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The Walking Dead: Forfeitures and Involuntary

Terminations of Filing Entities

Elizabeth S. Miller

Professor of Law

Baylor University School of Law

Waco, Texas

Collin County Bar Association

Corporate Counsel Section

August 9, 2018

Table of Contents

I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Types of Forfeitures and Involuntary Terminations of Filing Entities. . . . . . . . . . . . . . . . 1

A. Forfeiture of Taxable Entity Under Tax Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Involuntary Termination of Filing Entity by Secretary of State

Under Chapter 11 of Business Organizations Code . . . . . . . . . . . . . . . . . . . . . . . . 1

C. Involuntary Termination of Limited Partnership by Secretary of State

Under Chapter 153 of Business Organizations Code.. . . . . . . . . . . . . . . . . . . . . . . 2

D. Involuntary Termination of Nonprofit Corporation by Secretary of State

Under Chapter 22 of Business Organizations Code.. . . . . . . . . . . . . . . . . . . . . . . . 2

E. Winding Up and Termination Pursuant to Judicial Proceedings. . . . . . . . . . . . . . . 2

F. Termination of LLP Registration as Distinguished

from Winding Up and Termination of Underlying Partnership.. . . . . . . . . . . . . . . 2

G. Forfeiture and Involuntary Termination of Foreign Entity’s

Registration to Transact Business in Texas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. Effects of Forfeitures and Involuntary Terminations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Specific Effects of Forfeiture of Privileges and Charter of

Taxable Entity Under Tax Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. Specific Effects of Involuntary Termination of Filing Entity

Under Chapter 11 of Business Organizations Code.. . . . . . . . . . . . . . . . . . . . . . . 12

C. Specific Effects of Forfeiture and Involuntary Termination of

Limited Partnership Under Chapter 153 of Business Organizations Code. . . . . . 13

D. Specific Effects of Forfeiture and Involuntary Termination of

Nonprofit Corporation Under Chapter 22 of Business Organizations Code. . . . . 14

IV. Some Significant Provisions of Chapter 11 of Business Organizations Code

Applicable to “Terminated Filing Entities” (Including Post-Termination Survival

and Extinguishment of Claims). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

V. Reinstatement After Involuntary Termination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Reinstatement of Taxable Entity After Forfeiture Under Tax Code. . . . . . . . . . . 19

B. Specific Effects of Reinstatement of Taxable Entity Under Tax Code. . . . . . . . . 19

C. Reinstatement of Filing Entity After Involuntary Termination by

Secretary of State Under Chapter 11 of Business Organizations Code. . . . . . . . . 21

D. Specific Effects of Reinstatement of Filing Entity After Involuntary

Termination Under Chapter 11 of Business Organizations Code. . . . . . . . . . . . . 22

E. Reinstatement After Involuntary Termination of Limited Partnership for Failure

to File Periodic Report Under Chapter 153 of Business Organizations Code. . . . 23

F. Reinstatement After Involuntary Termination of Nonprofit Corporation

for Failure to File Periodic Report Under Chapter 22 of Business

Organizations Code .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

G. Court Revocation of Fraudulent Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Appendices:

Voluntary and Involuntary Winding Up and Termination by Act of Entity or Owner (Table)*

Involuntary Termination and Administrative Forfeiture by Secretary of State (Table)*

Secretary of State Form 801 (Application for Reinstatement and Request to Set Aside Tax

Forfeiture)

Secretary of State Form 802 (Periodic Report–Nonprofit Corporation Reinstatement)

Secretary of State Form 803 (Periodic Report–Professional Association Reinstatement)

Secretary of State Form 804 (Periodic Report–Limited Partnership Reinstatement)

Secretary of State Form 811 (Certificate of Reinstatement of Filing Entity Voluntarily or

Involuntarily Terminated Under Chapter 11 of BOC)

Secretary of State Form 814 (Certificate of Reinstatement of Professional Association After Failure

to File Annual Statement)

Comptroller Form 05-359 (Request for Certificate of Account Status to Voluntarily Terminate a

Taxable Entity’s Existence in Texas)

Comptroller Form 05-391 (Tax Clearance Letter Request for Reinstatement)

* The tables included as appendices to this paper were prepared by the author and Carmen I. Flores,

Director, Business and Public Filings Division, Office of the Secretary of State of Texas. The author

would like to acknowledge the invaluable insight provided by Director Flores in connection with the

author’s preparation of these materials and the conference presentation.

The Walking Dead: Forfeitures and Involuntary

Terminations of Filing Entities

I. Introduction

Do either of these sound familiar?

Your client tells you she wants to terminate her entity and she has heard that if she

just ignores the notices from the Comptroller’s officer to file the franchise tax report

the state will terminate her company for her. Your client called the Secretary of

State’s office, and they told her she needs to file documents with the Comptroller and

Secretary of State. The client asks why she should go to all that trouble when the

state will terminate the entity for her if she does nothing?

The client’s existence was forfeited for failure to pay franchise taxes in 2011, but the

company has continued to operate and has a substantial amount of real and personal

property, including intangible property such as receivables. This situation comes to

your attention when you filed suit for the company to collect on a promissory note

executed in favor of the company in 2010 that became due in 2016. The maker of

the note is arguing that the company cannot sue on the note and that the claim is

barred because it was not brought within three years after the company’s existence

was forfeited. Now that the company’s “forfeited existence” has come to your

attention, you and the client have many questions. Can the company collect on the

note? Where does the company stand with respect to its assets, rights, and liabilities?

Does anyone in the company have any personal liability for liabilities incurred in the

business? Can the company reinstate even though it is beyond the three-year post-

termination survival period? What effect will a reinstatement have?

II. Types of Forfeitures and Involuntary Terminations of Filing Entities

A. Forfeiture of Taxable Entity Under Tax Code

The Secretary of State forfeits a taxable entity’s charter or certificate if the Comptroller has

forfeited the entity’s privileges for failure to file a required report or pay franchise tax or penalty and

has notified the Secretary of State that the entity has not revived its privileges within 120 days after

the forfeiture of its privileges. Tax Code §§ 171.251,171.2515, 171.309-171.311, 171.3125.

B. Involuntary Termination of Filing Entity by Secretary of State Under Chapter

11 of Business Organizations Code

The Secretary of State involuntarily terminates the existence of a filing entity for failure to

maintain a registered office or registered agent or failure to timely file a required report (note that

forfeiture of a limited partnership or nonprofit corporation for failure to file its periodic report occurs

under the more specific provisions of Chapter 153 or Chapter 22), pay a fee or penalty, or cure the

nonpayment or dishonor of a filing fee in connection with the filing of a certificate of formation.

BOC §§ 11.251-11.252.

In the past, there has often been confusion about whether a termination arising from failure

to pay franchise taxes was effectuated under the Tax Code or Article 7.01 of the Texas Business

Corporation Act (TBCA), the predecessor to Section 11.251 of the Business Organizations Code

(BOC). Even though Article 7.01 of the TBCA provided that failure to pay franchise taxes was a

ground for involuntary dissolution by the Secretary of State under Article 7.01, it has long been the

practice of the Secretary of State to proceed against a corporation that failed to pay its franchise tax

by forfeiting the corporation’s charter as provided under the Tax Code (after notification by the

Comptroller that the corporation’s privileges had been forfeited) rather than involuntarily dissolving

the corporation under Article 7.01. There should be less confusion under current law in this regard

since, unlike Article 7.01 of the TBCA, Section 11.251 of the BOC does not specify failure to pay

franchise taxes as a ground for involuntary termination under the BOC.

C. Involuntary Termination of Limited Partnership by Secretary of State Under

Chapter 153 of Business Organizations Code

The Secretary of State forfeits a limited partnership’s right to transact business and ultimately

terminates its certificate of formation if the limited partnership fails to file a periodic report required

by Section 153.301 of the BOC. BOC §§ 153.307-153.311. Most limited partnerships are required

to file an annual report in connection with the annual franchise tax filing, but are no longer required

to file periodic reports under the BOC. A limited partnership that is not a taxable entity under the

Tax Code (by virtue of being exempt from the franchise tax as a “passive entity”) will still be subject

to the periodic reporting requirements of the BOC. BOC § 153.301.

D. Involuntary Termination of Nonprofit Corporation by Secretary of State Under

Chapter 22 of Business Organizations Code

The Secretary of State forfeits a nonprofit corporation’s right to conduct affairs and

ultimately involuntarily terminates the nonprofit corporation if the corporation fails to file its

periodic report. BOC §§ 22.360-22.364.

E. Winding Up and Termination Pursuant to Judicial Proceedings

Statutory provisions that provide for winding up and/or termination of entities pursuant to

judicial proceedings include the following: involuntary winding up and termination by judicial

proceeding brought by Attorney General under BOC § 11.301; judicial decree of winding up on

application of partner of partnership or member of limited liability company under BOC § 11.314;

liquidating receivership and judicial decree of involuntary termination under BOC §§ 11.405,

11.412; suit by Attorney General under Tax Code § 171.303 to forfeit charter of taxable entity if

ground exists for forfeiture.

F. Termination of LLP Registration as Distinguished from Winding Up and

Termination of Underlying Partnership

The voluntary or involuntary termination of a partnership’s registration as a limited liability

partnership (LLP) does not terminate the partnership itself or require the winding up of the

partnership. The liability protection provided to the general partners by the LLP registration would

cease upon termination of the LLP registration, but the underlying general partnership or limited

partnership would continue to exist without the LLP feature. A general partnership, even a general

partnership that has registered as an LLP, is not a “filing entity” under the BOC, and the involuntary

termination provisions of the BOC that apply to “filing entities” thus do not apply to a general

partnership. The forfeiture provisions of the Tax Code apply to “taxable entities,” which include

general partnerships that are LLPs or that have an owner that is not a natural person, but the manner

in which Section 171.309 of the Tax Code applies to a general partnership is not clear inasmuch as

a general partnership does not file a charter or certificate with the Secretary of State.

G. Forfeiture and Involuntary Termination of Foreign Entity’s Registration to

Transact Business in Texas

Some of the provisions discussed in this paper apply to foreign entities registered to transact

business in Texas and provide for forfeiture of privileges and termination of a foreign entity’s

registration to transact business in Texas. The focus of this paper is on forfeiture and involuntary

termination provisions as they apply to domestic filing entities.

III. Effects of Forfeitures and Involuntary Terminations

A. Specific Effects of Forfeiture of Privileges and Charter of Taxable Entity Under

Tax Code

Sec. 171.252. EFFECTS OF FORFEITURE. If the corporate privileges of a

corporation are forfeited under this subchapter:

(1) the corporation shall be denied the right to sue or defend in a court of this state;

and

(2) each director or officer of the corporation is liable for a debt of the corporation

as provided by Section 171.255 of this code.

Sec. 171.253. SUIT ON CAUSE OF ACTION ARISING BEFORE FORFEITURE.

In a suit against a corporation on a cause of action arising before the forfeiture of the

corporate privileges of the corporation, affirmative relief may not be granted to the

corporation unless its corporate privileges are revived under this chapter.

Sec. 171.255. LIABILITY OF DIRECTOR AND OFFICERS. (a) If the corporate

privileges of a corporation are forfeited for the failure to file a report or pay a tax or

penalty, each director or officer of the corporation is liable for each debt of the

corporation that is created or incurred in this state after the date on which the report,

tax, or penalty is due and before the corporate privileges are revived. The liability

includes liability for any tax or penalty imposed by this chapter on the corporation

that becomes due and payable after the date of the forfeiture.

(b) The liability of a director or officer is in the same manner and to the same extent

as if the director or officer were a partner and the corporation were a partnership.

officer shows that the debt was created or incurred:

(1) over the director's objection; or

(2) without the director's knowledge and that the exercise of reasonable diligence to

become acquainted with the affairs of the corporation would not have revealed the

intention to create the debt.

(d) If a corporation's charter or certificate of authority and its corporate privileges are

forfeited and revived under this chapter, the liability under this section of a director

or officer of the corporation is not affected by the revival of the charter or certificate

and the corporate privileges.

Sec. 171.2515. FORFEITURE OF RIGHT OF TAXABLE ENTITY TO

TRANSACT BUSINESS IN THIS STATE.

...

(b) The provisions of this subchapter, including Section 171.255, that apply to the

forfeiture of corporate privileges apply to the forfeiture of a taxable entity's right to

transact business in this state.

Sec. 171.302. CERTIFICATION BY COMPTROLLER. After the 120th day after the

date that the corporate privileges of a corporation are forfeited under this chapter, the

comptroller shall certify the name of the corporation to the attorney general and the

secretary of state.

Sec. 171.309. FORFEITURE BY SECRETARY OF STATE. The secretary of state

may forfeit the charter, certificate, or registration of a taxable entity if:

(1) the secretary receives the comptroller's certification under Section 171.302; and

(2) the taxable entity does not revive its forfeited privileges within 120 days after the

date that the privileges were forfeited.

Notwithstanding the language in Section 171.252(1) that appears to preclude a corporation

whose privileges have been forfeited from defending an action, there is case law interpreting the

language to prohibit such a corporation from bringing cross actions but not from merely defending

itself or appealing an adverse judgment. See Zaidi v. Shah, 502 S.W.3d 434 (Tex.App.–Houston [14

Dist.] 2016, pet. denied); Cognata v. Down Hole Injection, Inc., 375 S.W.3d 370

(Tex.App.–Houston [14 Dist.] 2012, pet. denied); Cruse v. O’Quinn, 273 S.W.3d 766, 770

(Tex.App.–Houston [14 Dist.] 2008, pet. denied); Mello v. A.M.F., Inc., 7 S.W.3d 329, 331

(Tex.App.–Beaumont 1999, pet. denied); Midwest Mech. Contractors, Inc. v. Commonwealth

Constr. Co., 801 F.2d 748, 752 (5 Cir. 1986); Bryan v. Cleveland Sand & Gravel Co., 139 S.W.2d

612, 613 (Tex.Civ.App.–Beaumont 1940, writ ref’d); but see Aetna Life Ins. Co. v. Warren Med.

Imaging, LLC, No. 4:13-CV-102, 2014 WL 12768837 (E.D. Tex. Aug. 22, 2014) (stating that

defendant, which had forfeited its entity status in Texas, had no right to defend and that plaintiff was

thus entitled to summary judgment and dismissing defendant’s counterclaims with prejudice because

defendant was not entitled to sue). Courts have long interpreted Section 171.252 and its predecessor

to preclude an entity only from filing suit after forfeiting its right to do business, not to prohibit it

from continuing an action filed before its privileges were forfeited. See Waterway Ranch, LLC v.

City of Annetta, 411 S.W.3d 667 (Tex.App.– Fort Worth 2013, no pet.); Texas Clinical Labs, Inc.

v. Leavitt, 535 F.3d 397 (5 Cir. 2008); Scogin v. Texas Eagle Ford Shale Magazine, Civil No. 2:14-

CV-478, 2016 WL 632031 (S.D. Tex. Feb. 17, 2016).

In Sequel Group, Inc. v. Wilmington Savings Fund Society FSB, No. 3:16-CV-02056-N (BF),

2017 WL 3704833 (N.D. Tex. June 6, 2017), the court pointed to a distinction between a federal

court’s application of Section 171.252 to deprive a forfeited corporation of capacity to sue in a case

based on diversity jurisdiction and a case based on federal question jurisdiction because there is

authority indicating that a federal court need not apply a forum state’s restrictions on a corporation’s

ability to sue in a suit based on federal question jurisdiction. There was no discussion of this

distinction in RN’D Productions, Inc. v. Walt Disney Records Direct, No. H-17-142, 2017 WL

4890022 (S.D. Tex. Oct. 30, 2017), a copyright infringement case in which the court stated that a

corporation’s capacity to sue is determined by the law of its state of formation pursuant to Rule

17(b)(2) of the Federal Rules of Civil Procedure and that the plaintiff thus lacked capacity to sue

under Section 171.252 due to its forfeited status.

A forfeiture of corporate privileges deprives a corporation of the capacity to sue but does not

make a suit void, and the lack of capacity is waived unless challenged by a verified plea. Cognata

v. Down Hole Injection, Inc., 375 S.W.3d 370, 376 (Tex.App.–Houston [14 Dist.] 2012, pet.

denied). If a forfeited corporation’s capacity to sue is challenged, abatement rather than dismissal

is favored, and the corporation is afforded the opportunity to cure the defect by paying the delinquent

taxes or requesting that the forfeiture be set aside. Id.; see also Acme Color Art Priming Co., Inc.

v. Brown, 488 S.W. 2d 507, 507 (Tex. Civ. App.–Dallas 1972, writ ref'd n.r.e.). The denial of the

right to sue or defend applies by its plain terms only to the corporation and does not apply to

directors and officers; the penalty applicable to an officer or director under the forfeiture provision

is personal liability for corporate debts under Section 171.255. Suntide Sandpit, Inc. v. H & H Sand

and Gravel, Inc., No. 13-11-00323-0CV, 2012 WL 2929605 (Tex.App.–Corpus Christi July 19,

2012, pet. denied).

In Guardian Life Insurance Company of America v. Kinder, Civil Action No. H-06-1745,

2008 WL 243707 (S.D. Tex. Jan. 29, 2008), the court held that the right of a corporation whose

charter had been forfeited under the Tax Code to defend itself and bring counterclaims in a suit

brought within the three-year period under TBCA Article 7.12 controlled over the denial of the

forfeited corporation’s right to sue or defend under the Tax Code. See also In re Bros. Oil & Equip.,

Inc., No. 03-17-00349-CV, 2017 WL 3902617 (Tex.App.–Austin Aug. 22, 2017, no pet. h.) (holding

that reinstatement of forfeited corporation enabled it to defend and assert counterclaims regardless

of when claims arose, but noting that corporation terminated by forfeiture of its charter continues to

exist after termination for limited purposes of prosecuting and defending legal actions so that

corporation had right to defend itself and file counterclaims within three years after its termination

under BOC Section 11.356 even if it had not been reinstated); Donald v. Rhone, 489 S.W.3d 584,

587 n. 5 (Tex.App.–Texarkana 2016, no pet.) (noting that trial court’s holding that forfeited

corporation was barred from asserting affirmative claims under Sections 171.252 and 171.253 failed

to take into account BOC Section 11.356, which permits a terminated corporation to prosecute and

defend legal actions after its termination). In another case discussing the interplay between the tax

forfeiture provisions of the Tax Code and Article 7.12 of the TBCA, the court concluded that Section

171.251 of the Tax Code (barring a corporation from suing in a court of this state) rather than Article

7.12A of the TBCA (permitting a dissolved corporation to bring a suit during the three years

following dissolution) controlled where a corporation filed suit after its privileges had been forfeited

by the Comptroller and before its charter was forfeited by the Secretary of State. Sun Packing, Inc.

v. XenaCare Holdings, Inc., 924 F.Supp.2d 749 (S.D. Tex. 2012). It is not clear why the court in Sun

Packing was applying Article 7.12 of the TBCA, which had expired at the time in question, but

presumably the court would have reached the same result applying Section 11.356(a) of the BOC.

Whether a shareholder of a forfeited corporation may sue individually or derivatively on

behalf of the corporation to enforce a right belonging to the corporation has been addressed in a

number of cases over the years. The court in Robinette v. Merrill Lynch, Pierce, Fenner & Smith,

Civil Action Nos. 3:96-CV-2923-D, 3:97-CV-0353-D, 2004 WL 6389547 (N.D. Tex. Nov. 23,

2004), discussed these cases at some length and concluded that the cases established the following

principles: (1) forfeiture of a corporation’s charter does not prohibit stockholders from obtaining

relief from fraudulent and oppressive acts of corporate directors or prevent stockholders from

redressing wrongs that injure their right and interest in corporate assets; (2) suit can only be

maintained by a stockholder for the benefit of a corporation where the cause of action is based on

fraud, ultra vires acts, or negligence of the directors; (3) an incapacitated corporation cannot bring

a cause of action that is an ordinary one that accrues to the corporation in the due course of business,

and such a suit cannot be maintained for the corporation’s benefit by an agent, assignee, or

stockholder; (4) when a corporation has been denied the right to use the courts, property the

corporation holds in trust for its stockholders is not subject to appropriation by third parties, and suit

must be brought by the individual stockholders in their own right; and (5) forfeiture of a corporate

charter does not destroy or forfeit the property of the corporation, and the stockholders, who are the

beneficial owners of the property, are authorized to prosecute or defend such actions in court as are

necessary to protect their property rights. The court did not discuss whether Article 7.12 of the

TBCA (recodified in Sections 11.351-11.359 of the BOC) would alter the reasoning employed in

the cases from which these principles were derived. See Carter v. Harvey, 525 S.W.3d 420

(Tex.App.–Fort Worth 2017, no pet.) (holding claim for equitable adjustment of forfeited

corporation’s real property was derivative rather than direct claim and could not be asserted by

shareholder as successor to forfeited corporation after expiration of statutory three-year wind-up

period, distinguishing between “ascertainable or previously asserted claims that have the character

of a tangible property asset and that have devolved by law or have been assigned to the shareholders”

and “an unasserted breach of contract claim,” and characterizing equitable adjustment claim as

“unfixed, unasserted, inchoate right” at time of corporation’s dissolution). See further discussion in

Section IV infra of the 1993 amendment to Article 7.12 of the TBCA that expanded the definition

of a “dissolved corporation” under Article 7.12 to include a corporation whose charter has been

forfeited under the Tax Code.

