 of this Act.
B.
During the three-year period, the members of the board of directors of a
dissolved corporation serving at the time of dissolution or the majority of
them then living, however reduced in number, or their successors selected by
them, shall continue to manage the affairs of the dissolved corporation for the
limited purpose or purposes specified in this Article, and shall have the
powers necessary to accomplish those purposes, including the power to
prosecute, pay, compromise, defend, and satisfy any action, claim, demand, or
judgment by or against the dissolved corporation, and to administer, sell, and
distribute in final liquidation any property or assets still remaining. In the
exercise of those powers, the directors shall have the same duties to the
dissolved corporation that they had immediately prior to the dissolution of the
corporation and shall be liable to the dissolved corporation for actions taken
by them after the dissolution to the same extent that they would have been
liable had those actions been taken by them prior to the dissolution.
Additional directors may be elected for purposes of this section in accordance
with the procedures provided in the bylaws in effect before the dissolution.
C.
A corporation is not liable for any claim other than an existing claim. An
existing claim by or against a dissolved corporation is extinguished unless an
action or proceeding on the existing claim is brought before the third
anniversary of the date of dissolution. If an action or proceeding on an
existing claim by or against a dissolved corporation is brought within the
period provided by this section and the existing claim is not extinguished
under this article, the dissolved corporation continues to survive:
(1)
for purposes of that action or proceeding until all judgments, orders, and
decrees in that action or proceeding have been fully executed; and
(2)
for purposes of applying or distributing any properties or assets of the
dissolved corporation as provided in Article 6.02 of this Act, until the
properties or assets are applied or distributed.
D.
A dissolved corporation may give written notice to a person having or asserting
an existing claim against the dissolved corporation to present the existing
claim to the dissolved corporation in accordance with the notice. The notice
must be sent by registered or certified mail, return receipt requested, to the
person having or asserting the existing claim at the person's last known
address, and must:
(1)
state that the person's claim against the dissolved corporation must be
presented in writing to the dissolved corporation on or before the date stated
in the notice, which shall be not earlier than 120 days after the date the
notice is sent to the person;
(2)
state that the written presentation of the claim must describe the claim in
sufficient detail to reasonably inform the dissolved corporation of the
identity of the person and to the nature and amount of the claim;
(3)
state a mailing address where the written presentation of the person's claim
against the dissolved corporation is to be sent and state that if the written
presentation of the claim is not received at that address on or before the date
stated in the notice, the claim will be extinguished; and
(4)
be accompanied by a copy of this section.
E.
If a written presentation of a person's claim against the dissolved corporation
that meets the requirements of Section D of this article has been received at
the address of the dissolved corporation stated in the notice on or before the
date stated in the notice, the dissolved corporation may give written notice to
that person that the claim is rejected by the dissolved corporation. The notice
of rejection must be sent by registered or certified mail, return receipt
requested, addressed to the person at the person's last known address, and must
state:
(1)
that the claim is rejected by the dissolved corporation;
(2)
that the claim will be extinguished unless an action or proceeding on the claim
is brought within 180 days after the date the notice of rejection was sent to
the person and before the third anniversary of the date of dissolution; and
(3)
the date the notice of rejection was sent and the date of dissolution.
F.
A person's claim against a dissolved corporation is extinguished if:
(1)
a written presentation of that claim meeting the requirements of this article
is not received at the address of the dissolved corporation stated in the
notice to the person on or before the date stated in the notice; or
(2)
an action or proceeding on the claim is not brought within 180 days after the
date a notice of rejection was sent to the person and before the third
anniversary of the date of dissolution.
G.
A dissolved corporation that was dissolved by the expiration of the period of
its duration may, during the three-year period following the date of
dissolution, amend its articles of incorporation by following the procedure
prescribed in this Act to extend or perpetuate its period of existence. That
expiration shall not of itself create any vested right on the part of any
member or creditor to prevent such an action. No act or contract of a dissolved
corporation during a period within which it could have extended its existence
as permitted by this Article, whether or not it has taken action so to extend
its existence, shall be in any degree invalidated by the expiration of its
period of duration.
H.
In this article:
(1)
"Dissolved corporation" means a corporation that was dissolved:
(a)
by the issuance of a certificate of dissolution or other action by the
Secretary of State;
(b)
by a decree of a court when the court has not liquidated all the assets and
affairs of the corporation as provided in this Act; or
(c)
by expiration of its period of duration if the corporation has not revived its
existence as provided in this Act.
(2)
"Claim" means a right to payment, damages, or property, whether
liquidated or unliquidated, accrued or contingent, matured or unmatured.
(3)
"Existing claim" means a claim that existed before dissolution and is
not otherwise barred by limitations or a contractual obligation incurred after
dissolution.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 7.12. Amended by Acts 1967, 60th Leg., p. 1824, ch. 704, Sec. 1, eff.
Aug. 28, 1967; Acts 1987, 70th Leg., ch. 93, Sec. 42, eff. Aug. 31, 1987; Acts
1989, 71st Leg., ch. 801, Sec. 47, eff. Aug. 28, 1989; Acts 1993, 73rd Leg.,
ch. 733, Sec. 26, eff. Jan. 1, 1994.
Art. 1396-8.01. ADMISSION OF FOREIGN
CORPORATIONS
B.
Without excluding other activities which may not constitute conducting affairs
in this State, a foreign corporation shall not be considered to be conducting
affairs in this State, for the purposes of this Act, by reason of carrying on
in this State any one (1) or more of the following activities:
(1)
Maintaining or defending any action or suit or any administration or
arbitration proceedings, or affecting the settlement thereof or the settlement
of claims or disputes to which it is a party.
(2)
Holding meetings of its directors or members or carrying on other activities
concerning its internal affairs.
(3)
Maintaining bank accounts.
(4)
Maintaining offices or agencies for the transfer, exchange, and registration of
securities issued by it, or appointing and maintaining trustees or depositaries
with relation to its securities.
(5)
Voting the stock of any corporation which it has lawfully acquired.
(6)
Effecting sales through independent contractors.
(7)
Creating as borrower or lender, or acquiring, indebtedness or mortgages or
other security interests in real or personal property.
(8)
Securing or collecting debts due to it or enforcing any rights in property
securing the same.
(9)
Conducting any affairs in interstate commerce.
(10)
Conducting an isolated transaction completed within a period of thirty (30)
days and not in the course of a number of repeated transactions of like nature.
(11)
Exercising the powers of executor or administrator of the estate of a
non-resident decedent under ancillary letters issued by a court of this State,
or exercising the powers of a trustee under the will of a non-resident
decedent, or under a trust created by a person, corporation or association,
non-resident of this State, if the exercise of such powers in such case will
not involve activities which would be deemed to constitute the transacting of
business in this State in the case of a foreign corporation acting in its own
right.
(12)
Acquiring, in transactions outside Texas, or in interstate commerce, of debts
secured by mortgages or liens on real or personal property in Texas, collecting
or adjusting of principal and interest payments thereon, enforcing or adjusting
any rights and property securing said debts, taking any actions necessary to
preserve and protect the interest of the mortgagee in said security, or any
combinations of such transactions.
(13)
Investing in or acquiring, in transactions outside of Texas, royalties and
other non-operating mineral interests, and the execution of division orders,
contracts of sale and other instruments incidental to the ownership of such
non-operating mineral interests.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.01. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 27, eff. Jan. 1,
1994.
Art. 1396-8.02. POWERS OF FOREIGN
CORPORATIONS. A. A foreign corporation which shall have received a
certificate of authority under this Act, shall, until its certificate of
authority shall have been revoked in accordance with the provisions of this Act
or until a certificate of withdrawal shall have been issued by the Secretary of
State as provided in this Act, enjoy the same, but no greater, rights and privileges
as a domestic corporation organized for the purposes set forth in the
application pursuant to which such certificate of authority is issued; and, as
to all matters affecting the conduct of intrastate affairs in this State, it
and its officers and directors shall be subject to the same duties,
restrictions, penalties, and liabilities now or hereafter imposed upon a
domestic corporation of like character and its officers and directors;
provided, however, that the laws of the jurisdiction of incorporation of a
foreign corporation shall govern (1) the internal affairs of the foreign
corporation, including but not limited to the rights, powers, and duties of its
board of directors and members and matters relating to its membership, and (2)
the liability, if any, of members of the foreign corporation for the debts,
liabilities, and obligations of the foreign corporation for which they are not
otherwise liable by statute or agreement.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.02. Amended by Acts 1989, 71st Leg., ch. 801, Sec. 48, eff. Aug.