Note that once a taxable entity’s privileges are forfeited (the first step in a forfeiture of the

entity’s charter or certificate of formation), Section 171.255 provides that the personal liability of

officers and directors extends back to debts created or incurred after the report, tax, or penalty was

due. Reinstatement of the entity after the forfeiture of its privileges and charter does not extinguish

the liability of a director or officer for debts created or incurred before the reinstatement. Although

the provisions are expressed in corporate terms, they also apply to other taxable entities, such as

limited partnerships and limited liability companies, pursuant to Section 171.2515(b). See Bruce v.

Freeman Decorating Servs., Inc., No. 14-10-00611-CV, 2011 WL 3585619 (Tex.App.–Houston

[14 Dist.] Aug. 15, 2011, pet. denied) (rejecting argument that Section 171.255 only applies to

corporations and applying provision to impose liability on individual listed as director of LLC in

LLC’s Public Information Reports); Thompson v. Flintrock Feeders, Ltd., No. 2:09-CV-0010-J, 2010

WL 11561929 (N.D. Tex. May 10, 2010) (holding that an individual sole member of a member-

managed LLC “was liable for the debts during the time the [LLC’s] charter was suspended”). The

specific inclusion of liability for “any tax or penalty” imposed by Chapter 171 of the Tax Code after

the forfeiture does not limit the scope of the debts for which directors and officers have personal

liability under Section 171.255. The statute expressly provides that officers and directors are liable

for “each debt” incurred under the specified circumstances, in addition to the liability for taxes and

penalties. See Bosch v. Cirro Group, Inc., No. 03-11-01625-CV, 2012 WL 5949481

(Tex.App.–Dallas Nov. 28, 2012, pet. denied).

In MetroPCS v. Fiesta Cell Phone & Dish Network, Inc., No. H-16-3573, 2017 WL 3424990

(S.D. Tex. Aug. 8, 2017), the court concluded that the plaintiff was not entitled to summary

judgment against an individual who was identified as an officer in a forfeited corporation’s Public

Information Report filed in April 2011 where there was no evidence that the individual was an

officer in 2017 when the debt was created. But see Bruce v. Freeman Decorating Servs., Inc., No.

14-10-00611-CV, 2011 WL 3585619 (Tex.App.–Houston [14 Dist.] Aug. 15, 2011, pet. denied)

(holding individual who was listed as director of LLC in LLC’s 2006 Public Information Report

could reasonably be inferred to be director in 2007 at time debt at issue was created or incurred–only

eight months after report was filed–and was thus personally liable for amounts owed for services

provided to LLC after forfeiture).

Over the years, courts have wrestled with when a debt was created or incurred for purposes

of Section 171.255 or its statutory predecessor. See, e.g., Schwab v. Schlumberger Well Surveying

Corp., 154 Tex. 379, 198 S.W.2d 79 (1946) (holding debt was created or incurred when original

promissory note was executed before forfeiture rather than when subsequent renewal notes were

executed); Cain v. State, 882 S.W.2d 515 (Tex.App.–Austin 1994, no writ) (applying rule of strict

construction and holding debt for amounts expended by State of Texas to plug wells was created or

incurred when state expended funds, rather than date of prior authorization by state to expend funds

to plug wells, because debt was unliquidated obligation prior to actual expenditure); River Oaks

Shopping Center v. Pagan, 712 S.W.2d 190 (Tex.App.–Houston [14 Dist.] 1986, writ ref’d n.r.e.)

(holding post-forfeiture breach and damages related back to execution of lease so that debt was

created or incurred on date of execution of lease); Rogers v. Adler, 697 S.W.2d 674

(Tex.App.–Dallas 1985, writ ref’d n.r.e.) (holding debt was created when contract was entered into

prior to forfeiture rather than when judgment was entered after forfeiture); Curry Auto Leasing, Inc.

v. Byrd, 683 S.W.3d 109 (Tex.App.–Dallas 1984, no writ) (holding corporate debts arising from

failure to adhere to leasing contract related back to, and were created or incurred, when rental

agreement was entered into rather than at the time defaults occurred).

Numerous recent cases have examined the issue of when a debt was created or incurred for

purposes of liability of officers and directors under Section 171.255. In Hovel v. Batzri, 490 S.W.3d

132 (Tex. App.–Houston [1 Dist.] 2016, pet. denied), homeowners who had contracted with an LLC

to build their home sued the LLC homebuilder for breach of contract and DTPA violations, and the

LLC’s privileges were forfeited due to failure to pay franchise taxes. The forfeiture occurred after

the suit was filed but before any determination of liability. The plaintiffs obtained a default judgment

against the LLC and then sought to hold the sole manager of the LLC personally liable for the LLC’s

debt under Section 171.255 of the Texas Tax Code. The trial court granted the manager’s motion for

summary judgment, and the court of appeals affirmed because there was no dispute that the contract

was executed pre-forfeiture, and the breach, tortious conduct, and injury occurred pre-forfeiture. The

plaintiffs argued that a debt does not come into existence until it is liquidated, relying in part on a

narrow definition of “debt” adopted by the legislature in 1987. According to the plaintiffs, their

damages remained unliquidated until they obtained the default judgment, and no debt was created

or incurred until the default judgment issued during the forfeiture. Conversely, the LLC manager

argued that the 1987 narrow definition of “debt” is no longer significant because the legislation

enacting it has been repealed. The manager asserted a broad definition of “debt” that includes

unliquidated obligations such that the LLC’s debt was created or incurred before the forfeiture, when

the acts or omissions that gave rise to the plaintiffs’ claim occurred, and the default judgment related

back to that time. Characterizing Section 171.255 as a penal statute such that any ambiguity must

be “strictly construed” in favor of the party penalized by it, the court discussed numerous cases

decided before the adoption of the definition of “debt” in 1987. The pre-1987 case law strictly

construed the statute to treat debts as created or incurred at the time the relevant contractual

obligations were incurred rather than at a later date when the obligations were breached or became

due. Consistent with strict construction and this broad approach to “create or incur,” the pre-1987

case law applied a “relation-back” doctrine. Next the court of appeals discussed the legislature’s

adoption and repeal of a narrow definition of “debt” and the subsequent case law in which the

“relation-back” doctrine was applied inconsistently. The definition of “debt” adopted in the Tax

Code in 1987 was “any legally enforceable obligation measured in a certain amount of money which

must be performed or paid within an ascertainable period of time or on demand.” This definition

precluded corporations from deducting their contingent and unfixed losses from their taxable

corporate surplus and thus increased revenue for the state. The definition also eliminated the

ambiguity in “debt” and precluded courts from giving it a broad meaning. In 2008, the legislature

repealed the definition of “debt” when it amended the Tax Code to adopt an entirely new method of

calculating the franchise tax. After the repeal of the definition, the “relation-back” doctrine re-

emerged, and courts again concluded that a judgment debt is created or incurred when the conduct

or contract occurs, even if the obligation is unliquidated at that time. With the historical context

above in mind, the court of appeals considered whether the trial court erred by concluding that the

LLC’s debt in this case was not a debt created or incurred during forfeiture and, as a result, the

manager did not have individual liability under Section 171.255. Applying the rule of strict

construction and relying on pre-1987 Texas Supreme Court case law defining the terms “created”

and “incurred,” the court of appeals in this case concluded that the debt evidenced by the default

judgment obtained by the plaintiffs against the LLC was created or incurred pre-forfeiture at the time

that the parties established their contractual and other obligations. Thus, the court held that the

manager was not individually liable for the LLC’s debt. The court identified public policy goals of

Section 171.255 and concluded that its interpretation did not run afoul of these public policy

considerations.

In a vigorous and lengthy dissenting opinion in Hovel v. Batzri, Justice Keyes differed in her

interpretation of how the principle of “strict construction” affects the interpretation of Section

171.255 as well as how to interpret the case law defining “debt” for purposes of the statute. Justice

Keyes would have held the manager personally liable in this case on the basis that this was a

judgment debt for wrongful acts of the entity that occurred prior to forfeiture with knowledge of the

manager although the debt was not reduced to a legally enforceable obligation until after forfeiture.

In Justice Keyes’ view, this is one of the types of debts for which officers and directors may be held

personally liable under Section 171.255.

In Taylor v. First Community Credit Union, 316 S.W.3d 863 (Tex.App.–Houston [14 Dist.]

2010, no pet.), the court of appeals held an officer/director of a forfeited automobile dealership

personally liable to a credit union for damages resulting from the corporation’s breach of a dealership

agreement on the basis that the debt was created or incurred when the agreement was breached,

which occurred after the dealership’s franchise tax report was due, rather than when the dealership

entered into the contract in 2003, before the franchise tax was due. The court discussed a number

of other cases dealing with the timing of when a debt is created or incurred for purposes of Section

171.255, and the court found earlier cases in which courts had based the creation or incurrence on

the execution of the original contract were either distinguishable on their facts or impacted by a

definition of “debt” adopted by the legislature in 1987. This definition stated that a “debt” is “any

legally enforceable obligation measured in a certain amount of money which must be performed or

paid within an ascertainable period of time or on demand.” A holding that the execution of the

dealer agreement in this case created a debt under Section 171.255 when no breach had occurred and

no money was owed at that time would have conflicted with the statutory definition, and the court

therefore declined to follow case law pre-dating the definition that would have equated the creation

of the debt with entering into the contract. As discussed in Hovel v. Batzri, the definition relied upon

by the court in Taylor was repealed in 2008 when the new margin tax provisions took effect, and

there is currently no statutory definition of “debt” in Chapter 171 of the Tax Code.

Other recent cases in which the timing of the creation or incurrence of a contractual debt for

purposes of Section 171.255 has been addressed include: Haynes v. Gay, No. 05-17-00136-CV, 2018

WL 774334 (Tex. App.—Dallas Feb. 8, 2018, no pet. h.) (stating that debt arising out of

performance of contract is created or incurred when contract is entered into and holding members

of forfeited LLC were not personally liable for debt at issue because record established debt of

forfeited LLC was created or incurred prior to forfeiture); B Choice Ltd. v. Epicentre Dev. Ass’n

LLC, No. H-14-2096, 2017 WL 1227313 (S.D. Tex. Mar. 3, 2017), report and recommendation

adopted, 2017 WL 1160512 (S.D. Tex. Mar. 29, 2017) (relying on Hovel v. Batzri and “relation

back” doctrine and concluding that forfeited LLC’s liability on promissory note was incurred before

forfeiture of its privileges when it signed promissory note rather than at time of partial summary

judgment after forfeiture); Viajes Gerpa, S.A. v. Fazeli, 522 S.W.3d 524 (Tex.App.–Houston [14

Dist.] 2016, pet. denied) (discussing “relation back” theory and effect of repeal of statutory definition

of “debt” and concluding that debt under MSA was created or incurred before forfeiture even

assuming without deciding that “relation back” theory did not apply because default existed before

forfeiture); Lindley v. Performance Food Grp. of Texas, L.P., No. 04-16-00219-CV, 2016 WL

6242835 (Tex.App.–San Antonio 2016, no pet.) (relying on Schwab v. Schlumberger and

distinguishing cases such as Curry Auto Leasing in which courts held that debts were incurred when

initial contract or lease was signed; holding officer was personally liable for purchases of goods

delivered when corporate charter was forfeited because debt on open account is incurred when goods

or services are delivered or performed); Super Ventures, Inc. v. Chaudry, 501 S.W.3d 121

(Tex.App.–Fort Worth 2016, no pet.) (holding corporate officer personally liable under option

provision of lease amendment because debt for breach of contract is created or incurred when

contract in question is executed and lease amendment at issue was signed after corporation’s

franchise tax report was due and before corporation’s privileges were reinstated); Willis v. BPMT,

LLC, 471 S.W.3d 27 (Tex.App.–Houston [1 Dist.] 2015, no pet.) (relying on Schwab and discussing

effect of repeal of definition of “debt” and holding that debts arising from obligations under lease

agreement were created when lease agreement was entered into rather than later time when amount

of money owed became certain); Bon Amour Int’l, LLC v. Premier Place of Dallas, LLC, No. 05-14-

00816-CV, 2015 WL 4736784 (Tex.App.–Dallas 2015, no pet.) (relying on Beesley v. Hydrocarbon

Separation and holding officer of LLC was not personally liable for past due rent and other charges

due in 2013 under lease executed in 2011 because LLC was in good standing when lease was entered

into); Rossmann v. Bishop Colorado Retail Plaza, L.P., 455 S.W.3d 797 (Tex.App.–Dallas 2015,

pet. denied) (holding debt for damages for breach of lease agreement, including costs of re-letting,

was created or incurred when lease was entered into in 2010, not in 2012 after forfeiture of lessee);

(Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 423 (Tex.App.–Dallas 2012, no pet.)

(discussing other cases in which debt was deemed to be created or incurred when underlying contract

was originally entered into rather than when later breach, judgment, or renewal occurred and

concluding debt was created when employment contract that required yearly payments was signed

rather than when each payment became due); Endsley Elec., Inc. v. Altech, Inc., 378 S.W.3d 15

(Tex.App.–Texarkana 2012, no pet.) (holding there was no evidence that liability was created or

incurred after corporate forfeiture so as to hold officers of electrical subcontractor liable under

Section 171.255 where contract between contractor and subcontractor was signed in October 2008

and completed in March or April 2010, suit was filed on April 14, 2010, subcontractor’s charter was

forfeited under Section 171.309 for failure to pay franchise taxes on January 28, 2011, and judgment

was entered in August 2011).

In Tryco Enterprises, Inc. v. Robinson, 390 S.W.3d 497 (Tex.App.–Houston [1 Dist.] 2012,

pet. dism’d), concurring and dissenting justices expressed differing views on whether James and

Sharon Dixon, the owners and officers of a forfeited corporation, had personal liability under Section

171.255 of the Tax Code with respect to amounts owed by the corporation on a judgment stemming

from violations of the Fair Labor Standards Act (FLSA). The corporation’s charter was forfeited

after the jury verdict and shortly before the judgment was entered. The majority found it unnecessary

to reach the issue of the Dixons’ liability under Section 171.255 because it concluded the record

supported personal liability based on veil-piercing findings. The dissenting justice did not believe

that the record supported personal liability on veil-piercing grounds and thus analyzed whether the

Dixons had personal liability as officers under Section 171.255, i.e., whether the FLSA liability at

issue was a debt “created or incurred in this state after the date on which the report, tax, or penalty

is due and before the corporate privileges are revived.” The dissenting justice concluded that the

debt for unpaid overtime wages was created or incurred on the paydays for the pay periods in which

the overtime labor was performed and that there was thus no liability for these amounts under

Section 171.255 since the paydays preceded the event occasioning the forfeiture of corporate

privileges. On the other hand, the dissent concluded that the Dixons did have personal liability under

Section 171.255 for the statutory penalties and attorney’s fees included in the judgment, reasoning

that these amounts were not created or incurred until the trial court determined the amount of these

awards in its judgment, which was entered after the forfeiture. In a lengthy analysis of the application

of Section 171.255, the concurring justice concluded that the Dixons had personal liability for the

entire amount of damages in the FLSA suit on the basis that the debt was not created until the

judgment was entered after the corporation’s forfeiture. The concurring justice reasoned that the

damages were not the type of debt to which the relation-back doctrine applies and were not a sum

certain (as required under the definition of “debt” in effect at the time) until the judgment in the

FLSA lawsuit was entered.

In Segarra v. Implemetrics Inc., Civil Action No. 4:13-CV-217, 2013 WL 5936602 (S.D.

Tex. Nov. 5, 2013), the court held that the defendant corporation’s “debt” to the plaintiff for

violations of Title VII of the Civil Rights Act of 1964 and the Family and Medical Leave Act would

arise if and when the court entered judgment on the claims. The plaintiff’s allegations of

discrimination spanned from August 2009 until September 2011. The corporation forfeited its

privileges on February 8, 2008, and revived its privileges on October 24, 2011. The plaintiff thus

sought to hold two individuals who were directors and officers of the corporation liable under

Section 171.255 for the corporation’s discrimination. The court likened a judgment debt more to an

administrative penalty than to a contract, and the court stated that administrative penalties have been

found to be created or incurred when assessed, whereas contractual debts are incurred when the

parties enter into the contract regardless of the date of eventual default or judgment. Thus, the court

dismissed the claims against the individual officers and directors and stated that the plaintiff could

sue them to hold them personally liable under Section 171.255 if he obtained a judgment against the

corporation and the corporation’s privileges were forfeited at that time. See also Lucky Dawg

Movers, Inc. v. Wee Haul, Inc., No. 05-10-00222-CV, 2011 WL 5009792 (Tex.App.–Dallas Oct. 21,

2011, no pet.) (addressing whether a judgment rendered after corporate privileges were reinstated

based on conduct that occurred while the privileges were forfeited could constitute a “debt” (under

the repealed definition of “debt” that was in effect at the time of the suit) for which a director could

be personally liable and concluding that the damages sustained as a result of the corporation’s

deceptive acts were assessed only when the jury returned its verdict, not at the time of the acts).

In Anderson Petro-Equipment, Inc. v. State, No. 03-13-00176-CV, 2013 WL 5858010

(Tex.App.–Austin Oct. 22, 2013, pet. denied), the State of Texas sought to impose liability on a

corporate officer for money spent by the state to plug a well drilled by the corporation. The

corporation ceased production on the well in 2002, and the corporation became noncompliant with

Texas law when it failed to plug the well within 12 months of ceasing production. The corporation’s

charter was forfeited for failure to pay its franchise taxes in 2005. In 2006, the Texas Railroad

Commission sent notice to the corporation to plug the well, and the Commission spent state funds

to plug the well in 2009. Later in 2009, the state sued the corporation and an individual officer to

recover the money spent to plug the well. The state relied on Section 171.255 to impose liability on

the officer. The officer argued that his liability was extinguished when the corporation forfeited its

charter. (The court noted that the officer did not contend that Section 171.255 can never be used to

impose individual liability for plugging costs, but limited his contention to whether his liability was

extinguished when the corporation’s charter was forfeited assuming such potential liability exists.)

The officer conceded that, for purposes of Section 171.255, the debt was created or incurred long

after the corporation’s taxes were due and its privileges were forfeited, but the officer argued that

his liability, if any, ceased to exist once the corporation’s charter was forfeited. The court

understood the officer’s argument to be that because a corporation could not be liable for a post-

dissolution claim under Article 7.12 of the TBCA, neither could an individual officer of the

corporation. (The court of appeals concluded earlier in the opinion that the state’s claim in this case,

though not ripe at the time the corporation’s charter was forfeited, was nevertheless an “existing

claim” as defined in Article 7.12 at the time of the corporation’s dissolution because the facts giving

rise to the cause of action occurred before the charter was forfeited. See further discussion infra of

the interaction between the provisions of the TBCA/BOC and the Tax Code.) The court stated that

the officer’s argument seemed to conflate the requirements for corporate liability contained in Article

7.12 of the TBCA, which addresses the corporation’s liability for “existing claims,” with the Tax

Code requirements for an officer’s individual liability for corporate “debts.” The court pointed out

that the Tax Code does not make any reference to forfeiture of the corporate charter, and the court

found no language in the statute suggesting that an officer is liable only for debts incurred during the

window of time after the corporation has failed to pay its franchise taxes but before it has forfeited

its charter. The court stated that Section 171.255(a) clearly and unambiguously states that an officer

is liable for debts incurred during the time period after the relevant tax was due (for which the

privileges are later forfeited) and before the privileges are revived. Because the corporate debt for

which the officer was liable in this case was created or incurred after the tax was due and the

privileges were never revived, the officer was personally liable.

A bankruptcy court has held that claims against directors and officers arising under Section

171.255 of the Tax Code based on forfeiture of corporate privileges are direct claims belonging to

the holders of claims rather than derivative claims of the debtor. In re University General Hosp. Sys.,

Inc., No. 15-31086-H3-11, 2016 WL 1620219 (Bankr. S.D. Tex. Apr. 20, 2016). Thus, the assertion

of such claims did not violate the provision of a Chapter 11 bankruptcy plan that enjoined the

assertion of “derivative claims, including claims of third parties asserting alter ego claims, fraudulent

transfer claims, guaranty claims, or any type of successor liability based on acts or omissions of the

Debtors.”

Some courts have concluded that “debts” for which directors and officers may have personal

liability under Section 171.255 do not include tort liability based on negligence. Williams v. Adams,

74 S.W.3d 437 (Tex.App.–Corpus Christi 2002, pet. denied); Suntide Sandpit, Inc. v. H & H Sand

and Gravel, Inc., No. 13-11-00323-0CV, 2012 WL 2929605 (Tex.App.–Corpus Christi July 19,

2012, pet. denied). In Nationwide Property & Casualty Insurance Company v. Revive Mfg., LLC,

No. 02–17–00148–C, 2018 WL 2248667 (Tex.App.–Fort Worth May 17, 2018, no pet. h.), the court

noted that “[o]nly a few courts have addressed whether section 171.255 applies to ‘contractual

strangers with only tort claims being asserted,’” characterizing the issue as a “seemingly

complicated, unresolved statutory-construction issue.”