28, 1989.
Art. 1396-8.03. CORPORATE NAME OF
FOREIGN CORPORATION
A. No
certificate of authority shall be issued to a foreign corporation if the
corporate name of such corporation:
(1) Contains
any word or phrase which indicates or implies that it is organized for any
purpose other than one or more of the purposes contained in its articles of
incorporation.
(2) Is
the same as, or deceptively similar to, the name of any corporation, whether
for profit or not for profit, existing under any Act of this State, or any
foreign corporation, whether for profit or not for profit, authorized to
transact business or conduct affairs in this State, or a corporate name reserved
or registered as permitted by the laws of this State; provided that
a name may be similar if written consent is obtained from the existing
corporation having the name deemed to be similar or the person, or corporation
for whom the name deemed to be similar is reserved or registered in the office
of the Secretary of State. A certificate of authority shall be
issued as provided by this Act to any foreign corporation having a name the
same as, deceptively similar to, or, if no consent is given, similar to the
name of any domestic corporation existing under the laws of this State or of
any foreign corporation authorized to transact business or conduct affairs in
this State, or a name the exclusive right to which is, at the time, reserved or
registered in accordance with this Act, provided the foreign corporation
qualifies and does business under a name that meets the requirements of this
article. The foreign corporation shall set forth in the application
for a certificate of authority the name under which it is qualifying and shall
file an assumed name certificate in accordance with Chapter 71, Business &
Commerce Code.
B.
When a foreign non-profit corporation that is authorized to conduct affairs in
this State changes its name to one under which a certificate of authority would
not be granted to it on application for a certificate, the certificate of
authority of the corporation is suspended, and after the suspension the
corporation may not conduct any affairs in this State until it has changed its
name to a name that is available to it under the laws of this State or until it
has otherwise complied with this Act.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.03. Amended by Acts 1981, 67th Leg., p. 834, ch. 297, Sec. 5, eff.
Aug. 31, 1981.
Amended by:
Acts
2007, 80th Leg., R.S., Ch. 885, Sec. 2.45, eff. April 1,
2009.
Art. 1396-8.04. APPLICATION FOR
CERTIFICATE OF AUTHORITY
(1)
The name of the corporation and the state or country under the laws of which it
is incorporated and, if the corporation is required to qualify under a name
other than its corporate name, the name under which the corporation is to be
qualified.
(2)
A statement that the corporation is a non-profit corporation.
(3)
The date of incorporation and the period of duration of the corporation.
(4)
The street address of the principal office of the corporation in the state or
country under the laws of which it is incorporated.
(5)
The street address of the proposed registered office of the corporation in this
State, and the name of its proposed registered agent in this State at such
address.
(6)
The purpose or purposes of the corporation which it proposes to pursue in
conducting its affairs in this State.
(7)
The names and respective addresses of the directors and officers of the
corporation.
(8)
A statement of whether or not the corporation has members.
(9)
Such additional information as may be necessary or appropriate in order to
enable the Secretary of State to determine whether such corporation is entitled
to a certificate of authority to conduct affairs in this State.
B.
Such application shall be made on forms promulgated by the Secretary of State
and shall be signed on behalf of the corporation by an officer.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.04. Amended by Acts 1979, 66th Leg., p. 218, ch. 120, Sec. 11, eff.
May 9, 1979; Acts 1981, 67th Leg., p. 835, ch. 297, Sec. 6, eff. Aug. 31, 1981;
Acts 1987, 70th Leg., ch. 93, Sec. 43, eff. Aug. 31, 1987; Acts 1993, 73rd
Leg., ch. 733, Sec. 28, eff. Jan. 1, 1994.
Art. 1396-8.05. FILING OF
APPLICATION FOR CERTIFICATE OF AUTHORITY
(1)
Endorse on each of such documents the word "Filed," and the month,
day and year of the filing thereof.
(2)
File in his office the original application and the certificate evidencing
corporate existence.
(3)
Issue a certificate of authority to conduct affairs in this State to which he
shall affix the copy of the application.