Under Section 171.255(c), a director or officer is not liable for a debt of the corporation if

the director or officer shows that the debt was created or incurred over the director’s objection or

without the director’s knowledge and that the exercise of reasonable diligence to become acquainted

with the corporation’s affairs would not have revealed the intention to create the debt. Courts have

concluded that a director relying on an exception to liability under this provision has the burden of

proof, i.e., that the exceptions are affirmative defenses. See Priddy v. Rawson, 282 S.W.3d 588

(Tex.App.–Houston [14 Dist.] 2009, pet. denied); In re Trammell, 246 S.W.3d 815

(Tex.App.–Dallas 2008, no pet.); PACCAR Fin. Corp. v. Potter, 239 S.W.3d 879 (Tex.App.–Dallas

2007, no pet.); see also Surber v. Woy, No. 02-12-00452-CV, 2014 WL 1704258 (Tex.App.–Fort

Worth Apr. 30, 2014, no pet.).

B. Specific Effects of Involuntary Termination of Filing Entity Under Chapter 11

of Business Organizations Code

Sec. 11.252. CERTIFICATE OF TERMINATION. (a) If termination of a filing

entity's existence is required, the secretary of state shall:

(1) issue a certificate of termination; and

(2) deliver a certificate of termination by regular or certified mail to the filing entity

at its registered office or principal place of business.

(b) The certificate of termination must state:

(1) that the filing entity has been involuntarily terminated; and

(2) the date and cause of the termination.

terminated on the issuance of the certificate of termination by the secretary of state.

C. Specific Effects of Forfeiture and Involuntary Termination of Limited

Partnership Under Chapter 153 of Business Organizations Code

Sec. 153.309. EFFECT OF FORFEITURE OF RIGHT TO TRANSACT BUSINESS.

(a) Unless the right of the limited partnership to transact business is revived in

accordance with Section 153.310:

(1) the limited partnership may not maintain an action, suit, or proceeding in a court

of this state; and

(2) a successor or assignee of the limited partnership may not maintain an action,

suit, or proceeding in a court of this state on a right, claim, or demand arising from

the transaction of business by the limited partnership in this state.

(b) The forfeiture of the right to transact business in this state does not:

(1) impair the validity of a contract or act of the limited partnership; or

(2) prevent the limited partnership from defending an action, suit, or proceeding in

a court of this state.

limited partner.

Sec. 153.311. TERMINATION OF CERTIFICATE OR REVOCATION OF

REGISTRATION AFTER FORFEITURE. (a) The secretary of state may terminate

the certificate of formation of a domestic limited partnership, or revoke the

registration of a foreign limited partnership, if the limited partnership:

(1) forfeits its right to transact business in this state under Section 153.307; and

(2) fails to revive that right under Section 153.310.

(b) Termination of the certificate or revocation of registration takes effect without

judicial ascertainment.

record kept in the secretary's office relating to the limited partnership.

(d) On termination or revocation, the status of the limited partnership is changed to

inactive according to the records of the secretary of state. The change to inactive

status does not affect the liability of a limited partner.

In Collin County v. Hixon Family Partnership, Ltd., 365 S.W.3d 860 (Tex.App.–Dallas 2012,

pet. denied), the court of appeals held that the forfeiture of a limited partnership’s right to transact

business and cancellation of its certificate did not prevent it from litigating in a condemnation

proceeding initiated by the county because the partnership was the defendant, and Section

153.309(b)(2) does not prevent a limited partnership from defending an action, suit, or proceeding

in a Texas court. See also RK Fin. Grp., L.P. v. Allstate Sec. Indus., No. 07-12-00063-CV, 2013 WL

2475561 (Tex.App.–Amarillo June 6, 2013, no pet.) (stating that forfeiture of a limited partnership’s

right to do business prevents the limited partnership from maintaining an action, suit, or proceeding

in Texas but does not prevent the limited partnership from defending an action, suit, or proceeding,

and rejecting the contention that the ability to defend applies only when the forfeiture is remedied

within 120 days). In In re Kilroy, 357 B.R. 411 (Bankr. S.D. Tex. 2006), the court noted that limited

partners would not be able to bring a derivative suit on behalf of a limited partnership whose right

to transact business had been forfeited due to its failure to file its periodic report, but the court in In

re Immobiliere Jeuness Establissement, 422 S.W.3d 909 (Tex.App.–Houston [14 Dist.] 2014, no

pet.), concluded that Section 153.309 did not preclude a limited partner from maintaining a

derivative suit on behalf of a limited partnership whose right to transact business had been forfeited.

In Mandarino v. Sherwood Lane Investments, LLC, No. 01-15-00192-CV, 2016 WL 4034568

(Tex.App.–Houston [1 Dist.]July 26, 2016, no pet.), the court held that the forfeiture of a limited

partnership’s right to transact business and the cancellation of its certificate of limited partnership

did not prevent the partnership from entering into a valid contract. The court stated that the

provisions of the Texas Revised Limited Partnership Act addressing the effect of a limited

partnership’s forfeiture of the right to transact business for failure to file a periodic report only

prevented the partnership from maintaining an action, suit, or proceeding in the courts and “did not

prevent the partnership from forming new, valid contracts.”

D. Specific Effects of Forfeiture and Involuntary Termination of Nonprofit

Corporation Under Chapter 22 of Business Organizations Code

Sec. 22.362. EFFECT OF FORFEITURE. (a) Unless the right of the corporation to

conduct affairs in this state is revived under Section 22.363:

(1) the corporation may not maintain an action, suit, or proceeding in a court of this

state; and

(2) a successor or assignee of the corporation may not maintain an action, suit, or

proceeding in a court of this state on a right, claim, or demand arising from the

conduct of affairs by the corporation in this state.

(b) This section does not affect the right of an assignee of the corporation as:

(1) the holder in due course of a negotiable promissory note, check, or bill of

exchange; or

(2) the bona fide purchaser for value of a warehouse receipt, stock certificate, or other

instrument negotiable by law.

(1) impair the validity of a contract or act of the corporation; or

(2) prevent the corporation from defending an action, suit, or proceeding in a court

of this state.

Sec. 22.364. FAILURE TO REVIVE; TERMINATION OR REVOCATION. (a) The

failure of a corporation that has forfeited its right to conduct affairs in this state to

revive that right under Section 22.363 is grounds for:

(1) the involuntary termination of the domestic corporation; or

(2) the revocation of the foreign corporation's registration to transact business in this

state.

(b) The termination or revocation takes effect, without judicial action, when the

secretary of state enters on the record of the corporation filed in the office of the

secretary of state the word "forfeited" and the date of forfeiture and cites this chapter

as authority for that forfeiture.

In Bahr v. Emerald Bay Property Owners Association, Inc., No. 09-16-00325-CV, 2018 WL

2341312 (Tex.App.–Beaumont May 24, 2018, no pet. h.), the court addressed the effect of a property

owners association’s involuntary dissolution and reinstatement as a nonprofit corporation. The court

held that amended deed restrictions adopted by the association in 1999 were not impaired by the

association’s previous involuntary dissolution as a nonprofit corporation in 1995. The court stated

that a corporation may not maintain an action, suit, or proceeding in court while under the effect of

a forfeiture, but the association was reinstated as a corporation in 2014 prior to the commencement

of the underlying lawsuit in the case.

IV. Some Significant Provisions of Chapter 11 of Business Organizations Code Applicable

to “Terminated Filing Entities” (Including Post-Termination Survival and

Extinguishment of Claims)

Sec. 11.001. DEFINITIONS. In this chapter:

(1) "Claim" means a right to payment, damages, or property, whether liquidated or

unliquidated, accrued or contingent, matured or unmatured.

...

(3) "Existing claim" with respect to an entity means:

(A) a claim that existed before the entity's termination and is not barred by

limitations; or

(B) a contractual obligation incurred after termination.

(4) "Terminated entity" means a domestic entity the existence of which has been:

(A) terminated in a manner authorized or required by this code, unless the entity has

been reinstated in the manner provided by this code; or

(B) forfeited pursuant to the Tax Code, unless the forfeiture has been set aside.

(5) "Terminated filing entity" means a terminated entity that is a filing entity. [“Filing

entity” includes a domestic corporation, limited partnership, limited liability

company, and professional association. BOC § 1.002(22).]

...

Sec. 11.351. LIABILITY OF TERMINATED FILING ENTITY. A terminated filing

entity is liable only for an existing claim.

Sec. 11.356. LIMITED SURVIVAL AFTER TERMINATION. (a) Notwithstanding

the termination of a domestic filing entity under this chapter, the terminated filing

entity continues in existence until the third anniversary of the effective date of the

entity's termination only for purposes of:

(1) prosecuting or defending in the terminated filing entity's name an action or

proceeding brought by or against the terminated entity;

(2) permitting the survival of an existing claim by or against the terminated filing

entity;

(3) holding title to and liquidating property that remained with the terminated filing

entity at the time of termination or property that is collected by the terminated filing

entity after termination;

(4) applying or distributing property, or its proceeds, as provided by Section 11.053;

and

(5) settling affairs not completed before termination.

(b) A terminated filing entity may not continue its existence for the purpose of

continuing the business or affairs for which the terminated filing entity was formed

unless the terminated filing entity is reinstated under Subchapter E.

brought before the expiration of the three-year period after the date of the entity's

termination and the claim was not extinguished under Section 11.359, the terminated

filing entity continues to survive for purposes of:

(1) the action until all judgments, orders, and decrees have been fully executed; and

(2) the application or distribution of any property of the terminated filing entity as

provided by Section 11.053 until the property has been applied or distributed.

Sec. 11.359. EXTINGUISHMENT OF EXISTING CLAIM. (a) Except as provided

by Subsection (b), an existing claim by or against a terminated filing entity is

extinguished unless an action or proceeding is brought on the claim not later than the

third anniversary of the date of termination of the entity.

...

In Texas Clinical Labs, Inc. v. Leavitt, 535 F.3d 397, 404-05 (5 Cir. 2008), the court pointed

out that a Texas corporation that was involuntarily dissolved under the TBCA for failure to maintain

a registered agent in Texas had three years in which to bring a cause of action on an existing claim

under Article 7.12 of the TBCA. The involuntarily dissolved corporation’s claim arose two months

before the corporation was dissolved, and an administrative action on the claim was initiated within

three years after the dissolution. Thus, the dissolved corporation had the right to prosecute the

proceedings to conclusion.

The relationship between the above provisions in Chapter 11 and provisions outside of

Chapter 11 relating to involuntary terminations is not entirely clear. For example, references in

Section 11.356 to “termination of a domestic filing entity under this chapter” and reinstatement

“under Subchapter E” imply the provisions contemplate entities terminated or reinstated under those

provisions, but other provisions that simply refer to a “terminated filing entity” along with the broad

definition of “terminated entity” suggest application of these provisions to entities that have been

involuntarily terminated under provisions outside of Chapter 11. As is further discussed below,

whether the reinstatement of an entity relates back or has any retroactive effect is a matter that is not

addressed by statute in situations other than the reinstatement of a voluntarily or involuntarily

terminated entity within three years of its termination under BOC Section 11.206 or 11.253(d).

Provisos in the definition of a “terminated entity” (i.e., “unless the entity has been reinstated in the

manner provided in this code” and “unless the forfeiture has been set aside”) might be read to avoid

the operation of some of the provisions applicable to a “terminated entity” in the case of an entity

that has been reinstated. In Hyde v. Hawk Eyeglasses, No. 07-16-00357-CV, 2018 WL 3384870

(Tex.App.–Amarillo July 11, 2018, no pet. h.), the court addressed the argument that the plaintiff’s

claims against a nonprofit corporation were barred by BOC § 11.356(a) because the nonprofit

corporation had been involuntarily dissolved and the claims were not brought within three years of

the corporation’s termination. Documents attached to the parties’ briefs—which generally are not

considered part of the appellate record—showed that, although the nonprofit corporation was

involuntarily dissolved for failure to file a required report in 2007, the corporation was reinstated a

year later upon filing of the report. The court stated that the record did not show that the nonprofit

corporation’s existence was terminated and not reinstated within three years. In a footnote, the court

pointed out that a “terminated corporation” is defined by BOC § 11.001(4) as a corporation that has

been terminated as authorized or required by the BOC, “unless the entity has been reinstated.” The

court also cited BOC § 11.253 regarding the process and effect of reinstatement. Thus, even without

considering the documents appended to the appellate briefs, the court held that the trial court did not

abuse its discretion in overruling a motion for new trial on the judgment against the corporation.

In 1993, the Texas Business Corporation Act (TBCA) was amended to include a corporation

whose charter was forfeited pursuant to the Tax Code in the definition of a “dissolved corporation”

for purposes of Article 7.12 of the TBCA. The provisions of Article 7.12 of the TBCA have been

carried forward in Sections 11.001, 11.351, and 11.356-11.359 of the BOC and apply to all filing

entities. Before 1993, a corporation whose charter was forfeited under the Tax Code was not

considered a dissolved corporation, and TBCA Article 7.12 thus did not apply to a forfeited

corporation. Benham v. Benham, 726 S.W.2d 618 (Tex.App.–Amarillo 1987, writ ref’d n.r.e.).

Although a forfeited corporation was denied the right to do business and to sue in any court in Texas,

its legal existence was not extinguished because it had a statutory right to be reinstated. See Damico

v. Mountain River Owners’ Ass’n, Inc., No. 11-98-00044-CV, 1999 WL 33747845 (Tex.

App.–Eastland July 29, 1999, no pet.) (not designated for publication) (holding amendment to TBCA

Article 7.12 did not apply to 1978 forfeiture of corporation and 1984 assignment of forfeited

corporation’s rights because the events predated the amendment and discussing and applying pre-

amendment law regarding forfeiture); see also Texas Clinical Labs, Inc. v. Leavitt, 535 F.3d 397,

405 n. 13 (5 Cir. 2008) (pointing out that before TBCA Article 7.12 was amended in 1993, a

forfeited corporation was not considered to be a “dissolved corporation” and was not entitled to the

benefit of the three-year survival statute). With the amendment of the definition of a “dissolved

corporation” in TBCA Article 7.12 in 1993, Article 7.12 became applicable to a corporation whose

charter was forfeited under the Tax Code, unless the forfeiture was set aside. This amendment also

applied to LLCs by virtue of Article 8.12 of the Texas Limited Liability Company Act, which made

TBCA Article 7.12 applicable to LLCs. The scope of the successor provisions in Chapter 11 of the

BOC was further broadened to apply to all filing entities. See BOC §§ 11.001, 11.351, 11.356-

11.359. Confusion regarding the interaction of the forfeiture provisions of the Tax Code (which

provide for two steps: forfeiture of the entity’s privileges followed by forfeiture of the charter) and

the dissolution or termination provisions of the TBCA or BOC is understandably evident in some

cases given this history. See, e.g., Brown v. JNH Invs., Inc., No. 4:16-CV-00675-ALM-CAN, 2017

WL 3205716 (E.D. Tex. July 7, 2017) (holding that printout of Secretary of State’s website showing

entity forfeited its existence in 1995 pursuant to tax forfeiture was competent summary judgment

evidence, but concluding such evidence did not establish entity should be dismissed as defendant

since Section 171.252 merely precludes entity from suing and exposes entity’s officers and directors

to liability; stating that proof of forfeiture did not necessarily show proof of dissolution and that

forfeiture of privileges in 1995 did not establish whether corporate existence was ever dissolved).

Since the 1993 amendments, courts in a number of cases have applied the rules in TBCA

Article 7.12 or BOC Sections 11.351-11.359 regarding the corporate existence and viability of

claims by and against corporations whose charters have been forfeited under the Tax Code. See, e.g.,

Boudreaux v. C J R Framing Inc., 2018 WL 3620714, __ Fed. App’x __ (5 Cir. July 27, 2018)

(claim based on accident that occurred almost two years after corporation’s forfeiture under Texas

Tax Code was not “existing claim” that could be asserted against corporation or, assuming plaintiff

had existing claim, plaintiff’s claim was extinguished because he did not sue within three years of

corporation’s dissolution); Carter v. Harvey, 525 S.W.3d 420 (Tex.App.–Fort Worth 2017, no pet.)

(claim for equitable adjustment of forfeited corporation’s real property was derivative rather than

direct claim and could not be asserted by shareholder as successor to forfeited corporation after

expiration of statutory three-year wind-up period, distinguishing between “ascertainable or

previously asserted claims that have the character of a tangible property asset and that have devolved

by law or have been assigned to the shareholders” and “an unasserted breach of contract claim,” and

characterizing equitable adjustment claim as “unfixed, unasserted, inchoate right” at time of

corporation’s dissolution); Atcco Mortg., Inc. v. Beasley, No. 11-14-0006-CV, 2016 WL 1274129

(Tex.App.–Eastland Mar. 31, 2016, no pet.) (corporation could not assert claim based on default

judgment obtained by it before forfeiture because claim was extinguished under BOC Section 11.359

three years after forfeiture); Cohen Acquisition Corp. v. EEPB, P.C., No. 14-14-00330-CV, 2015

WL 2404869 (Tex.App.–Houston [14 Dist.] May 19, 2015, pet. denied)(claim against forfeited

corporation was extinguished under BOC Section 11.359 three years after forfeiture); Anderson

Petro- Equip., Inc. v. State, No. 03-13-00176-CV, 2013 WL 5858010 (Tex.App.–Austin 2013, pet.

denied) (state’s claim to recover funds spent to plug well drilled by corporation was “existing claim”

under Article 7.12 of the TBCA even though claim was not ripe when corporation’s charter was

forfeited under Tax Code because actions giving rise to state’s claim (failure to plug well within 12

months after ceasing production) occurred before corporation’s dissolution); Endsley Elec., Inc. v.

Altech, Inc., 378 S.W.3d 15 (Tex.App.–Texarkana 2012, no pet.) (corporation whose charter was

forfeited under Tax Code in January 2011 continued to exist under Section 11.356 of the BOC for

purposes of defending suit brought against it in April 2010); Anderson Petro-Equip., Inc. v. State,

317 S.W.3d 812 (Tex.App.–Austin 2010, pet. denied) (state’s claims against forfeited corporation

to enforce orders issued after forfeiture and collect clean-up costs incurred in plugging wells after

forfeiture were “existing claims,” albeit in contingent and unmatured form, prior to forfeiture, and

thus could be asserted within three years after forfeiture); First Trust Corp. TTEE FBO v. Edwards,

172 S.W.3d 230 (Tex.App.–Dallas 2005, pet. denied) (forfeited corporation continued to exist for

three years for limited purposes under TBCA Article 7.12 and its assets remained vested in

corporation so that corporate form could not be disregarded based only on forfeiture of corporate

charter); Emmett Props., Inc. v. Halliburton Energy Servs., Inc., 167 S.W.3d 365

(Tex.App.–Houston [14th Dist.] 2005, pet. denied) (corporation could not sue on claim that existed

before forfeiture and was not asserted within three years after forfeiture because claim was barred

by TBCA Article 7.12); Landrum v. Thunderbird Speedway, 97 S.W.3d 756 (Tex.App.– Dallas

2003, no pet.) (corporation could not be held liable on wrongful death claim based on accident

occurring sixteen months after tax forfeiture of corporation because claim was not “existing claim”

that could be asserted against dissolved corporation pursuant to TBCA Article 7.12); Sun Packing,

Inc. v. XenaCare Holdings, Inc., 924 F.Supp.2d 749 (S.D. Tex. 2012) (Section 171.251 of Tax Code

(barring corporation from suing in court of this state) rather than TBCA Article 7.12A (permitting

dissolved corporation to bring suit during three years following dissolution) controlled where

corporation filed suit after its privileges had been forfeited by the Comptroller and before its charter

was forfeited by the Secretary of State); In re Am. Heartland Sagebrush Sec. Invs., Inc., 334 B.R.848

(Bankr. N.D. Tex. 2005) (corporation that had been forfeited under Tax Code more than ten years

earlier could not file Chapter 7 bankruptcy because its existence as a dissolved corporation for

winding up purposes only continued for three years following its dissolution); In re ABZ Ins. Servs.,

Inc., 245 B.R. 255 (Bankr. N.D. Tex. 2000) (corporation that had been forfeited under Tax Code was

eligible for bankruptcy relief under Chapter 7 where proceeding was filed within three years of

dissolution because TBCA Article 7.12 provides that dissolved corporation continues its existence

for three years following dissolution for limited purposes of liquidation and distribution of assets);

Construtodo, S.A. de C.V. v. Conficasa Holdings, Inc., Civil Action No. H-12-3026, 2014 WL

427114 (S.D. Tex. Jan. 31, 2014) (relying on Tax Code and three-year survival provision of BOC

Section 11.356 and dismissing corporation’s suit because corporation’s foreign registration was

forfeited more than three years before suit was filed (it apparently not having been raised that the

definition of a “terminated entity” includes only domestic entities)); Guardian Life Ins. Co. of Am.

v. Kinder, Civil Action No. H-06-1745, 2008 WL 243707 (S.D. Tex. Jan. 29, 2008) (forfeited

corporation’s right to defend itself and bring counterclaims in suit brought within three-year period

under TBCA Article 7.12 controlled over denial of forfeited corporation’s right to sue or defend

under Tax Code). In most of these cases, the forfeited corporations had not been reinstated so that

the question of the effect of a reinstatement did not arise.