B.
The certificate of authority, together with the copy of the application affixed
thereto by the Secretary of State, shall be delivered to the corporation or its
representative.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.05. Amended by Acts 1979, 66th Leg., p. 218, ch. 120, Sec. 12, eff.
May 9, 1979; Acts 1981, 67th Leg., p. 835, ch. 297, Sec. 7, eff. Aug. 31, 1981.
Art. 1396-8.06. EFFECT OF
CERTIFICATE OF AUTHORITY
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.06. Amended by Acts 1993, 73rd Leg., ch. 733, Sec. 29, eff. Jan. 1,
1994.
Art. 1396-8.07. REGISTERED OFFICE
AND REGISTERED AGENT OF FOREIGN CORPORATION
(1)
A registered office which may be, but need not be, the same as its principal
office.
(2)
A registered agent, which agent may be either an individual resident in this
State whose business office is identical with such registered office, or a
domestic corporation, whether for profit or not for profit, or a foreign
corporation whether for profit or not for profit, authorized to transact
business or conduct affairs in this State, having an office identical with such
registered office.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.07.
Art. 1396-8.08. CHANGE OF REGISTERED
OFFICE OR REGISTERED AGENT OF FOREIGN CORPORATION
(1)
The name of the corporation.
(2)
The street address of its then registered office.
(3)
If the street address of its registered office is to be changed, the street
address to which the registered office is to be changed.
(4)
The name of its then registered agent.
(5)
If its registered agent is to be changed, the name of its successor registered
agent.
(6)
That the street address of its registered office and the post-office address of
the business office of its registered agent, as changed, will be identical.
(7)
That such change was authorized by its Board of Directors or by an officer of
the corporation so authorized by the Board of Directors, or if the management
of the corporation is vested in its members pursuant to Article 2.14C of this
Act, by the members.
B.
Such statement shall be signed on behalf of the corporation by an officer. The
original and a copy of such statement shall be delivered to the Secretary of
State. If the Secretary of State finds that such statement conforms to the
provisions of this Act, he shall, when all fees have been paid as required by
law:
(1)
Endorse on the original and the copy the word "Filed," and the month,
day and year of the filing thereof.
(2)
File the original in his office.
(3)
Return the copy to the corporation or its representative.
C.
Upon the filing of such statement by the Secretary of State, the change of
address of the registered office, or the appointment of a new registered agent,
or both, as the case may be, shall become effective.
D.
Any registered agent of a corporation may resign
(1)
by giving written notice to the corporation at its last known address
(2)
and by giving written notice, in triplicate (the original and two copies of the
notice), to the Secretary of State within ten days after mailing or delivery of
said notice to the corporation. Such notice shall include the last known
address of the corporation and shall include the statement that written notice
of resignation has been given to the corporation and the date thereof.
Upon
compliance with the requirements as to written notice, the appointment of such
agent shall terminate upon the expiration of thirty (30) days after receipt of
such notice by the Secretary of State.
If
the Secretary of State finds that such written notice conforms to the
provisions of this Act, he shall:
(1)
Endorse on the original and both copies the word "filed" and the
month, day and year of the filing thereof.
(2)
File the original in his office.
(3)
Return one copy to such resigning registered agent.
(4)
Return one copy to the corporation at the last known address of the corporation
as shown in such written notice.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.08. Amended by Acts 1969, 61st Leg., p. 2477, ch. 834, Sec. 5, 6,
eff. June 18, 1969; Acts 1979, 66th Leg., p. 218, ch. 120, Sec. 13, eff. May 9,
1979; Acts 1987, 70th Leg., ch. 93, Sec. 44, eff. Aug. 31, 1987; Acts 1993,
73rd Leg., ch. 733, Sec. 30, eff. Jan. 1, 1994.
Art. 1396-8.09. SERVICE OF PROCESS
ON FOREIGN CORPORATION
B. Whenever
a foreign corporation authorized to conduct affairs in this State shall fail to
appoint or maintain a registered agent in this State, or whenever any such registered
agent cannot with reasonable diligence be found at the registered office, or
whenever the certificate of authority of a foreign corporation shall be
revoked, then the Secretary of State shall be an agent of such corporation upon
whom any such process, notice, or demand may be served. Service on
the Secretary of State of any such process, notice, or demand shall be made by
delivering to and leaving with him, or with the Deputy Secretary of State, or
with any clerk having charge of the corporation department of his office,
duplicate copies of such process, notice, or demand. In the event
any such process, notice or demand is served on the Secretary of State, he
shall immediately cause one of such copies thereof to be forwarded by registered
mail, addressed to the corporation at its principal office in the state or
country under the laws of which it is incorporated. Any service so
had on the Secretary of State shall be returnable in not less than thirty (30)
days.
C.
The Secretary of State shall keep a record of all processes, notices and
demands served upon him under this Article, and shall record therein the time
of such service and his action with reference thereto.
D.
Provisions of Article 2031A of Revised Civil Statutes of Texas as amended shall
not apply to any corporation to which this Act applies.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.09.
Amended by:
Acts
2005, 79th Leg., Ch. 41, Sec. 6, eff. September 1,
2005.
Art. 1396-8.12. AMENDED CERTIFICATE
OF AUTHORITY
B.
A foreign corporation may change any other statement on its original
application for certificate of authority or any amendment to that certificate
by filing with the Secretary of State an application for an amended certificate
of authority setting forth the change.
C.
An application for an amended certificate of authority submitted because of a
name change must be accompanied by a certificate from the proper filing officer
in the jurisdiction of incorporation evidencing the name change.
D.
The requirements in respect to the form and contents of such application, the
manner of its execution, the filing of the original and a copy of the
application with the Secretary of State, the issuance of an amended certificate
of authority and the effect thereof, shall be the same as in the case of an
original application for a certificate of authority.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.12. Amended by Acts 1979, 66th Leg., p. 219, ch. 120, Sec. 14, eff.
May 9, 1979; Acts 1981, 67th Leg., p. 835, ch. 297, Sec. 8, eff. Aug. 31, 1981;
Acts 1993, 73rd Leg., ch. 733, Sec. 31, eff. Jan. 1, 1994.
Art. 1396-8.13. WITHDRAWAL OR
TERMINATION OF FOREIGN CORPORATION
(1)
The name of the corporation and the state or country under the laws of which it
is incorporated.
(2)
That the corporation is not conducting affairs in this State.
(3)
That the corporation surrenders its authority to conduct affairs in this State.
(4)
That the corporation revokes the authority of its registered agent in this
State to accept service of process and consents that service of process in any
action, suit or proceeding based upon any cause of action arising in this State
during the time the corporation was authorized to conduct affairs in this State
may thereafter be made on such corporation by service thereof on the Secretary
of State.
(5)
A street or post office address to which the Secretary of State may mail a copy
of any process against the corporation that may be served on him.
(6)
A statement that all sums due, or accrued, to this State have been paid, or
that adequate provision has been made for the payment thereof.
(7)
A statement that all known creditors or claimants have been paid or provided
for and that the corporation is not involved in or threatened with litigation
in any court in this State, or that adequate provision has been made for the
satisfaction of any judgment, order or decree which may be entered against it
in any pending suits.
B.
The application for withdrawal shall be made on forms promulgated by the
Secretary of State and shall be signed on behalf of the corporation by an
officer, or, if the corporation is in the hands of a receiver or trustee, it
shall be signed on behalf of the corporation by such receiver or trustee.
C.
When the existence of a foreign corporation terminates because of dissolution,
merger, or any other reason, a certificate from the proper officer in the
jurisdiction of the corporation's incorporation evidencing the termination
shall be filed with the Secretary of State.
Acts 1959, 56th Leg., p. 286, ch.
162, art. 8.13. Amended by Acts 1981, 67th Leg., p. 836, ch. 297, Sec. 9, eff.
Aug. 31, 1981; Acts 1987, 70th Leg., ch. 93, Sec. 45, eff. Aug. 31, 1987; Acts
1993, 73rd Leg., ch. 733, Sec. 32, eff. Jan. 1, 1994.
Art. 1396-8.14. FILING OF
APPLICATION FOR WITHDRAWAL
(1)
Endorse on the original and the copy the word "Filed", and the month,
day and year of the filing thereof.
(2)
File the original in his office.
(3)
Issue a certificate of withdrawal to which he shall affix the copy.