As noted below, TBCA Article 7.12, as amended in 1993, and the successor provisions of

the BOC have been applied to preclude a corporation that was reinstated under the Tax Code after

the expiration of the three-year survival period from suing on pre-forfeiture claims that were not

brought within the three-year survival period. Emmett Props., Inc. v. Halliburton Energy Servs.,

Inc., 167 S.W.3d 365 (Tex.App.–Houston [14th Dist.] 2005, pet. denied); Atcco Mortg., Inc. v.

Beasley, No. 11-14-0006-CV, 2016 WL 1274129 (Tex.App.–Eastland Mar. 31, 2016, no pet.).

Similarly, pre-forfeiture claims against a reinstated entity have been held to be barred where the

reinstatement did not occur within three years after its forfeiture. Cohen Acquisition Corp. v. EEPB,

P.C., No. 14-14-00330-CV, 2015 WL 2404869 (Tex.App.–Houston [14 Dist.] May 19, 2015, pet.

denied).

V. Reinstatement After Involuntary Termination

A. Reinstatement of Taxable Entity After Forfeiture Under Tax Code

The BOC specifies that “a filing entity whose certificate of formation has been forfeited

under the provisions of the Tax Code must follow the procedures of the Tax Code to reinstate the

certificate of formation.” BOC § 11.254. Thus, the reinstatement provisions of the Tax Code rather

than the provisions of Chapter 11 of the BOC govern reinstatement after a tax forfeiture. See Tex.

Att’y Gen. Op. M-600 (1970).

An entity whose certificate of formation has been forfeited under the Tax Code for failure

to file a report or pay franchise tax may be reinstated upon request of a “stockholder, director, or

officer of the corporation at the time of the forfeiture” (see SOS Form 801 for the equivalent persons

in non-corporate taxable entities) if each delinquent report has been filed and any delinquent tax,

penalty, and interest has been paid. Tax Code §§ 171.312-171.313. There is no deadline or time

limit for a reinstatement under the Tax Code.

B. Specific Effects of Reinstatement of Taxable Entity Under Tax Code

Sec. 171.255. LIABILITY OF DIRECTOR AND OFFICERS.

...

(d) If a corporation's charter or certificate of authority and its corporate privileges are

forfeited and revived under this chapter, the liability under this section of a director

or officer of the corporation is not affected by the revival of the charter or certificate

and the corporate privileges.

Sec. 171.314. CORPORATE PRIVILEGES AFTER FORFEITURE BY

SECRETARY OF STATE IS SET ASIDE. If the secretary of state sets aside under

this chapter the forfeiture of a corporation's charter or certificate of authority, the

comptroller shall revive the corporate privileges of the corporation.

A number of cases have held that reinstatement after forfeiture under the Tax Code “relates

back” to the date of the forfeiture. E.g., Hinkle v. Adams, 74 S.W.3d 189 (Tex.App.–Texarkana

2002, no pet.); Mello v. A.M.F. Inc., 7 S.W.3d 329 (Tex.App.–Beaumont 1999, pet. denied); G.

Richard Goins Const. Co., Inc. v. S.B. McLaughlin Assocs., Inc., 930 S.W.2d 124 (Tex.App.–Tyler

1996, writ denied); M & M Const. Co. v. Great Am. Ins. Co., 747 S.W.2d 552 (Tex.App.–Corpus

Christi 1988, no writ); Bluebonnet Farms, Inc. v. Gibraltar Savings Ass’n, 618 S.W.2d 81

(Tex.Civ.App.–Houston [1 Dist.] 1980, writ ref’d n.r.e.).

As discussed above, in 1993, Article 7.12F of the TBCA was amended to provide that the

term “dissolved corporation” in Article 7.12 includes, in addition to corporations voluntarily or

involuntarily dissolved under the TBCA, a corporation whose charter has been forfeited pursuant to

the Tax Code, unless the forfeiture has been set aside. This approach has been carried forward in

Section 11.001(4) of the BOC, which defines a “terminated entity” to include not only a domestic

entity terminated under the BOC, but a domestic entity that has been forfeited pursuant to the Tax

Code, unless the forfeiture has been set aside. Article 7.12 of the TBCA provided for the survival

of a dissolved corporation for a period of three years for purposes of taking various actions, including

suing on and defending “existing claims” as that term was defined by the statute. The provisions of

Article 7.12 of the TBCA have been carried forward in Sections 11.001, 11.351, and 11.356-11.359

of the BOC and apply to all filing entities.

In cases decided after the 1993 amendment, courts have generally continued to pronounce

that reinstatement after forfeiture of a corporation’s charter under the Tax Code relates back and

operates retroactively without discussion of the 1993 amendment. Thomas v. California Golden

Coast, LLC, No. 01-15-01046-CV, 2017 WL 2117540 (Tex.App.–Houston [1 Dist.] May 16, 2017,

no pet. h.); Marshall Feature Recognition, LLC v. Pepsi-Cola Co., No. 6:12-cv-00956-JRG-RSP,

2015 WL 5912672 (E.D. Tex. Sep. 27, 2015); Ocram, Inc. v. Bartosh, No. 01-11-00793-CV, 2012

WL 4740859 (Tex.App.–Houston [1 Dist.] Oct. 4, 2012, no pet.); Parker County’s Squaw Creek

Downs, L.P. v. Watson, Nos. 2-08-255-CV, 2-08-354-CV, 2009 WL 885941 (Tex.App.–Fort Worth

Apr. 2, 2009, pet. denied); Phillips Staffing Servs., Inc. v. Spherion Atlantic Workforce, L.L.C., No.

4:05-CV-407, 2007 WL 922149 (E.D. Tex. March 23, 2007); Hinkle v. Adams, 74 S.W.3d 189

(Tex.App.–Texarkana 2002, no pet.); Mello v. A.M.F. Inc., 7 S.W.3d 329 (Tex.App.–Beaumont

1999, pet. denied); see also Sun Packing, Inc. v. XenaCare Holdings, Inc., 924 F.Supp.2d 749 (S.D.

Tex. 2012) (acknowledging that reinstatement and revival of corporate privileges related back for

purposes of state law, but concluding diversity of citizenship must be analyzed as of date suit was

filed without regard to post-filing reinstatement).

In Emmett Properties, Inc. v. Halliburton Energy Services, Inc., 167 S.W.3d 365 (Tex.

App.–Houston [14th Dist.] 2005, pet. denied), the court of appeals held that Article 7.12, as amended

in 1993, precluded a corporation that was reinstated under the Tax Code four and one-half years after

its forfeiture from suing on pre-forfeiture claims that were not brought within the three-year survival

period. Thus, the court did not give the reinstatement retroactive effect in that respect. See also Atcco

Mortg., Inc. v. Beasley, No. 11-14-0006-CV, 2016 WL 1274129 (Tex. App.–Eastland Mar. 31, 2016,

no pet. ) (holding default judgment obtained against individual in 1988 was “claim” within meaning

of BOC Section 11.001(1); judgment was extinguished pursuant to BOC Section 11.359(a) in 2009,

three years after forfeiture of judgment creditor’s corporate charter in 2006; reinstatement of

corporate charter in 2013, seven years after forfeiture, did not revive extinguished judgment; and trial

court thus did not err in dismissing judgment creditor’s claim against deceased judgment debtor’s

estate even though judgment creditor had reinstated its corporate charter in order to assert claim in

probate proceeding); Cohen Acquisition Corp. v. EEPB, P.C., No. 14-14-00330-CV, 2015 WL

2404869 (Tex.App.–Houston [14 Dist.] 2015, pet. denied) (relying on Emmett Properties and

holding plaintiff’s claims for malpractice and breach of contract brought against plaintiff’s

accounting firm in 2013 were extinguished in February of 2011 under BOC Section 11.359(a)

because accounting firm’s charter was forfeited in February of 2008 and reinstatement of accounting

firm’s charter in March of 2011 did not revive plaintiff’s extinguished claims against firm). Cf.

Hourani v. Katzen, 305 S.W.3d 239, 250-51 (Tex.App.–Houston [1 Dist.] 2009, pet. denied)

(referring to retroactive nature of reinstatement, noting that forfeited corporation generally has three

years from dissolution to cure its corporate status before it begins to lose certain rights, but

concluding there was no need to determine effect of any retroactive reinstatement of property

owners’ association that was forfeited in 1989 and reinstated in 2006 because property owner who

sought to construct driveway in 2004 could not have complied with restriction that required written

approval of association since association did not exist at time and Property Code provides that

authority of property owners’ association expires when it ceases to exist); Cognata v. Down Hole

Injection, Inc., 375 S.W.3d 370, 376 n. 1 (Tex.App.–Houston [14 Dist.] 2012, pet. denied)

(discussing Tax Code forfeiture and reinstatement provisions and holding appellant waived issue of

forfeited corporation’s capacity to sue by failing to file plea in abatement and noting that appellant

also waived its argument that claim brought by defunct corporation is extinguished unless it is

brought within three years of dissolution because argument was not raised until reply brief on

appeal).

C. Reinstatement of Filing Entity After Involuntary Termination by Secretary of

State Under Chapter 11 of Business Organizations Code

An entity that has been involuntarily terminated by the Secretary of State under BOC Section

11.251 may reinstate by curing the circumstances that led to the involuntary termination (and any

other existing circumstances identified in Section 11.251) and filing a certificate of reinstatement

(and tax clearance letter unless the entity is a nonprofit corporation). There is no longer any deadline

or time limit for reinstatement after an involuntary termination by the Secretary of State in these

circumstances (in contrast to the predecessor provision in Article 7.01E of the TBCA, which

required reinstatement to occur within 36 months after termination), but the relation-back effect is

only explicitly provided for reinstatements that occur within three years of termination. BOC §§

11.253(d).

As noted above in the discussion of involuntary termination under Chapter 11 of the BOC,

there has in the past often been confusion about whether an entity’s existence was terminated under

the Tax Code or Article 7.01 of the TBCA. This confusion in turn led to confusion as to whether

reinstatement of the entity was governed by the Tax Code or the TBCA. Even though Article 7.01

of the TBCA specified failure to pay franchise taxes as a ground for involuntary dissolution by the

Secretary of State under that provision, it has long been the practice of the Secretary of State to

proceed against a corporation that failed to pay its franchise tax by forfeiting the corporation’s

charter as provided under the Tax Code (after notification by the Comptroller that the corporation’s

privileges had been forfeited) rather than involuntarily dissolving the corporation under Article 7.01.

Graywest, LLC v. Neely, No. 2-06-197-CV, 2007 WL 614036 (Tex.App.–Fort Worth Mar. 1, 2007,

no pet.) is an example of a case reflecting the confusion in this area. In that case, Gray and Neely

entered into a contract for the sale of Neely’s homestead in June 2005. One month later Gray

assigned his rights in the contract to Graywest, LLC, which the court referred to as a “limited liability

corporation.” Neely attempted to avoid the contract for sale, and the LLC filed suit to enforce it.

Neely filed a motion to abate and alternatively to dismiss the suit arguing that the LLC did not have

the capacity to sue because it had forfeited its corporate status by failing to pay franchise taxes. The

parties agreed that the LLC had been involuntarily dissolved in March of 2001 for not paying its

franchise taxes. The trial court ruled that the LLC lacked the capacity to file suit on the contract at

issue because its charter had not been revived within the 36-month window for reinstatement

allowed by Article 7.01E of the TBCA, and the three-year survival period under Article 7.12 of the

TBCA had expired. Although TBCA Articles 7.01E and 7.12 were applicable to LLCs under Article

8.12 of the Texas Limited Liability Company Act, and Article 7.01B permitted the Secretary of State

to involuntarily dissolve an LLC for failure to pay its franchise taxes, Article 7.01E was not

applicable in this case because, consistent with its long-standing practice, the Secretary of State

actually effectuated the tax forfeiture of the LLC in question under the Tax Code provisions, which

have their own reinstatement provisions and do not contain a time limitation on reinstatement. See

also Sun Packing, Inc. v. XenaCare Holdings, Inc., 924 F.Supp.2d 749 (S.D. Tex. 2012) in which

the court cited both Article 7.01 of the TBCA and Section 171.309 of the Tax Code in describing

the action taken by the Secretary of State against a corporation whose privileges and charter were

forfeited for failure to pay franchise taxes. There should be less confusion under current law in this

regard since, unlike Article 7.01 of the TBCA, Section 11.251 of the BOC does not specify failure

to pay franchise taxes as a ground for involuntary termination under the BOC. However, recent cases

and anecdotal evidence suggest that confusion regarding the application of the various termination

and reinstatement provisions of the Tax Code and BOC continues to exist. See, e.g., Vernon Feeders,

LLC v. Cabaniss Dairy, LLC, No. 7:13-cv-00069-O, 2013 WL 12137768 (N.D. Tex. July 9, 2013),

in which the court relied on Section 11.253(d), which addresses the effect of reinstatement of an

entity involuntarily terminated by the Secretary of State under that subchapter of the BOC, although

the entity at issue was involuntarily forfeited for failure to pay taxes and would thus have been

reinstated under the provisions of the Tax Code rather than the BOC. See BOC § 11.254.

D. Specific Effects of Reinstatement of Filing Entity After Involuntary

Termination Under Chapter 11 of Business Organizations Code

Sec. 11.253. REINSTATEMENT BY SECRETARY OF STATE AFTER

INVOLUNTARY TERMINATION.

...

(d) If a filing entity is reinstated before the third anniversary of the date of its

involuntary termination, the entity is considered to have continued in existence

without interruption from the date of termination. The reinstatement shall have no

effect on any issue of personal liability of the governing persons, officers, or agents

of the filing entity during the period between termination and reinstatement.

In Vernon Feeders, LLC v. Cabaniss Dairy, LLC, No. 7:13-cv-00069-O, 2013 WL 12137768

(N.D. Tex. July 9, 2013), the defendant contended that the plaintiff lacked capacity to maintain the

action because the plaintiff forfeited its existence prior to filing the suit. The court took judicial

notice of the public records of the Secretary of State, which indicated that the plaintiff’s entity status

was involuntarily forfeited for failure to pay taxes in 2011 but was reinstated to active status in 2013

shortly after the defendant filed its motion to dismiss. Relying on Section 11.253 of the BOC, the

court stated: “Because Plaintiff’s entity status as a limited liability company was reinstated within

three years of its involuntary termination, the Court finds that Plaintiff’s existence is deemed to have

continued uninterrupted from the date of termination.” The court thus concluded that the plaintiff

had the legal capacity to maintain the action. The court also cited 1972 and 1995 cases regarding the

effect of reinstatement of a plaintiff’s charter after a tax forfeiture. Because the reinstatement of the

plaintiff was effectuated under the provisions of the Tax Code rather than the BOC (see BOC §§

11.253, 11.254), Section 11.253 did not literally apply to the plaintiff’s reinstatement, and this case

illustrates that confusion continues to exist with regard to the various termination and reinstatement

provisions of the BOC and Tax Code.

E. Reinstatement After Involuntary Termination of Limited Partnership for

Failure to File Periodic Report Under Chapter 153 of Business Organizations

Code

A limited partnership whose certificate of formation has been terminated for failure to file

a periodic report may be reinstated by filing the report accompanied by the required filing fees and

a tax clearance letter. BOC § 153.312. There is no deadline or time limit for a reinstatement under

these provisions.

The statute does not address the effect of a reinstatement of a limited partnership after

involuntary termination for failure to file a periodic report other than the change in status of the

limited partnership to active, and there is a dearth of case law addressing the effect of a reinstatement

with respect to the time period between forfeiture or termination and reinstatement. In one of the

few reported cases addressing the forfeiture and reinstatement provisions of Chapter 153, the court

of appeals analogized the statutes regarding forfeiture and revival of a limited partnership’s right to

transact business to the provisions of the Tax Code addressing forfeiture and revival of a

corporation’s privileges. Manning v. Enbridge Pipelines (East Texas) L.P., 345 S.W.3d 718, 723

(Tex.App.–Beaumont 2011, pet. denied). The court of appeals stated that revival of a corporation’s

privileges under the Tax Code relates back to the point of delinquency “‘as if the disability had never

existed.’” Id. The court applied this principle to the limited partnership in this case, which had

forfeited and revived its right to transact business during the pendency of a condemnation action filed

by the limited partnership. Relying on case law in the tax forfeiture context, the court of appeals held

that the limited partnership’s temporary lack of capacity was moot because its right to transact

business had been restored. Id.

F. Reinstatement After Involuntary Termination of Nonprofit Corporation for

Failure to File Periodic Report Under Chapter 22 of Business Organizations

Code

A nonprofit corporation that has been involuntarily terminated for failure to file a periodic

report may be reinstated by filing the report accompanied by the filing fee (and tax clearance letter

if the corporation is not exempt from franchise taxes). BOC § 22.365. There is no deadline or time

limit for a reinstatement under these provisions. The statute does not specify the effect of

reinstatement other than the cancellation of the nonprofit corporation’s “forfeited” status, and there

is little case law addressing the effect of the reinstatement with respect to the period during which

the corporation was forfeited.

In Bahr v. Emerald Bay Property Owners Association, Inc., No. 09-16-00325-CV, 2018 WL

2341312 (Tex.App.–Beaumont May 24, 2018, no pet. h.), the court addressed the effect of a property

owners association’s involuntary dissolution and reinstatement as a nonprofit corporation. The court

held that amended deed restrictions adopted by the association in 1999 were not impaired by the

association’s previous involuntary dissolution as a nonprofit corporation in 1995. The court stated

that a corporation may not maintain an action, suit, or proceeding in court while under the effect of

a forfeiture, but the association was reinstated as a corporation in 2014 prior to the commencement

of the underlying lawsuit in the case. See also Hyde v. Hawk Eyeglasses, No. 07-16-00357-CV,

2018 WL 3384870 (Tex.App.–Amarillo July 11, 2018, no pet. h.), in which the court relied on BOC

§§ 11.001(4) and 11.253 and held that the plaintiff’s claims against a nonprofit corporation were not

barred by BOC § 11.356(a). Documents attached to the parties’ briefs—which generally are not

considered part of the appellate record—showed that, although the nonprofit corporation was

involuntarily dissolved for failure to file a required report in 2007 (more than three years before the

lawsuit was brought), the corporation was reinstated upon filing of the report a year after its

involuntary dissolution. In a footnote, the court pointed out that a “terminated corporation” is defined

by BOC § 11.001(4) as a corporation that has been terminated as authorized or required by the BOC,

“unless the entity has been reinstated.” The court also cited BOC § 11.253 regarding the process and

effect of reinstatement. The court stated that the record did not show that the nonprofit corporation’s

existence was terminated and not reinstated within three years. Thus, the court held that the trial

court did not abuse its discretion in overruling a motion for new trial on the judgment against the

corporation.

G. Court Revocation of Fraudulent Termination

The BOC authorizes a court to order the revocation of termination of an entity’s existence

that was terminated as a result of “actual or constructive fraud.” Any limitation period provided by

law is tolled in accordance with the discovery rule under this provision. The Secretary of State is

required to take any action necessary to implement an order under this provision. BOC § 11.153.

The BOC provision on court revocation of a fraudulent termination was derived from TBCA

Article 6.08, which was added to the TBCA in 2003. There is little case law addressing this TBCA

provision or its successor in the BOC. The court briefly referred to TBCA Article 6.08 in Gomez v.

Pasadena Health Care Management, Inc., 246 S.W.3d 306, 312 n. 4 (Tex.App.–Houston [14 Dist.]

2008, no pet.), a case in which a minor plaintiff sought to assert a medical malpractice claim against

a dissolved hospital (based on injuries sustained by the plaintiff during prenatal care and delivery

at the hospital before its dissolution) more than three years after dissolution. The plaintiff made

numerous arguments in an attempt to avoid the effect of Article 7.12, under which the claim was

extinguished when the three-year survival period elapsed. In response to the plaintiff’s argument that

application of Article 7.12 to bar the plaintiff’s claim would allow healthcare corporations to avoid

liability after negligently injuring minor patients by dissolving and disposing of all the corporation’s

assets before the minor reaches majority, the court countered that TBCA Article 6.08 provides a

mechanism by which the court can order revocation of dissolution of a corporation upon a finding

of actual or constructive fraud. The court commented that this provision (now found in Section

11.153 of the BOC) would allow a court to prevent healthcare corporations from taking fraudulent

actions. In Boudreaux v. C J R Framing Incorporated , 2018 WL 3620714, __ Fed. App’x __ (5

Cir. July 27, 2018), however, the Fifth Circuit Court of Appeals found “no authority to suggest

Section 11.153 revives non-existent or extinguished claims” and stated that the court “cannot create

a fraud exception where none exists in Sections 11.356 and 11.359.”

In Pham v.Carrier, No. 07-15-00031-CV, 2017 WL 1291660 (Tex.App.–Amarillo Apr. 3,

2017, no pet. h.), the court expressed no opinion on the defendants’ contention that Section 11.153

establishes only a remedy and not a cause of action and concluded that the defendants were not

entitled to summary judgment against the plaintiff on the plaintiff’s claim for revocation of

fraudulent termination of an LLC. The defendants’ motion for summary judgment raised an

argument about the ability of the plaintiff to assert a derivative claim belonging to the terminated

LLC more than three years after the LLC’s termination, but the defendants’ motion did not address

the impact, if any, that revocation of an entity’s termination under Section 11.153 would have on the

operation of Section 11.356 (the three-year survival statute).

VOLUNTARY AND INVOLUNTARY WINDING UP AND TERMINATION BY ACT OF ENTITY OR OWNER

Corporations

(including Professional

Corporations)

Limited Liability

Companies

(including

Professional

LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

Winding Up

Statutory

References

11.051-11.055, 11.059,

11.101-11.103, 11.405,

11.412, 11.414,

11.351-11.359, 21.364,

21.501-21.504,

303.001, 301.008(e)

11.051-11.056,

11.101-11.103,

11.314, 11.405,

11.412, 11.414,

11.351-11.359,

101.551-101.552,

304.001,

301.008(e)

11.051-11.055,

11.058, 11.101-

11.103, 11.314,

11.405, 11.412,

11.414, 11.351-

11.359, 153.502-

153.504,

153.003, 153.152

11.051-11.055,

11.057, 11.314,

11.405, 11.412,

152.701-152.708

11.051-11.055,

11.101-11.103,

11.405, 11.412,

11.414, 11.351-

11.359, 21.501-

21.504, 302.001,

302.013,

301.008(e),

302.002(2)(A)

11.051-11.055,

11.101-11.103,

11.405, 11.412-

11.414, 11.351-

11.359, 22.164,

22.301-22.307

Causes or Events

Written consent of all

shareholders or board

approval and vote of

holders of 2/3 shares

entitled to vote; or, if

corporation has not

commenced business

and issued shares,

approval of a majority

of organizers or board;

event specified in

governing documents;

expiration of period of

duration; appointment

of liquidating receiver

after failed

rehabilitating receiver.

Vote of majority

of members;

event specified in

governing

documents;

expiration of

period of

duration;

termination of

membership of

last member

(unless certain

conditions met

within 90 days);

judicial decree on

application of

member on

specified

grounds;

appointment of

Written consent

of all partners;

event specified in

governing

documents;

expiration of

period of

duration;

withdrawal of

general partner

(unless otherwise

provided by

partnership

agreement); no

remaining limited

partners; judicial

decree on

application of

partner on

specified

Vote of majority-

in-interest of

partners in at will

partnership; vote

of all partners in

partnership with

specified

duration,

undertaking, or

event;

occurrence of

event specified in

governing

documents;

completion of

specified

undertaking;

expiration of

duration;

illegality of

2/3 vote of

members;

expiration of

period of

duration;

appointment of

liquidating

receiver after

failed

rehabilitating

receiver.

Board approval

and 2/3 votes of

members

present (or

majority of board

if no members

with voting

rights);

expiration of

period of

duration;

appointment of

liquidating

receiver after

failed

rehabilitating

receiver.

VOLUNTARY AND INVOLUNTARY WINDING UP AND TERMINATION BY ACT OF ENTITY OR OWNER

Corporations

(including Professional

Corporations)

Limited Liability

Companies

(including

Professional

LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

liquidating

receiver after

failed

rehabilitating

receiver.

grounds.

business; sale of

substantially all

property outside

ordinary course

of business;

request by

partner in at will

partnership

unless declined

by majority-in-

interest.

Winding Up

Process

Send notice to known

claimants; wind up and

terminate; file

certificate of

termination (SOS Form

651) with tax

certificate.

Send notice to

known claimants;

wind up and

terminate; file

certificate of

termination (SOS

Form 651) with

tax certificate.

Send notice to

known claimants;

wind up and

terminate; file

certificate of

termination (SOS

Form 651) with

tax certificate.

Wind up and

terminate.

Send notice to

known claimants;

wind up and

terminate; file

certificate of

termination (SOS

Form 651) with

tax certificate.

Send notice to

known claimants;

wind up and

terminate; file

certificate of

termination (SOS

Form 652).

Effect

Terminates existence

except for three-year

post-termination

survival for unfinished

winding up including

suits on “existing

claims.”

Terminates

existence except

for three-year

post-termination

survival for

unfinished

winding up

including suits on

“existing claims.”

Terminates

existence except

for three-year

post-termination

survival for

unfinished

winding up

including suits on

“existing claims.”

Terminates on

completion of

winding up.

Terminates

existence except

for three-year

post-termination

survival for

unfinished

winding up

including suits on

“existing claims.”

Terminates

existence except

for three-year

post-termination

survival for

unfinished

winding up

including

assertion of

“existing claims.

VOLUNTARY AND INVOLUNTARY WINDING UP AND TERMINATION BY ACT OF ENTITY OR OWNER

Corporations

(including Professional

Corporations)

Limited Liability

Companies

(including

Professional

LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

REVOCATION OR CANCELLATION OF WINDING UP AND CONTINUATION OF ENTITY BEFORE TERMINATION TAKES EFFECT

Statutory

References

11.151-11.152, 21.364,

21.501, 303.001

11.151-11.152,

101.552, 304.001

11.151-11.152,

153.501

11.151-11.152,

152.709

11.151-11.152,

21.364, 21.501,

302.001

11.151-11.152,

22.302

Voluntary

Winding Up

Revocation of vote to

wind up by written

consent of all

shareholders or board

approval and vote of

holders of 2/3 shares

entitled to vote any

time before

effectiveness of

termination of

existence.

Revocation of

vote to wind up

by vote of

majority of

members (or

managers if no

members) any

time before

effectiveness of

termination of

existence.

Revocation of

vote to wind up

by written

consent of all

partners any time

before

effectiveness of

termination of

existence.

Revocation of

decision of all

partners to wind

up under

11.057(b) by

written

agreement of all

partners prior to

completion of

winding up.

Revocation of

decision of

majority-in-

interest in an at

will partnership

by written

agreement of

majority-in-

interest.

Revocation of

vote to wind up

by written

consent of all

shareholders or

board approval

and vote of

holders of 2/3

shares entitled to

vote any time

before

effectiveness of

termination of

existence;

Revocation of

vote to wind up

by approval of

board and vote

of 2/3 votes of

members

present (or

majority of board

if no members

with voting

rights) any time

before

effectiveness of

termination.

Event Specified

in Governing

Documents

Event cancelled by

written consent of all

shareholders or board

approval and vote of

holders of 2/3 shares

entitled to vote within

Event cancelled

with consent of

all members

within one year

of event.

Event cancelled

by written

consent of all

partners within

one year of

event.

Revocation of

decision of all

partners to wind

up under

11.057(b) by

written

Event cancelled

by written

consent of all

shareholders or

board approval

and vote of

Event cancelled

by approval of

board and 2/3

votes of

members

present (or

VOLUNTARY AND INVOLUNTARY WINDING UP AND TERMINATION BY ACT OF ENTITY OR OWNER

Corporations

(including Professional

Corporations)

Limited Liability

Companies

(including

Professional

LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

one year of event.

agreement of all

partners prior to

completion of

winding up.

holders of 2/3

shares entitled to

vote within one

year of event.

majority of board

if no members

with voting

rights) within

one year of

event.

Expiration of

Period of

Duration

Amend governing

documents and file

certificate of

amendment within

three years of

expiration.

Amend governing

documents with

consent of all

members and file

certificate of

amendment

within three

years of

expiration.

Amend governing

documents

within one year

of expiration.

Cancellation of

expiration of

period of

duration within

three years of

expiration by

written

agreement of all

partners.

Amend governing

documents and

file certificate of

amendment

within three

years of

expiration.

Amend

governing

documents and

file certificate of

amendment

within three

years of

expiration.

Other Event

Specified in BOC

Cancellation of

winding up from

termination of

membership of

last member by

agreement of

legal

representative or

successor of last

member to

become member

or designation of

another to

become member

Cancellation of

winding up by

withdrawal of

general partner

within one year

of withdrawal if

there is

remaining

general partner

who continues

and partnership

agreement

permits

continuation or

Revocation of

occurrence of

specified event

within one year

of event by

agreement of all

partners.

Cancellation of

winding up by

completion of

undertaking, sale

of substantially

all assets, or

request of

VOLUNTARY AND INVOLUNTARY WINDING UP AND TERMINATION BY ACT OF ENTITY OR OWNER

Corporations

(including Professional

Corporations)

Limited Liability

Companies

(including

Professional

LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

within one year of

termination of

membership of last

remaining

member.

all partners agree

in writing to

continue and

appoint successor

general partner.

Cancellation of

winding up from

no remaining

limited partners

within one year if

legal rep or

successor of last

limited partner

agrees to

continue and

become limited

partner or

designates

another to

become limited

partner.

partner in at will

partnership by

agreement of all

partners (must be

within one year

per 11.152(a)).

REINSTATEMENT AFTER FILING ENTITY’S FILING OF CERTIFICATE OF TERMINATION OR

GENERAL PARTNERSHIP’S COMPLETION OF WINDING UP

Statutory

References

11.201-11.206, 21.364,

21.501, 303.001

11.201-11.206,

101.552, 304.001

11.201-11.206,

153.505

11.201-11.206,

152.710

11.201-11.206,

302.001, 21.364,

21.501, 302.001

11.201-11.206,

22.302

Grounds

Termination was by

mistake or

inadvertent; occurred

Termination was

by mistake or

inadvertent;

Termination was

by mistake or

inadvertent;

Termination was

by mistake or

inadvertent;

Termination was

by mistake or

inadvertent;

Termination was

by mistake or

inadvertent;

VOLUNTARY AND INVOLUNTARY WINDING UP AND TERMINATION BY ACT OF ENTITY OR OWNER

Corporations

(including Professional

Corporations)

Limited Liability

Companies

(including

Professional

LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

without required

approval of governing

persons; winding up

not completed prior to

termination; or legal

existence necessary to

take certain

actions.

Reinstatement

not permitted if

termination resulted

from order of court or

secretary of state,

event specified by BOC

and BOC prohibits, or

tax forfeiture.

occurred without

required approval

of governing

persons; winding

up not completed

prior to

termination; or

legal existence

necessary to take

certain actions.

Reinstatement

not permitted if

termination

resulted from

order of court or

secretary of

state, event

specified by BOC

and BOC

prohibits, or tax

forfeiture.

occurred without

required approval

of governing

persons; winding

up not completed

prior to

termination; or

legal existence

necessary to take

certain actions.

Reinstatement

not permitted if

termination

resulted from

order of court or

secretary of

state, event

specified by BOC

and BOC

prohibits, or tax

forfeiture.

occurred without

required approval

of governing

persons; winding

up not completed

prior to

termination; or

legal existence

necessary to take

certain actions.

Reinstatement

not permitted if

termination

resulted from

order of court or

secretary of

state, event

specified by BOC

and BOC

prohibits, or tax

forfeiture.

occurred without

required approval

of governing

persons; winding

up not completed

prior to

termination; or

legal existence

necessary to take

certain actions.

Reinstatement

not permitted if

termination

resulted from

order of court or

secretary of

state, event

specified by BOC

and BOC

prohibits, or tax

forfeiture.

occurred without

required

approval of

governing

persons; winding

up not

completed prior

to termination;

or legal existence

necessary to take

certain actions.

Reinstatement

not permitted if

termination

resulted from

order of court or

secretary of

state, event

specified by BOC

and BOC

prohibits, or tax

forfeiture.

Process

Written consent of all

shareholders or

approval of board and

holders of 2/3 shares

Vote of majority

of members (or

managers if no

members). Must

Written

agreement of all

remaining

partners. Must

Written

agreement of all

remaining

partners prior to

Written consent

of all

shareholders or

approval of board

Approval of

board and vote

of 2/3 votes of

members

A court may order the revocation of a fraudulent termination when an action is brought pursuant to Section 11.153 of the BOC. The entity’s termination of

existence must have been the result of actual or constructive fraud. Any limitation period provided by law is tolled in accordance with the discovery rule.

VOLUNTARY AND INVOLUNTARY WINDING UP AND TERMINATION BY ACT OF ENTITY OR OWNER

Corporations

(including Professional

Corporations)

Limited Liability

Companies

(including

Professional

LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

entitled to vote. Must

file certificate of

reinstatement (SOS

Form 811) and tax

clearance prior to third

anniversary of

termination.

file certificate of

reinstatement

(SOS Form 811)

and tax clearance

prior to third

anniversary of

termination.

file certificate of

reinstatement

(SOS Form 811)

and tax clearance

prior to third

anniversary of

termination.

third anniversary

of termination.

and holders of

2/3 shares

entitled to vote,

file certificate of

reinstatement

(SOS Form 811)

and tax clearance

prior to third

anniversary of

termination.

present (or

majority of board

if no members

with voting

rights). Must file

certificate of

reinstatement

(SOS Form 811)

prior to third

anniversary of

termination.

Effect

Reinstatement

effective on filing

certificate of

reinstatement as if

termination had not

occurred.

Reinstatement

effective on filing

certificate of

reinstatement as

if termination

had not occurred.

Reinstatement

effective on filing

certificate of

reinstatement as

if termination

had not occurred.

Reinstatement

effective on

approval of

partners as if

termination had

not occurred.

Reinstatement

effective on filing

certificate of

reinstatement as

if termination

had not occurred.

Reinstatement

effective on filing

certificate of

reinstatement as

if termination

had not

occurred.

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

INVOLUNTARY TERMINATIONS UNDER CHAPTER 11 OF THE BUSINESS ORGANIZATIONS CODE (BOC)

Statutory

References

11.251-11.252,

11.351-11.359

11.251-11.252,

11.351-11.359

11.251-11.252,

11.351-11.359

N/A

11.251-11.252,

11.351-11.359

11.251-11.252,

11.351-11.359

Grounds

Failure to file

required report,

pay fee or

penalty, maintain

registered agent

or registered

office; failure to

pay or dishonor of

formation filing

fee.

Failure to file

required report,

pay fee or

penalty, maintain

registered agent

or registered

office; failure to

pay or dishonor of

formation filing

fee.

Failure to file

required report,

pay fee or

penalty, maintain

registered agent

or registered

office; failure to

pay or dishonor of

formation filing

fee.

Failure to file

required report

(i.e., PA annual

statement due in

June), pay fee or

penalty, maintain

registered agent

or registered

office; failure to

pay or dishonor of

formation filing

fee.

Failure to file

required report,

pay fee or

penalty, maintain

registered agent

or registered

office; failure to

pay or dishonor

of formation filing

fee.

Process

Notice sent by

secretary of state,

issuance of

certificate of

involuntary

termination.

Notice sent by

secretary of state,

issuance of

certificate of

involuntary

termination.

Notice sent by

secretary of state,

issuance of

certificate of

involuntary

termination.

Notice sent by

secretary of state,

issuance of

certificate of

involuntary

termination.

Notice sent by

secretary of state,

issuance of

certificate of

involuntary

termination.

Effect

Existence

terminates except

for three-year

survival for

purposes of

winding up

including suits on

“existing claims.”

Existence

terminates except

for three-year

survival for

purposes of

winding up

including suits on

“existing claims.”

Existence

terminates except

for three-year

survival for

purposes of

winding up

including suits on

“existing claims.”

Existence

terminates except

for three-year

survival for

purposes of

winding up

including suits on

“existing claims.”

Existence

terminates except

for three-year

survival for

purposes of

winding up

including suits on

“existing claims.”

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

FORFEITURES OF RIGHT TO DO BUSINESS & INVOLUNTARY TERMINATIONS UNDER CHAPTERS 22 AND 153 OF THE BOC

Statutory

References

153.301-153.311.

22.357-22.364

Grounds

Failure to file

periodic report

when notified by

secretary of state

Failure to file

periodic report

when notified by

secretary of state

Process-Phase I

Entity notified by

secretary of state

to file report

within 30 days of

notice; notice sent

to registered

agent. Failure to

file report when

due results in

“forfeiture of right

to transact

business.” Notice

of forfeiture sent

by secretary of

state to registered

agent.

Entity notified by

secretary of state

to file report

within 30 days of

notice; notice

sent to registered

agent. Failure to

file report when

due results in

“forfeiture of

right to conduct

affairs.” Notice of

forfeiture sent by

secretary of state

to registered

agent.

Effect

Limited

partnership in

“forfeited rights”

status may not

maintain an action

in court in Texas;

does not impair

Nonprofit

corporation in

“forfeited rights”

status may not

maintain an

action in court in

Texas; does not

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

contract of limited

partnership or

prevent

partnership from

defending action;

does not affect

liability of limited

partner.

impair contract of

corporation or

prevent

corporation from

defending action.

Process-Phase II

Certificate of

formation is

terminated by

secretary of state

if entity fails to file

report and revive

its right to

transact business

within 120 days of

mailing of notice

of forfeited rights.

Certificate of

involuntary

termination

issued by

secretary of state

if entity fails to

file report and

revive its right to

transact business

within 120 days

of mailing of

notice of forfeited

rights.

Effect

Limited

partnership’s

status is changed

to inactive (i.e.,

involuntarily

terminated);

change does not

affect liability of

limited partner.

Nonprofit

corporation

status is changed

to inactive (i.e.,

involuntarily

terminated).

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

REINSTATEMENT FOLLOWING INVOLUNTARY TERMINATION UNDER CHAPTER 11 OF THE BOC

Statutory

References

11.253

Grounds

Filing of certificate

of reinstatement

and correction of

circumstances

that led to

termination and

any other grounds

under 11.251(b)

or secretary of

state finds that

circumstances

that led to

termination did

not exist.

Filing of certificate

of reinstatement

and correction of

circumstances

that led to

termination and

any other grounds

under 11.251(b)

or secretary of

state finds that

circumstances

that led to

termination did

not exist.

Filing of certificate

of reinstatement

and correction of

circumstances

that led to

termination and

any other grounds

under 11.251(b)

or secretary of

state finds that

circumstances

that led to

termination did

not exist.

Filing of certificate

of reinstatement

and correction of

circumstances

that led to

termination and

any other grounds

under 11.251(b)

or secretary of

state finds that

circumstances

that led to

termination did

not exist.

Filing of

certificate of

reinstatement

and correction of

circumstances

that led to

termination and

any other

grounds under

11.251(b) or

secretary of state

finds that

circumstances

that led to

termination did

not exist.

Process

File certificate of

reinstatement

(Form 811) with

tax clearance.

Entity name must

still be available; if

not,

simultaneously

submit consent or

certificate of

amendment.

File certificate of

reinstatement

(Form 811) with

tax clearance.

Entity name must

still be available; if

not,

simultaneously

submit consent or

certificate of

amendment.

File certificate of

reinstatement

(Form 811) with

tax clearance.

Entity name must

still be available; if

not,

simultaneously

submit consent or

certificate of

amendment.

File certificate of

reinstatement

(Form 811) with

tax clearance. If

involuntarily

terminated for

failure to file

annual statement,

file all delinquent

statements (Form

803). Entity name

File certificate of

reinstatement

(Form 811).

Entity name must

still be available;

if not,

simultaneously

submit consent or

certificate of

amendment.

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

must still be

available; if not,

simultaneously

submit consent or

certificate of

amendment.

Effect

Entity is

considered to

have continued

without

interruption if

reinstatement

within three years

of termination,

but reinstatement

has no effect on

personal liability

of governing

persons, officers,

or agents of entity

during period

between

termination and

reinstatement.

Entity is

considered to

have continued

without

interruption if

reinstatement

within three years

of termination,

but reinstatement

has no effect on

personal liability

of governing

persons, officers,

or agents of entity

during period

between

termination and

reinstatement.

Entity is

considered to

have continued

without

interruption if

reinstatement

within three years

of termination,

but reinstatement

has no effect on

personal liability

of governing

persons, officers,

or agents of entity

during period

between

termination and

reinstatement.

Entity is

considered to

have continued

without

interruption if

reinstatement

within three years

of termination,

but reinstatement

has no effect on

personal liability

of governing

persons, officers,

or agents of entity

during period

between

termination and

reinstatement.

Entity is

considered to

have continued

without

interruption if

reinstatement

within three years

of termination,

but reinstatement

has no effect on

personal liability

of governing

persons, officers,

or agents of

entity during

period between

termination and

reinstatement.

REVIVAL OF RIGHT TO CONDUCT BUSINESS FOR FAILURE TO FILE REPORT (CHAPTERS 22 AND 153 OF THE BOC)

Statutory

References

153.310

22.363

Grounds &

Process

File report (Form

804), pay filing

fee, and late fee,

File report (Form

802), pay filing

fee, and late fee,

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

within 120 days

after mailing of

notice of

forfeiture.

Secretary of state

revives right to

transact business;

cancels notation

on record

regarding

forfeiture. Status

changed to “in

existence.”

within 120 days

after mailing of

notice of

forfeiture.

Secretary of state

revives right to

conduct affairs;

cancels notation

on record

regarding

forfeiture. Status

changed to “in

existence.”

REINSTATEMENT AFTER INVOLUNTARY TERMINATION FOR FAILURE TO FILE PERIODIC REPORT (CHAPTERS 22 AND 153 OF THE BOC)

Statutory

References

153.312

22.365

Grounds &

Process

File report

accompanied by

tax clearance

letter and filing

fees ($225);

secretary of state

reinstates

certificate and

changes status to

active and notes

reinstatement on

record. Entity

name must still be

available; if not,

File report

accompanied by

filing fee ($25);

secretary of state

reinstates

certificate of

formation and

changes status of

entity to “in

existence.” Entity

name must still

be available; if

not,

simultaneously

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

simultaneously

submit consent or

certificate of

amendment.

submit consent or

certificate of

amendment.

ADMINISTRATIVE FORFEITURES UNDER CHAPTER 171 TAX CODE

FORFEITURE OF CORPORATE AND BUSINESS PRIVILEGES UNDER CHAPTER 171 TAX CODE

Statutory

References

171.251-171.257

Grounds &

Process

Failure to file

report or pay tax

or penalty within

45 days after

comptroller mails

notice of

forfeiture.

Failure to file

report or pay tax

or penalty within

45 days after

comptroller mails

notice of

forfeiture.

Failure to file

report or pay tax

or penalty within

45 days after

comptroller mails

notice of

forfeiture.

Failure to file

report or pay tax

or penalty within

45 days after

comptroller mails

notice of

forfeiture.

(General

partnership is not

taxable entity

subject to these

provisions if 100%

of partners are

individuals and

partnership is not

LLP.)

Failure to file

report or pay tax

or penalty within

45 days after

comptroller mails

notice of

forfeiture.

Failure to file

report or pay tax

or penalty within

45 days after

comptroller mails

notice of

forfeiture.

Effect

Corporation may

not sue or defend

in court in Texas;

each director and

officer has

Taxable entity

may not sue or

defend in court in

Texas; each

“director and

Taxable entity

may not sue or

defend in court in

Texas; each

“director and

Taxable entity

may not sue or

defend in court in

Texas; each

“director and

Taxable entity

may not sue or

defend in court in

Texas; each

“director and

Corporation may

not sue or defend

in court in Texas;

each director and

officer has

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

personal liability

for debts of

corporation

incurred after

report, tax, or

penalty was due

as provided by

171.255; in suit

against

corporation on

cause of action

arising before

forfeiture,

affirmative relief

may not be

granted to

corporation unless

privileges revived.

officer” has

personal liability

for debts of the

entity incurred

after report, tax,

or penalty was

due as provided

by 171.255; in suit

against entity on

cause of action

arising before

forfeiture,

affirmative relief

may not be

granted to entity

unless privileges

revived.

officer” has

personal liability

for debts of the

entity incurred

after report, tax,

or penalty was

due as provided

by 171.255; in suit

against entity on

cause of action

arising before

forfeiture,

affirmative relief

may not be

granted to entity

unless privileges

revived.

officer” has

personal liability

for debts of the

entity incurred

after report, tax,

or penalty was

due as provided

by 171.255; in suit

against entity on

cause of action

arising before

forfeiture,

affirmative relief

may not be

granted to entity

unless privileges

revived.

officer” has

personal liability

for debts of the

entity incurred

after report, tax,

or penalty was

due as provided

by 171.255; in suit

against entity on

cause of action

arising before

forfeiture,

affirmative relief

may not be

granted to entity

unless privileges

revived.

personal liability

for debts of

corporation

incurred after

report, tax, or

penalty was due

as provided by

171.255; in suit

against

corporation on

cause of action

arising before

forfeiture,

affirmative relief

may not be

granted to

corporation

unless privileges

revived.

FORFEITURE OF CERTIFICATE OF FORMATION BY SECRETARY OF STATE UNDER CHAPTER 171 TAX CODE

Statutory

References

171.301-171.302,

171.309-171.311

171.301-171.302,

171.309-171.311

171.301-171.302,

171.309-171.311

171.301-171.302,

171.309-171.311

171.301-171.302,

171.309-171.311

Grounds &

Process

Comptroller

certifies to

secretary of state

that corporation

has not revived its

corporate

privileges within

120 days of

Comptroller

certifies to

secretary of state

that taxable entity

has not revived its

business privileges

within 120 days of

forfeiture;

Comptroller

certifies to

secretary of state

that taxable entity

has not revived its

business privileges

within 120 days of

forfeiture;

Comptroller

certifies to

secretary of state

that taxable entity

has not revived

its business

privileges within

120 days of

Comptroller

certifies to

secretary of state

that corporation

has not revived its

corporate

privileges within

120 days of

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

forfeiture;

secretary of state

forfeits charter by

inscribing record

to change entity

status to

“forfeited

existence.”

secretary of state

forfeits certificate

by inscribing

record to change

entity status to

“forfeited

existence.”

secretary of state

forfeits certificate

by inscribing

record to change

entity status to

“forfeited

existence.”

forfeiture;

secretary of state

forfeits certificate

by inscribing

record to change

entity status to

“forfeited

existence.”

forfeiture;

secretary of state

forfeits charter by

inscribing record

to change entity

status to

“forfeited

existence.”

Effect

Forfeited

corporation is

terminated entity

for purposes of

BOC Chapter 11

and thus survives

for three-year

post-termination

survival period for

winding up

including suits on

“existing claims.”

Forfeited LLC is

terminated entity

for purposes of

BOC Chapter 11

and thus survives

for three-year

post-termination

survival period for

winding up

including suits on

“existing claims.”

Forfeited limited

partnership is

terminated entity

for purposes of

BOC Chapter 11

and thus survives

for three-year

post-termination

survival period for

winding up

including suits on

“existing claims.”

Forfeited PA is

terminated entity

for purposes of

BOC Chapter 11

and thus survives

for three-year

post-termination

survival period for

winding up

including suits on

“existing claims.”

Forfeited

corporation is

terminated entity

for purposes of

BOC Chapter 11

and thus survives

for three-year

post-termination

survival period for

winding up

including suits on

“existing claims.”

REVIVAL OF CORPORATE AND BUSINESS PRIVILEGES BEFORE FORFEITURE OF EXISTENCE UNDER CHAPTER 171 TAX CODE

Statutory

References

171.257-171.258

171.257-171.258,

171.2515

171.257-171.258,

171.2515

171.257-171.258,

171.2515

171.257-171.258,

171.2515

171.257-171.258

Grounds &

Process

Comptroller

revives privileges

if corporation

pays tax, penalty,

or interest before

forfeiture of

charter.

Comptroller

revives privileges

if entity pays tax,

penalty, or

interest before

forfeiture of

certificate.

Comptroller

revives privileges

if entity pays tax,

penalty, or

interest before

forfeiture of

certificate.

Comptroller

revives privileges

if entity pays tax,

penalty, or

interest before

forfeiture of

certificate.

Comptroller

revives privileges

if entity pays tax,

penalty, or

interest before

forfeiture of

certificate.

Comptroller

revives privileges

if entity pays tax,

penalty, or

interest before

forfeiture of

certificate.

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

REINSTATEMENT AFTER TAX FORFEITURE UNDER CHAPTER 171 TAX CODE

Statutory

References

171.312-171.315

Grounds &

Process

Corporation files

each report and

pays tax, penalty,

and interest due;

stockholder,

director, or officer

at time of

forfeiture

requests in name

of corporation

that secretary of

state set aside

forfeiture (Form

801); and

secretary of state

determines each

delinquent report

and payment has

been made by

entity’s provision

of tax clearance

from comptroller.

(Statutes do not

specify deadline

for

reinstatement).

Entity name must

Entity files each

report and pays

tax, penalty, and

interest due;

member or

manager at time

of forfeiture

requests in name

of entity that

secretary of state

set aside

forfeiture (Form

801); and

secretary of state

determines each

delinquent report

and payment has

been made by

entity’s provision

of tax clearance

from comptroller.

(Statutes do not

specify deadline

for

reinstatement).

Entity name must

still be available; if

Entity files each

report and pays

tax, penalty, and

interest due;

partner at time of

forfeiture

requests in name

of entity that

secretary of state

set aside

forfeiture (Form

801); and

secretary of state

determines each

delinquent report

and payment has

been made by

entity’s provision

of tax clearance

from comptroller.

(Statutes do not

specify deadline

for

reinstatement).

Entity name must

still be available; if

not,

Entity files each

report and pays

tax, penalty, and

interest due;

stockholder,

member, director,

or officer at time

of forfeiture

requests in name

of entity that

secretary of state

set aside

forfeiture (Form

801); and

secretary of state

determines each

delinquent report

and payment has

been made by

entity’s provision

of tax clearance

from comptroller.

(Statutes do not

specify deadline

for

reinstatement).

Entity name must

Corporation files

each report and

pays tax, penalty,

and interest due;

member,

director, or

officer at time of

forfeiture

requests in name

of entity that

secretary of state

set aside

forfeiture (Form

801); and

secretary of state

determines each

delinquent report

and payment has

been made by

entity’s provision

of tax clearance

from comptroller.

(Statutes do not

specify deadline

for

reinstatement).

Entity name must

INVOLUNTARY TERMINATION AND ADMINISTRATIVE FORFEITURE BY SECRETARY OF STATE

Corporations

(including

Professional

Corporations)

Limited Liability

Companies

(including

Professional LLCs)

Limited

Partnerships

General

Partnerships

Professional

Associations

Nonprofit

Corporations

still be available; if

not,

simultaneously

submit consent or

certificate of

amendment.

not,

simultaneously

submit consent or

certificate of

amendment.

simultaneously

submit consent or

certificate of

amendment.

still be available; if

not,

simultaneously

submit consent or

certificate of

amendment.

still be available;

if not,

simultaneously

submit consent or

certificate of

amendment.

Effect

Secretary of state

sets aside

forfeiture of

charter, and

comptroller

revives corporate

privileges.

Secretary of state

sets aside

forfeiture of

certificate, and

comptroller

revives business

privileges.

Secretary of state

sets aside

forfeiture of

certificate, and

comptroller

revives business

privileges.

Secretary of state

sets aside

forfeiture of

certificate, and

comptroller

revives business

privileges.

Secretary of state

sets aside

forfeiture of

charter, and

comptroller

revives corporate

privileges.

Form 801—General Information

(Application for Reinstatement and Request to Set Aside Tax Forfeiture)

The attached form is designed to meet minimal statutory filing requirements pursuant to the relevant

code provisions. This form and the information provided are not substitutes for the advice and services of an

attorney and tax specialist.

Commentary

This form may be used to complete the final step for reinstating a domestic or foreign filing entity that

has been forfeited or revoked by the secretary of state under chapter 171, Tax Code. Before submitting

this form, an entity seeking reinstatement must: (1) file with the comptroller of public accounts each

delinquent report that is required by chapter 171; and (2) pay the tax, penalty, and interest imposed by

the Tax Code and due at the time the request to set aside forfeiture is made.

Do Not Use This Form If:

 The entity was voluntarily terminated. See Form 811.

 The existence or registration was terminated or revoked by the secretary of state for a reason

other than tax forfeiture. See Forms 811, 814.

 The entity was terminated or revoked by court order.

 Time Frame for Reinstatement 

The request to set aside forfeiture may be submitted at any time after forfeiture so long as the entity

would otherwise have continued to exist.

Persons Authorized to Submit Application for Reinstatement

 For-profit or professional corporation: shareholder, director, or officer at the time of forfeiture.

 Professional association: shareholder, member, director, or officer at the time of forfeiture.

 Nonprofit corporation: director, officer, or member at the time of forfeiture.

 Limited liability company: member or manager at the time of forfeiture.

 Limited partnership: partner at the time of forfeiture.

 Statutory or business trust: trustee or beneficial owner at the time of forfeiture.

Registered Agent & Office Updates

Filing entities must maintain accurate registered agent and office information on file with the secretary

of state. Neither tax filings nor this application for reinstatement can be used to update the registered

agent and office information; rather updates to the registered agent and office require an additional

filing. See Form 401.

Instructions for Form

 Item 1—Entity Name: Set forth the legal name of the entity as stated in its certificate of formation

or registration. If the entity is a foreign filing entity that was granted authority to transact business

under a different name, then also set forth the assumed name under which the foreign filing entity

was registered to transact business.

 Entity Name Availability: The reinstatement cannot be filed if the name of the entity is the same

as, deceptively similar to, or similar to the name of any existing domestic or foreign filing entity, or

Form 801

any name reservation or registration filed with the secretary of state. The administrative rules

adopted for determining entity name availability (Texas Administrative Code, title 1, part 4, chapter

79, subchapter C) may be viewed at http://www.sos.state.tx.us/tac/index.shtml.

If the entity name is no longer available, the application for reinstatement must be accompanied by a

letter of consent or an amendment to the entity’s formation document or registration, as applicable.

 Item 2—Secretary of State File Number: It is recommended that the file number assigned by the

secretary of state be provided to facilitate processing and ensure that the correct entity is reinstated.

 Item 3—Date of Forfeiture/Revocation: Provide the date of the forfeiture or revocation. If unsure,

verification of the date may be obtained by calling the secretary of state at (512) 463-5555, by

dialing 7-1-1 for relay services, or by sending an e-mail to corpinfo@sos.state.tx.us.

 Item 4—Certified Statements: Although an application for reinstatement need not be notarized, by

signing the application for reinstatement, a person certifies to the statements contained in item 4 of

the application. Prior to signing, please read the statements on this form carefully. In addition to the

penalties imposed by law for the submission of a false or fraudulent document, a person commits an

offense under section 171.363 of the Tax Code if the person is an employee, officer, or agent of a

taxable entity and the person knowingly enters or provides false information on any report, return, or

other document filed by the taxable entity under the provisions of chapter 171, including an

application for reinstatement. An offense under section 171.363 is a felony of the third degree.

 Tax Clearance: A certificate of reinstatement must be accompanied by a tax clearance letter from

the Texas Comptroller of Public Accounts stating that the entity has satisfied all franchise tax

liabilities and may be reinstated.

Contact the Comptroller for assistance in complying with franchise tax filing requirements and

obtaining the necessary tax clearance letter. The Comptroller may be contacted by e-mail at

tax.help@cpa.state.tx.us or by calling (800) 252-1381 or (512) 463-4600.

 Execution: The application must be signed by a person who is authorized to apply for and request a

reinstatement of the forfeited entity. (See “Persons Authorized to Apply” on page 1 of these

instructions.)

 Payment and Delivery Instructions: The filing fee for an application for reinstatement is $75,

unless the entity is a nonprofit corporation. There is no fee for filing the reinstatement of a nonprofit

corporation following a tax forfeiture. Fees may be paid by personal checks, money orders,

LegalEase debit cards, or American Express, Discover, MasterCard, and Visa credit cards. Checks

or money orders must be payable through a U.S. bank or financial institution and made payable to

the secretary of state. Fees paid by credit card are subject to a statutorily authorized convenience fee

of 2.7 percent of the total fees.

Applicable fees for any additional filing that may be required as a condition for reinstatement (such as

an amendment to change the entity’s name) must be submitted together with the appropriate filing.

Submit the completed form in duplicate along with the filing fee. The form may be mailed to P.O.

Box 13697, Austin, Texas 78711-3697; faxed to (512) 463-5709; or delivered to the James Earl

Rudder Office Building, 1019 Brazos, Austin, Texas 78701. If a document is transmitted by fax,

credit card information must accompany the transmission (Form 807). On filing the document, the

secretary of state will return the appropriate evidence of filing to the submitter together with a file-

stamped copy of the document, if a duplicate copy was provided as instructed.

Revised 05/11

Form 801

This space reserved for office use.

Form 801

(Revised 05/11)

Submit in duplicate to:

Secretary of State

P.O. Box 13697

Austin, TX 78711-3697

512 463-5555

FAX: 512 463-5709

Filing Fee: See instructions

Application for Reinstatement

And Request to Set Aside

Tax Forfeiture

1. The entity name is:

The entity is a foreign entity that was required to obtain its registration under a name that differs from

the legal name stated above. The name under which the entity is registered is:

2. The file number issued to the entity by the secretary of state is:

3. The entity was forfeited or revoked under the provisions of the Tax Code on:

mm/dd/yyyy

4. The undersigned requests that the forfeiture or revocation of the entity be set aside, and certifies

that:

a. The entity has filed each delinquent report that is required by chapter 171 of the Tax Code and has

made payment for the tax, penalty, and interest imposed and that is due at the time of this application

as evidenced by the attached tax clearance letter; and

b. On the date of forfeiture or revocation, the undersigned person was:

 an officer, director or shareholder of the above-named for-profit or professional corporation; or

 an officer, director, shareholder or member of the above-named professional association; or

 an officer, director, or member of the above-named nonprofit corporation; or

 a member or manager of the above-named limited liability company; or

 a partner of the above-named limited partnership; or

 a trustee or beneficial owner of the above-named statutory or business trust.

Additional Required Documentation or Filings

Comptroller of Public Accounts Tax Clearance Letter

Letter of Consent or Amendment to Certificate of Formation or Registration

(Required when entity name

is no longer available.)

Execution

The undersigned declares under penalty of perjury, and the penalties imposed by law for the

submission of a materially false or fraudulent instrument, that the undersigned is authorized to make

this request; that the statements contained herein are true and correct, and that tax clearance was not

obtained by providing false or fraudulent information.

Date:

BY:

Signature of authorized person (see instructions)

Printed or typed name of authorized person

Form 801

Reset

Form 802 ─ Page 1 of 5

Form 802—General Information

(Periodic Report – Nonprofit Corporation)

The attached form is drafted to meet minimal statutory filing requirements pursuant to the relevant

code provisions. This form and the information provided are not substitutes for the advice and services of an

attorney and tax specialist.

Commentary

A nonprofit corporation is required by Section 22.357 of the Texas Business Organizations Code (BOC) to file a

periodic report that lists the names and addresses of all directors and officers of the corporation. The Office of the

Secretary of State may require a domestic nonprofit corporation or a foreign nonprofit corporation registered to

transact business in this state to file a report not more than once every four years. The failure to file the report

when due will result, after notice, in the involuntary termination of the domestic corporation or the revocation

of the registration of the foreign corporation.

Please note that a document on file with the Secretary of State is a public record that is subject to public

access and disclosure. When providing address information for a director or officer, use a business or

post office box address rather than a residence address if privacy concerns are an issue.

Instructions for Form

 File Number: It is recommended that the file number assigned by the Secretary of State be provided to

facilitate processing of the document.

 1—Corporation Name: Provide the legal name of the corporation. Changes to the name of the

corporation require an amendment to the certificate or registration of the corporation. See Additional

Documentation instructions below.

 2—Jurisdictional Information: Provide the state or other jurisdiction under the laws of which the

corporation is formed.

 3—Registered Agent: The registered agent can be either: (option A) a domestic entity or a foreign entity

that is registered to do business in Texas; or (option B) an individual resident of the state. The corporation

cannot act as its own registered agent; do not enter the entity name as the name of the registered agent.

Consent: A person designated as the registered agent of an entity must have consented, either in a written or

electronic form, to serve as the registered agent of the entity. Although consent is required, a copy of the

person’s written or electronic consent need not be submitted with the periodic report. The liabilities and

penalties imposed by Sections 4.007 and 4.008 of the BOC apply with respect to a false statement in a filing

instrument that names a person as the registered agent of an entity without that person’s consent. (BOC §

5.207)

 4—Registered Office Address: The registered office address must be located at a street address where

service of process may be personally served on the entity’s registered agent during normal business hours.

Although the registered office is not required to be the entity’s principal place of business, the registered

office may not be solely a mailbox service or telephone answering service. (BOC § 5.201)

Form 802 ─ Page 2 of 5



5—Principal Office Address: Provide the street or mailing address of the principal office of the

corporation in the state or country under the laws of which the corporation is incorporated if the corporation

is a foreign corporation.

 6—Directors: Provide the name and address of each member of the board of directors. A corporation is

generally managed by a board of directors. However, a corporation that has members may be managed by

its members or by a board of directors. A minimum of three directors is required. If the space provided is

insufficient, include the information as an attachment to this form for item 6.

 7—Officers: Provide the name, address, and title of each officer. The officers of a corporation must

include a president and a secretary and may also consist of one or more vice-presidents, a treasurer, and

such other officers and assistant officers as may be deemed necessary. Any one person may serve in more

than one office, except the offices of president and secretary. If the space provided is insufficient, include

the information as an attachment to this form for item 7.

 Execution: Pursuant to Section 4.001 of the BOC, the periodic report must be signed by a person

authorized by the BOC to act on behalf of the entity in regard to the filing instrument. Generally, a

governing person or managerial official of the entity signs a filing instrument. The periodic report need not

be notarized; however, before signing, please read the statements on this form carefully. The designation or

appointment of a person as registered agent by an organizer or managerial official is an affirmation by the

organizer or managerial official that the person named in the instrument as registered agent has consented to

serve in that capacity. (BOC § 5.2011)

A person commits an offense under Section 4.008 of the BOC if the person signs or directs the filing of a

filing instrument the person knows is materially false with the intent that the instrument be delivered to the

Secretary of State for filing. The offense is a Class A misdemeanor unless the person’s intent is to harm or

defraud another, in which case the offense is a state jail felony.

 Filing Fees: The filing fee for a periodic report for a nonprofit corporation is $5. If the corporation has

forfeited its right to conduct affairs for failure to file the periodic report within thirty (30) days of the first

notification, the fee is the original $5 plus a late fee of $1 per month or part of a month for one hundred

twenty (120) days following the forfeiture, but not less than $5 nor more than $25.



Additional Documentation:

Name Change (optional): To change the name of the corporation at the same time of filing the required

periodic report, an amendment (Form 424 or 412, as appropriate) and filing fee of $25 and Form 802 and

filing fee (as stated in Filing Fees), must be submitted at the same time to the Reports Unit for filing.

Reinstatement: If the report is not filed within the one hundred twenty (120) day period from the date of

the second notification, the domestic corporation will be involuntarily terminated or the registration of the

foreign corporation will be revoked. The corporation may be relieved of the involuntary termination or

revocation and reinstated by filing the required periodic report (Form 802) and filing fee of $25.

Tax Clearance from Comptroller of Public Accounts: If the corporation is not tax exempt, a tax

clearance letter from the Texas Comptroller of Public Accounts stating that the filing entity has satisfied

all franchise tax liabilities and may be reinstated is required to be filed with Form 802 and filing fee of

$25. Form 811 is not required when reinstating. Contact the Comptroller for assistance in complying

with franchise tax filing requirements and obtaining the necessary tax clearance letter by email at:

tax.help@cpa.state.tx.us

or by calling (800) 252-1381 or (512) 463-4600.

Form 802 ─ Page 3 of 5

Amendment to Certificate of Formation or Registration: The name of the corporation must be

available at the time of reinstatement. The administrative rules adopted for determining entity name

availability (Texas Administrative Code, Title 1, Part 4, Chapter 79, subchapter C) may be viewed at:

http://www.sos.state.tx.us/tac/index.shtml A preliminary determination on “name availability” may be

obtained by calling (512) 463-5555 or e-mail to: corpinfo@sos.state.tx.us

At the time of reinstating, if the corporation name is no longer available, or if written consent is required

but cannot be obtained for the use of the name, simultaneously submit: (A) a certificate of amendment

to the certificate of formation to change the name of the domestic entity as a condition of reinstatement;

or (B) an amended registration to state the assumed name under which the foreign entity shall transact

business. The amendment (Form 424 or 412, as appropriate) and filing fee of $25 and Form 802 and

filing fee of $25, and the tax clearance letter, must be submitted at the same time to the Reports Unit for

filing. Forms 424 and 412 are available at: http://www.sos.state.tx.us/corp/forms_boc.shtml

Upon completing the reinstatement process of submitting all required forms, paying all applicable filing

fees, and meeting all filing requirements, the status of the nonprofit corporation will be changed to in

existence.

 Payment Instructions: Accepted methods of payment are: (1) a check or money order payable through a

U.S. bank or financial institution made payable to the Secretary of State; (2) a valid American Express,

Discover, MasterCard, or Visa credit card (subject to a statutorily authorized convenience fee of 2.7% of the

total fees incurred); (3) a funded LegalEase account; or (4) a prefunded Secretary of State client account.

Use Form 815 at: http://www.sos.state.tx.us/corp/forms_reports.shtml to pay by credit card, LegalEase, or

client account.

 Delivery Instructions: Submit the completed form(s), with the filing fees, in duplicate to the Secretary of

State. Mail to: Secretary of State, Reports Unit, P.O. Box 12028, Austin, Texas 78711-2028; deliver to:

James Earl Rudder Office Building, Reports Unit, 1019 Brazos, Suite 505, Austin, Texas 78701; or fax to:

(512) 463-1423 (requires Form 815 for payment). On filing the document(s), the Secretary of State will

return the appropriate evidence of filing to the submitter together with a file-stamped copy of the document,

if a duplicate copy was provided as instructed. If you require additional assistance, you may contact the

Reports Unit at: (512) 475-2705.

Revised 07/13

Form 802

(Revised 08/12)

Submit in duplicate to:

Secretary of State

Reports Unit

P.O. Box 12028

Austin, TX 78711-2028

Phone: (512) 475-2705

FAX: (512) 463-1423

Dial: 7-1-1 for Relay Services

Filing Fee: See Instructions

This space reserved for filing office use.

Periodic Report

of a

Nonprofit Corporation

File Number:

1. The name of the corporation is: (A name change requires an amendment; see Instructions)

(Set forth state or foreign country)

2. It is incorporated under the laws of:

3. The name of the registered agent is:

A. The registered agent is a corporation (cannot be entity named above) by the name of:

B. The registered agent is an individual resident of the state whose name is:

First Name MI Last Name Suffix

4. The registered office address, which is identical to the business address of the registered agent in Texas, is:

(Only use street or building address; see Instructions)

Street Address City State

Zip Code

5. If the corporation is a foreign corporation, the address of its principal office in the state or country under

the laws of which it is incorporated is:

Street or Mailing Address City State Zip Code Country

6. The names and addresses of all directors of the corporation are: (A minimum of three directors is required.)

(If additional space is needed, include the information as an attachment to this form for item 6.)

First Name MI Last Name Suffix

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Street or Mailing Address City State Zip Code Country

Form 802 ─ Page 4 of 5

Form 802 ─ Page 5 of 5

7. The names, addresses, and titles of all officers of the corporation are: (The offices of president and secretary

must be filled, but both may not be held by the same officer.)

(If additional space is needed, include the information as an attachment to this form for item 7.)

First Name MI Last Name Suffix

Officer Title

President

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Officer Title

Secretary

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Officer Title

Street or Mailing Address City State Zip Code Country

Execution:

The undersigned affirms that the person designated as registered agent has consented to the appointment. The

undersigned signs this document subject to the penalties imposed by law for the submission of a materially

false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under

the provisions of law governing the entity to execute the filing instrument.

Date:

Signature of authorized officer

Reset

Form 803 ─ Page 1 of 5

Form 803—General Information

(Annual Statement – Professional Association)

The attached form is drafted to meet minimal statutory filing requirements pursuant to the relevant

code provisions. This form and the information provided are not substitutes for the advice and services of an

attorney and tax specialist.

Commentary

A professional association is required by Section 302.012 of the Texas Business Organizations Code (BOC) to

file with the Office of the Secretary of State by June 30

of each year an annual statement regarding licensure

that lists the names and addresses of all members, officers, and directors of the association. The due date of the

annual statement is not dependent upon the date of formation of the professional association. The failure to file

the annual statement when due will result, after notice, in the termination of the existence of the domestic

professional association or the revocation of the registration of the foreign professional association.

Please note that a document on file with the Secretary of State is a public record that is subject to public

access and disclosure. When providing address information for a director, executive committee

member, or officer, use a business or post office box address rather than a residence address if privacy

concerns are an issue.

Instructions for Form

 File Number: It is recommended that the file number assigned by the Secretary of State be provided to

facilitate processing of the document.

 Report Year: Provide the report year in the space provided.

 1—Association Name: Provide the legal name of the professional association. Changes to the name of the

professional association require an amendment to the certificate or registration of the association. See

Additional Documentation instructions below.

 2—Jurisdictional Information: Provide the state or other jurisdiction under the laws of which the

professional association is formed.

 3—Registered Agent: The registered agent can be either (option A) a domestic entity or a foreign entity

that is registered to do business in Texas; or (option B) an individual resident of the state. The association

cannot act as its own registered agent; do not enter the entity name as the name of the registered agent.

Consent: A person designated as the registered agent of an entity must have consented, either in a written or

electronic form, to serve as the registered agent of the entity. Although consent is required, a copy of the

person’s written or electronic consent need not be submitted with the annual statement. The liabilities and

penalties imposed by Sections 4.007 and 4.008 of the BOC apply with respect to a false statement in a filing

instrument that names a person as the registered agent of an entity without that person’s consent. (BOC §

5.207)

 4—Registered Office Address: The registered office address must be located at a street address where

service of process may be personally served on the entity’s registered agent during normal business hours.

Although the registered office is not required to be the entity’s principal place of business, the registered

office may not be solely a mailbox service or a telephone answering service. (BOC § 5.201)

When completing items 5 through 7, set forth the name of the individual in the format specified. Do not use

prefixes (e.g., Mr., Mrs., Ms.). Use the suffix box only for titles of lineage (e.g., Jr., Sr., III) and not for

other suffixes or titles (e.g., M.D., Ph.D.).

 5—Members: Each member must be an individual licensed to render the professional service of the

association. Provide the name and address of each member of the professional association. If the space

provided is insufficient, include the information as an attachment to this form for item 5.

 6—Directors or Executive Committee Members: A professional association is governed and managed

either by a board of directors or an executive committee. Each director or committee member must be a

member of the association whose name appears in item 5. Provide the name and address of each member of

the board of directors or executive committee. If the space provided is insufficient, include the information

as an attachment to this form for item 6.

 7—Officers: The officers of a professional association must include a president and secretary. Any one

person may serve in more than one office. Each officer must be a member of the association whose name

appears in item 5. The president of a professional association must also be a member of the board of

directors or executive committee whose name appears in item 6. Provide the name, address, and title of

each officer. If the space provided is insufficient, include the information as an attachment to this form for

item 7.

 8—Statement of Licensure: The annual statement must include a statement that all members are licensed

to perform the type of service for which the association is formed, or, in the case of a multi-practice

professional association, that each member is licensed to perform professional services falling within the

scope of practice of the practitioner.

 Execution: Pursuant to Section 302.012(b) of the BOC, the annual statement must be signed by an

authorized officer. Generally a governing person or managerial official of the entity signs a filing

instrument. The annual statement need not be notarized; however, before signing, please read the

statements on this form carefully. The designation or appointment of a person as registered agent by an

organizer or managerial official is an affirmation by the organizer or managerial official that the person

named in the instrument as registered agent has consented to serve in that capacity. (BOC § 5.2011)

A person commits an offense under Section 4.008 of the BOC if the person signs or directs the filing of a

filing instrument the person knows is materially false with the intent that the instrument be delivered to the

Secretary of State for filing. The offense is a Class A misdemeanor unless the person’s intent is to harm or

defraud another, in which case the offense is a state jail felony.

 Filing Fees: The filing fee for an annual statement for a professional association is $35. The professional

association becomes delinquent for failure to file the annual statement by June 30

. If the professional

association has become delinquent for failure to file the annual statement by June 30

, the filing fee is the

original $35 for ninety (90) days following the delinquency notice.

 Additional Documentation:

Name Change (optional): To change the name of the professional association at the same time of filing the

required annual statement, an amendment (Form 424 or 406, as appropriate) and filing fee of $150 and

Form 803 and filing fee (as stated in Filing Fees), must be submitted at the same time to the Reports Unit

for filing.

Reinstatement: If the annual statement is not filed within the ninety (90) day period following the second

notification, the existence of the domestic professional association will be terminated or the registration of

the foreign professional association will be revoked. The professional association may be relieved of the

Form 803 ─ Page 2 of 5

Form 803 ─ Page 3 of 5

involuntary termination or revocation and reinstated by filing: (A) the required certificate of reinstatement

(Form 814) and filing fee of $75, and (B) the required annual statement(s) (Form 803) and filing fee of $35

for each required annual statement. Form 814 is available at:

http://www.sos.state.tx.us/corp/forms_reports.shtml

Tax Clearance from Comptroller of Public Accounts: A Certificate of Reinstatement (Form 814)

must be accompanied by a tax clearance letter from the Texas Comptroller of Public Accounts stating

that the filing entity has satisfied all franchise tax liabilities and may be reinstated. Contact the

Comptroller for assistance in complying with franchise tax filing requirements and obtaining the

necessary tax clearance letter by email at: tax.help@cpa.state.tx.us or by calling (800) 252-1381 or

(512) 463-4600.

Amendment to Certificate of Formation or Registration: The name of the association must be

available at the time of reinstatement. The administrative rules adopted for determining entity name

availability (Texas Administrative Code, Title 1, Part 4, Chapter 79, subchapter C) may be viewed at:

http://www.sos.state.tx.us/tac/index.shtml A preliminary determination on “name availability” may be

obtained by calling (512) 463-5555 or e-mail to: corpinfo@sos.state.tx.us

At the time of filing the reinstatement, if the professional association name is no longer available, or if

written consent is required but cannot be obtained for the use of the name, simultaneously submit (A) a

certificate of amendment to the certificate of formation to change the name of the domestic entity as a

condition of reinstatement; or (B) an amended registration to state the assumed name under which the

foreign entity shall transact business. The amendment (Form 424 or 406, as appropriate) and filing fee

of $150 must be submitted at the same time as the certificate of reinstatement and annual statement(s).

Forms 424 and 406 are available at: http://www.sos.state.tx.us/corp/forms_boc.shtml

Upon completing the reinstatement process of submitting all required forms, paying all applicable filing

fees, and meeting all filing requirements, the status of the professional association will be changed to in

existence.

 Payment Instructions: Accepted methods of payment are: (1) a check or money order payable through a

U.S. bank or financial institution made payable to the Secretary of State; (2) a valid American Express,

Discover, MasterCard, or Visa credit card (subject to a statutorily authorized convenience fee of 2.7% of the

total fees incurred); (3) a funded LegalEase account; or (4) a prefunded Secretary of State client account.

Use Form 815 at: http://www.sos.state.tx.us/corp/forms_reports.shtml to pay by credit card, LegalEase, or

client account.

 Delivery Instructions: Submit the completed form(s), with the filing fees, in duplicate to the Secretary of

State. Mail to: Secretary of State, Reports Unit, P.O. Box 12028, Austin, Texas 78711-2028; deliver to:

James Earl Rudder Office Building, Reports Unit, 1019 Brazos, Suite 505, Austin, Texas 78701; or fax to:

(512) 463-1423 (requires Form 815 for payment). On filing the document(s), the Secretary of State will

return the appropriate evidence of filing to the submitter together with a file-stamped copy of the document,

if a duplicate copy was provided as instructed. If you require additional assistance, you may contact the

Reports Unit at: (512) 475-2705.

Revised 02/15

This space reserved for filing office use.

Annual Statement

of a

Professional Association

Form 803

(revised 02/15)

Submit in duplicate to:

Secretary of State

Reports Unit

P.O. Box 12028

Austin, TX 78711-2028

Phone: (512) 475-2705

Fax: (512) 463-1423

Dial: 7-1-1 for Relay Services

Filing Fee: See Instructions

File Number: Year:

1. The name of the professional association is: (A name change requires an amendment; see Instructions)

2. It is organized under the laws of: (Set forth state or foreign country)

3. The name of the registered agent is:

A. The registered agent is an organization (cannot be entity named above) by the name of:

B. The registered agent is an individual resident of the state whose name is:

Suffix Last Name MI First Name

4. The registered office address, which is identical to the business address of the registered agent in Texas, is:

(Only use street or building address; see Instructions)

Street Address City State

Zip Code

5. The names and addresses of all members of the association are: (required)

(If additional space is needed, include the information as an attachment to this form for item 5.)

First Name MI Last Name Suffix

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Street or Mailing Address City State Zip Code Country

Form 803 ─ Page 4 of 5

Form 803 ─ Page 5 of 5

6. The names and addresses of all directors or executive committee members of the association are: (required)

(Each must be a licensed member named in item 5.)

(If additional space is needed, include the information as an attachment to this form for item 6.)

First Name MI Last Name Suffix

Director

Exec. Comm. Member

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Director

Exec. Comm. Member

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Director

Exec. Comm. Member

Street or Mailing Address City State Zip Code Country

7. The names, addresses, and titles of all officers of the association are: (required)

(Each must be a licensed member named in item 5. The offices of president and secretary must be filled, but both may be held by the same member.)

(If additional space is needed, include the information as an attachment to this form for item 7.)

First Name MI Last Name Suffix

Officer Title

President

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Officer Title

Secretary

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Officer Title

Vice-President

Street or Mailing Address City State Zip Code Country

First Name MI Last Name Suffix

Officer Title

Treasurer

Street or Mailing Address City State Zip Code Country

8. All members are licensed to perform the type of service for which the association is formed; or, in the case

of a multi-practice professional association, that each member is licensed to perform professional services

falling within the scope of practice of the practitioner.

Execution: The undersigned affirms that the person designated as registered agent has consented to the

appointment. The undersigned signs this document subject to the penalties imposed by law for the

submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the

undersigned is authorized under the provisions of law governing the entity to execute the filing instrument.

Date:

Signature of authorized officer

Printed or typed name of officer and title

Reset

Form 804 ─ Page 1 of 5

Form 804—General Information

(Periodic Report – Limited Partnership)

The attached form is drafted to meet minimal statutory filing requirements pursuant to the relevant

code provisions. This form and the information provided are not substitutes for the advice and services of an

attorney and tax specialist.

Commentary

A limited partnership is required by Section 153.301 of the Texas Business Organizations Code (BOC) to file a

periodic report that lists the names and addresses of each general partner of the limited partnership. The Office of

the Secretary of State may require a domestic limited partnership or a foreign limited partnership registered to

transact business in this state to file a periodic report not more than once every four years. The failure to file the

report when due will result, after notice, in the termination of the certificate of formation of the domestic limited

partnership or the revocation of registration of the foreign limited partnership.

Please note that a document on file with the Secretary of State is a public record that is subject to public

access and disclosure. When providing address information for a general partner, use a business or post

office box address rather than a residence address if privacy concerns are an issue.

Instructions for Form

 File Number: It is recommended that the file number assigned by the Secretary of State be provided to

facilitate processing of the document.

 1—Limited Partnership Name: Provide the legal name of the limited partnership. Changes to the name

of the limited partnership require an amendment to the certificate or registration of the limited partnership.

See Additional Documentation instructions below.

 2—Jurisdictional Information: Provide the state or other jurisdiction under the laws of which the limited

partnership is formed.

 3—Registered Agent: The registered agent can be either: (option A) a domestic entity or a foreign entity

that is registered to do business in Texas; or (option B) an individual resident of the state. The limited

partnership cannot act as its own registered agent; do not enter the entity name as the name of the registered

agent.

Consent: A person designated as the registered agent of an entity must have consented, either in a written or

electronic form, to serve as the registered agent of the entity. Although consent is required, a copy of the

person’s written or electronic consent need not be submitted with the periodic report. The liabilities and

penalties imposed by Sections 4.007 and 4.008 of the BOC apply with respect to a false statement in a filing

instrument that names a person as the registered agent of an entity without that person’s consent. (BOC §

5.207)

 4—Registered Office Address: The registered office address must be located at a street address where

service of process may be personally served on the entity’s registered agent during normal business hours.

Although the registered office is not required to be the entity’s principal place of business, the registered

office may not be solely a mailbox service or telephone answering service. (BOC § 5.201)

 5—Principal Office Address: The address of the principal office in the United States where records are to

be kept or made available must include the street or building address, including apartment or suite number,

city, state, zip code, and country.

Form 804 ─ Page 2 of 5



6—General Partner: Provide the name and address of each general partner on record with the Secretary of

State for the limited partnership. If the space provided is insufficient, include the information as an

attachment to this form for item 6. Address changes for existing general partners are allowed. Additions or

deletions of general partners, or changing the name of an existing general partner require an amendment to

the certificate or registration of the limited partnership. See Additional Documentation instructions below.

 Execution: Pursuant to Section 153.302(3) of the BOC, the periodic report must be signed by at least one

general partner. If the general partner is a legal entity such as a corporation, a person authorized to execute

documents on behalf of such entity must sign the periodic report. For example: Jane Esquire, President of

ABC Incorporators, Inc. In this case, please print the entity name on the “Signed on behalf of the limited

partnership” line, followed by the signature of an officer on the “By (general partner)” line. If the general

partner is an individual, please print the individual’s name on the “Signed on behalf of the limited

partnership” line, followed by the individual’s signature on the “By (general partner)” line. The periodic

report need not be notarized; however, before signing, please read the statements on this form carefully.

The designation or appointment of a person as registered agent by an organizer or managerial official is an

affirmation by the organizer or managerial official that the person named in the instrument as registered

agent has consented to serve in that capacity. (BOC § 5.2011)

A person commits an offense under Section 4.008 of the BOC if the person signs or directs the filing of a

filing instrument that the person knows is materially false with intent that the instrument be delivered to the

Secretary of State for filing. The offense is a Class A misdemeanor unless the person’s intent is to harm or

defraud another, in which case the offense is a state jail felony.

 Filing Fees: The filing fee for a periodic report for a limited partnership is $50. If the limited partnership

has forfeited its right to conduct affairs for failure to file the periodic report within thirty (30) days of the

first notification, the fee is the original $50 plus a late fee of $25 per month or part of a month for one

hundred twenty (120) days following the forfeiture (maximum late fee $100).

 Additional Documentation:

Name Change (optional): To change the name of the limited partnership at the same time of filing the

required periodic report, an amendment (Form 424 or 412, as appropriate) and filing fee of $150 and Form

804 and filing fee (as stated in Filing Fees), must be submitted at the same time to the Reports Unit for

filing.

General Partner Change: To add, delete, or change the name of an existing general partner at the same

time of filing the required periodic report, an amendment (Form 424 or 412, as appropriate) and filing fee of

$150 and Form 804 and filing fee (as stated in Filing Fees), must be submitted at the same time to the

Reports Unit for filing.

Reinstatement: If the report is not filed within the one hundred twenty (120) day period from the date of

the second notification, the certificate of formation of the domestic limited partnership will be terminated or

the registration of the foreign limited partnership will be revoked. The limited partnership may be relieved

of the termination or revocation and reinstated by submitting the required periodic report (Form 804) and

filing fee which totals $225 ($50 filing fee for the report, $100 late fee, and a $75 reinstatement fee).

Tax Clearance from Comptroller of Public Accounts: A tax clearance letter from the Texas

Comptroller of Public Accounts stating that the filing entity has satisfied all franchise tax liabilities and

may be reinstated is required to be filed with Form 804 and filing fee of $225. Form 811 is not required

when reinstating. Contact the Comptroller for assistance in complying with franchise tax filing

requirements and obtaining the necessary tax clearance letter by email at: tax.help@cpa.state.tx.us or

by calling (800) 252-1381 or (512) 463-4600.

Form 804 ─ Page 3 of 5

Amendment to Certificate of Formation or Registration: The name of the partnership must be

available at the time of reinstatement. The administrative rules adopted for determining entity name

availability (Texas Administrative Code, Title 1, Part 4, Chapter 79, subchapter C) may be viewed at:

http://www.sos.state.tx.us/tac/index.shtml A preliminary determination on “name availability” may be

obtained by calling (512) 463-5555 or e-mail to: corpinfo@sos.state.tx.us

At the time of reinstating, if the limited partnership name is no longer available, or if written consent is

required but cannot be obtained for the use of the name, simultaneously submit: (A) a certificate of

amendment to the certificate of formation to change the name of the domestic entity as a condition of

reinstatement; or (B) an amended registration to state the assumed name under which the foreign entity

shall transact business. The amendment (Form 424 or 412, as appropriate) and filing fee of $150 and

Form 804 and filing fee of $225, and the tax clearance letter, must be submitted at the same time to the

Reports Unit for filing. Forms 424 and 412 are available at:

http://www.sos.state.tx.us/corp/forms_boc.shtml

Upon completing the reinstatement process of submitting all required forms, paying all applicable filing

fees, and meeting all filing requirements, the status of the limited partnership will be changed to in

existence.

 Payment Instructions: Accepted methods of payment are: (1) a check or money order payable through a

U.S. bank or financial institution made payable to the Secretary of State; (2) a valid American Express,

Discover, MasterCard, or Visa credit card (subject to a statutorily authorized convenience fee of 2.7% of the

total fees incurred); (3) a funded LegalEase account; or (4) a prefunded Secretary of State client account.

Use Form 815 at: http://www.sos.state.tx.us/corp/forms_reports.shtml to pay by credit card, LegalEase, or

client account.

 Delivery Instructions: Submit the completed form(s), with the filing fees, in duplicate to the Secretary of

State. Mail to: Secretary of State, Reports Unit, P.O. Box 12028, Austin, Texas 78711-2028; deliver to:

James Earl Rudder Office Building, Reports Unit, 1019 Brazos, Suite 505, Austin, Texas 78701; or fax to:

(512) 463-1423 (requires Form 815 for payment). On filing the document(s), the Secretary of State will

return the appropriate evidence of filing to the submitter together with a file-stamped copy of the document,

if a duplicate copy was provided as instructed. If you require additional assistance, you may contact the

Reports Unit at: (512) 475-2705.

Revised 07/13

Form 804 ─ Page 4 of 5

Form 804

(Revised 11/12)

Submit in duplicate to:

Secretary of State

Reports Unit

P.O. Box 12028

Austin, TX 78711-2028

Phone: (512) 475-2705

FAX: (512) 463-1423

Dial: 7-1-1 for Relay Services

Filing Fee: See Instructions

This space reserved for filing office use.

Periodic Report

of a

Limited Partnership

File Number:

1. The name of the limited partnership is: (A name change requires an amendment; see Instructions)

2. It is organized under the laws of: (Set forth state or foreign country)

3. The name of the registered agent is:

A. The registered agent is an organization (cannot be entity named above) by the name of:

B. The registered agent is an individual resident of the state whose name is:

First Name MI Last Name Suffix

4. The registered office address, which is identical to the business address of the registered agent in Texas, is:

(Only use street or building address; see Instructions)

Street Address City State

Zip Code

5. The address of the principal office in the United States where the records are to be kept or made available

is: (Only use street or building address; see Instructions)

Street or Mailing Address City State Zip Code Country

USA

6. The names and addresses of all general partners of the limited partnership are:

(Address changes are allowed;

additions or deletions of general partners, or a name change of an existing general partner require an amendment; see Instruction 6.)

NAME AND ADDRESS OF GENERAL PARTNER (Enter the name of either an individual or an organization, but not both.)

IF INDIVIDUAL

First Name MI Last Name Suffix

IF ORGANIZATION

Organization Name

Street or Mailing Address City State Zip Code Country

Form 804 ─ Page 5 of 5

NAME AND ADDRESS OF GENERAL PARTNER (Enter the name of either an individual or an organization, but not both.)

IF INDIVIDUAL

First Name MI Last Name Suffix

IF ORGANIZATION

Organization Name

Street or Mailing Address City State Zip Code Country

NAME AND ADDRESS OF GENERAL PARTNER (Enter the name of either an individual or an organization, but not both.)

IF INDIVIDUAL

First Name MI Last Name Suffix

IF ORGANIZATION

Organization Name

Street or Mailing Address City State Zip Code Country

Execution:

The undersigned affirms that the person designated as registered agent has consented to the appointment. The

undersigned signs this document subject to the penalties imposed by law for the submission of a materially

false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under

the provisions of law governing the entity to execute the filing instrument.

Date:

Signed on behalf of the limited partnership

By (general partner)

Reset

Form 811—General Information

(Certificate of Reinstatement)

The attached form is designed to meet minimal statutory filing requirements pursuant to the relevant

code provisions. This form and the information provided are not substitutes for the advice and services of an

attorney and tax specialist.

Commentary

This form may be used to reinstate: (1) the existence of a domestic filing entity that has been voluntarily

terminated; (2) the existence of a domestic filing entity that has been involuntarily terminated by action

of the secretary of state; or (3) the registration of a foreign filing entity whose registration has been

revoked by action of the secretary of state.

Do Not Use This Form If:

 The entity’s existence or registration was forfeited under the Tax Code. See Form 801.

 The entity is a professional association that was terminated or revoked for failure to timely file

an annual statement. See Form 814.

 The entity was terminated or revoked by court order.

 Time Frames for Reinstatement 

 Voluntarily Terminated Domestic Entity: Certificate of reinstatement must be filed no later than the

third (3

) anniversary of the effective date of the termination. (See part 4A of the form.)

 Involuntarily Terminated Domestic Entity: Certificate of reinstatement may be filed at any time so

long as the entity would otherwise have continued to exist. However, the entity is considered to have

continued in existence without interruption from the date of termination only if the entity is

reinstated before the third (3

) anniversary of the date of involuntary termination. (See 4B.)

 Revoked Foreign Entity Registration: Certificate of reinstatement must be filed no later than the

third (3

) anniversary of the effective date of the revocation. (See 4C.)

Instructions for Form

 Item 1—Entity Name and File Number: Set forth the legal name of the entity and the secretary of

state file number. For a foreign filing entity that was registered to transact business in Texas under a

different name, also set forth the assumed name under which the entity was registered.

 Item 2—Jurisdictional Information: To ensure that the correct entity is reinstated, the jurisdiction

of organization and the entity’s date of organization or registration in Texas should be provided.

 Item 3—Date of Termination or Revocation: Provide the effective date of the termination or

revocation. In the case of a terminated domestic entity that has delayed the effectiveness of the

filing of its certificate of termination, provide the effective date as stated on the certificate.

 Item 4—Conditions for Reinstatement: Select the grounds or conditions for reinstatement. Do not

check more than one box. If unsure, verify the reason for inactive status by contacting the secretary

of state at (512) 463-5555, 7-1-1 for relay services, corpinfo@sos.state.tx.us or on-line through

SOSDirect. (Visit http://www.sos.state.tx.us/corp/sosda/index.shtml for SOSDirect information.)

4A. Reinstatement of a Texas Entity Following Voluntary Termination: Sections 11.201 and 11.202

of the BOC permit reinstatement no later than the third anniversary of the effective date of

termination if the owners, members, governing persons, or other persons specified by the BOC

approve the reinstatement in the manner provided by the title of the BOC governing the entity and:

Form 811

(1) the termination was by mistake or was inadvertent;

(2) the termination occurred without the approval of the entity’s governing persons when approval

is required by the title of the BOC governing the entity;

(3) the process of winding up before termination had not been completed by the entity; or

(4) the legal existence of the entity is necessary to convey or assign property, to settle or release a

claim or liability, to take an action, or to sign an instrument or agreement.

4B. Reinstatement of a Texas Entity Following Involuntary Termination: Section 11.251 of the BOC

authorizes the secretary of state to involuntarily terminate a domestic filing entity, other than a

domestic real estate investment trust, if the secretary finds that the entity has failed to:

(1) file a report within the period required by law or to pay a fee or penalty prescribed by law

when due and payable;

(2) maintain a registered agent or registered office in Texas as required by law; or

(3) pay a fee required in connection with a filing, or payment of the fee was dishonored when

presented by the state for payment.

As a condition to reinstatement, the entity must correct the circumstances that led to termination and

any other circumstances of the type described above, including paying any fees, interest or penalties.

4C. Reinstatement of a Foreign Entity Following Revocation: Section 9.101 of the BOC authorizes

the secretary of state to revoke the registration of a foreign filing entity if the secretary finds that the

entity has failed to:

(1) file a report within the period required by law or to pay a fee or penalty prescribed by law

when due and payable;

(2) maintain a registered agent or registered office in Texas as required by law;

(3) amend its registration when required by law; or

(4) pay a fee required in connection with a filing, or payment of the fee was dishonored when

presented by the state for payment.

As a condition to reinstatement, the entity must correct the circumstances that led to revocation and

any other circumstances of the type described above, including paying any fees, interest or penalties.

 Item 5—Registered Agent and Registered Office: An entity requesting reinstatement must

provide the secretary of state with current registered agent and registered office information. The

registered agent can be either (option A) a domestic entity or a foreign entity that is registered to do

business in Texas or (option B) an individual resident of the state. The entity cannot act as its own

registered agent; do not enter the entity name as the name of the registered agent.

An entity that was involuntarily terminated or that had its registration revoked for failure to maintain

a registered agent or registered office in Texas need not submit an additional filing to change the

registered agent or registered office.

Consent: A person designated as the registered agent of an entity must have consented, either in a

written or electronic form, to serve as the registered agent of the entity. Although consent is

required, a copy of the person’s written or electronic consent need not be submitted with the

reinstatement. The liabilities and penalties imposed by sections 4.007 and 4.008 of the BOC apply

with respect to a false statement in a filing instrument that names a person as the registered agent of

an entity without that person’s consent. (BOC § 5.207)

Office Address Requirements: The registered office address must be located at a street address

where service of process may be personally served on the entity’s registered agent during normal

Form 811

business hours. Although the registered office is not required to be the entity’s principal place of

business, the registered office may not be solely a mailbox service or telephone answering service

(BOC § 5.201).

 Entity Name Availability: The reinstatement cannot be filed if the entity name is the same as,

deceptively similar to, or similar to the name of any existing domestic or foreign filing entity, or any

name reservation or registration filed with the secretary of state. The administrative rules for

determining entity name availability (Texas Administrative Code, title 1, part 4, chapter 79,

subchapter C) may be viewed at http://www.sos.state.tx.us/tac/index.shtml.

If the entity name is no longer available or written consent for the use of the name is required but

cannot be obtained, the entity must amend its certificate of formation or application for registration,

as appropriate, to state an available name. The amendment must be submitted at the same time as the

certificate of reinstatement.

 Tax Clearance: Unless the entity is a nonprofit corporation, a certificate of reinstatement must be

accompanied by a tax clearance letter from the Texas Comptroller of Public Accounts stating that

the entity has satisfied all franchise tax liabilities and may be reinstated.

Contact the Comptroller for assistance in complying with franchise tax filing requirements and

obtaining the necessary tax clearance letter. The Comptroller may be contacted by e-mail at

tax.help@cpa.state.tx.us or by calling (800) 252-1381 or (512) 463-4600.

 Execution: The reinstatement must be signed by a person authorized to act on behalf of the entity in

regard to the filing instrument. Generally, a governing person or managerial official of the entity

signs a filing instrument.

The certificate of reinstatement need not be notarized. However, before signing, please read the

statements on this form carefully. The designation or appointment of a person as the registered

agent by a managerial official is an affirmation by that official that the person named in the

instrument has consented to serve as registered agent. (BOC § 5.2011)

A person commits an offense under section 4.008 of the BOC if the person signs or directs the filing

of a filing instrument the person knows is materially false with the intent that the instrument be

delivered to the secretary of state for filing. The offense is a Class A misdemeanor unless the

person’s intent is to harm or defraud another, in which case the offense is a state jail felony.

 Payment and Delivery Instructions: Unless the entity is a nonprofit corporation or cooperative

association, the filing fee for reinstatement following an involuntary termination or revocation is

$75, and the filing fee for reinstatement following a voluntary termination is $15. The filing fee for

reinstating a nonprofit corporation or a cooperative association is $5.

Fees may be paid by personal checks, money orders, LegalEase debit cards, or American Express,

Discover, MasterCard, and Visa credit cards. Checks or money orders must be payable through a

U.S. bank or financial institution and made payable to the secretary of state. Fees paid by credit card

are subject to a statutorily authorized convenience fee of 2.7 percent of the total fees. Applicable

fees for any additional filings required as a condition for reinstatement must be submitted together

with the appropriate filing fee for the certificate of reinstatement.

Submit the completed form in duplicate along with the filing fee. The form may be mailed to P.O.

Box 13697, Austin, Texas 78711-3697; faxed to (512) 463-5709; or delivered to the James Earl

Rudder Office Building, 1019 Brazos, Austin, Texas 78701. If a document is transmitted by fax,

credit card information must accompany the transmission (Form 807). On filing the document, the

secretary of state will return the appropriate evidence of filing to the submitter together with a file-

stamped copy of the document, if a duplicate copy was provided as instructed.

Revised 05/11

Form 811

This space reserved for office use.

Form 811

(Revised 05/11)

Submit in duplicate to:

Secretary of State

P.O. Box 13697

Austin, TX 78711-3697

512 463-5555

FAX: 512 463-5709

Filing Fee: See instructions

Certificate of

Reinstatement

1. The name of the entity is:

The entity is a foreign entity that was required to obtain its registration under a name that differs from

the legal name stated above. The name under which the entity is registered is:

The file number issued to the filing entity by the secretary of state is:

2. The jurisdiction of organization of the entity is:

(state or country)

The entity was organized or obtained its certificate of registration on:

mm/dd/yyyy

3. The effective date of the entity’s termination or revocation is:

mm/dd/yyyy

4. The condition giving rise to the termination of the entity’s existence or the revocation of its

registration is described below. The entity requests reinstatement under the following code provision:

(Select the appropriate box below. Do not check more than one box.)

4A. Reinstatement of a Texas Entity Following a Voluntary Termination (3 year limit)

The domestic filing entity requests reinstatement under section 11.202 of the BOC following the

filing of a certificate of termination. The undersigned certifies that the conditions for reinstatement of

the entity’s certificate of formation are met and that the reinstatement of the filing entity has been

approved in the manner provided by the Texas Business Organizations Code.

4B. Reinstatement of a Texas Entity Following an Involuntary Termination

The domestic filing entity requests reinstatement of its certificate of formation after the

involuntary termination of its existence by the secretary of state pursuant to subchapter F of chapter 11

of the Code. The entity has corrected the circumstances giving rise to its involuntary termination and

has taken any other action required for its reinstatement, including the payment of any fees, interest,

or penalties. The undersigned certifies that the reinstatement of the filing entity has been approved in

the manner required by the Texas Business Organizations Code.

4C. Reinstatement Following Revocation of Registration of a Foreign Entity (3 year limit)

The foreign filing entity requests the reinstatement of its certificate of registration after its

revocation by the secretary of state pursuant to subchapter C of chapter 9 of the BOC. The entity has

corrected the circumstances giving rise to its revocation and has taken any other action required for its

reinstatement, including the payment of any fees, interest, or penalties.

Form 811

5. The name of the entity’s registered agent and the address of the entity’s registered office are as

follows: (Select and complete either A or B and complete C)

A. The registered agent is an organization (cannot be the entity seeking reinstatement) by the name of:

B. The registered agent is an individual resident of the state whose name is set forth below:

First Name M.I. Last Name Suffix

C. The business address of the registered agent and the registered office address is:

Street Address City

State Zip Code

The street address of the registered office as stated in this instrument is the same as the registered

agent’s business address.

Additional Documentation or Filings

Comptroller of Public Accounts Tax Clearance Letter (Required, unless entity is a nonprofit corporation.)

Amendment to Certificate of Formation or Registration (Required if entity name is no longer available.)

Other

(A certificate of reinstatement may be conditioned on the submission of additional filings. See instructions.)

Execution

The undersigned affirms that the person designated as registered agent has consented to the

appointment. The undersigned signs this document subject to the penalties imposed by law for the

submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the

undersigned is authorized under the provisions of law governing the entity to execute the filing

instrument.

Date:

By:

Signature of authorized person (see instructions)

Printed or typed name of authorized person

Form 811

Reset

Form 814—General Information

(Certificate of Reinstatement of a Professional Association After Failure to File Annual Statement)

The attached form is designed to meet minimal statutory filing requirements pursuant to the relevant

code provisions. This form and the information provided are not substitutes for the advice and services of an

attorney and tax specialist.

Commentary

A professional association may be terminated or revoked if the association fails to file the annual statement

required by section 302.012 of the Texas Business Organizations Code (BOC). This form may be used to

reinstate the existence of a Texas professional association or the registration of a foreign professional

association that has been terminated or revoked, respectively, for failing to timely file the annual statement.

Do Not Use This Form If:

 The professional association’s existence or registration was forfeited under the Tax Code. See Form 801

at: http://www.sos.state.tx.us/corp/forms_reports.shtml

 The professional association was terminated or revoked by the Secretary of State for a reason other than

failure to file an annual statement. See Form 811 at: http://www.sos.state.tx.us/corp/forms_reports.shtml

 Time Frames for Reinstatement 

 Domestic Professional Association: A certificate of reinstatement after involuntary termination for failing to

file an annual statement may be filed at any time so long as the association would otherwise have continued

to exist. The association is considered to have continued in existence without interruption from the date of

termination; however, only if the association is reinstated before the third (3 ) anniversary of the date of

involuntary termination.

 Foreign Professional Association: An application for reinstatement after revocation for failing to file an

annual statement must be filed no later than the third (3 ) anniversary of the date of revocation.

Instructions for Form

 Item 1—Association Name and File Number: Provide the legal name of the association and the Secretary

of State file number. For a foreign professional association that was registered to transact business in Texas

under a different name, also provide the assumed name under which the association was registered.

 Item 2—Jurisdictional Information: It is recommended that the jurisdiction of organization and the

association’s date of formation or registration in Texas be provided to ensure that the correct professional

association is reinstated.

 Item 3—Date of Involuntary Termination or Revocation: Provide the effective date of the involuntary

termination or revocation of the association’s existence or registration.

 Item 4—Conditions for Reinstatement: The certificate of reinstatement must include a statement that the

circumstances giving rise to the involuntary termination or revocation have been corrected. To correct the

circumstances, the association must submit each delinquent annual statement (Form 803) due at the time of

submission of the reinstatement. If the reinstatement is not accompanied by each delinquent annual

statement, the reinstatement must be rejected. To verify the number of statements due, contact the Reports

Unit at (512) 475-2705.

Form 814 ─ Page 1 of 4



Item 5—Registered Agent: A professional association that requests reinstatement is required to provide

the Secretary of State with current registered agent and registered office information. This information is

required even if the information is also included in each annual statement that accompanies the

reinstatement. The registered agent can be either (option A) a domestic entity or a foreign entity that is

registered to do business in Texas or (option B) an individual resident of the state. The association cannot

act as its own registered agent; do not enter the entity name as the name of the registered agent.

Consent: A person designated as the registered agent of an entity must have consented, either in a written or

electronic form, to serve as the registered agent of the entity. Although consent is required, a copy of the

person’s written or electronic consent need not be submitted with the reinstatement. The liabilities and

penalties imposed by sections 4.007 and 4.008 of the BOC apply with respect to a false statement in a filing

instrument that names a person as the registered agent of an entity without that person’s consent. (BOC §

5.207)

 Item 6—Registered Office Address: The registered office address must be located at a street address

where service of process may be personally served on the entity’s registered agent during normal business

hours. Although the registered office is not required to be the entity’s principal place of business, the

registered office may not be solely a mailbox service or telephone answering service. (BOC § 5.201) A

post office box is not sufficient as a registered office address unless the registered office is located in a town

with a population of less than 5,000.

 Additional Documentation and Filings:

Tax Clearance from Comptroller of Public Accounts: A Certificate of Reinstatement must be

accompanied by a tax clearance letter from the Texas Comptroller of Public Accounts stating that the filing

entity has satisfied all franchise tax liabilities and may be reinstated. Contact the Comptroller for assistance

in complying with franchise tax filing requirements and obtaining the necessary tax clearance letter by email

at: tax.help@cpa.state.tx.us by calling (800) 252-1381 or (512) 463-4600.

Annual Statement: An annual statement (Form 803) and applicable filing fee are due at the time of

reinstatement for each delinquent year. Form 803 is at: http://www.sos.state.tx.us/corp/forms_reports.shtml

Amendment to Certificate of Formation or Registration: A Certificate of Reinstatement must be

accompanied by an amendment to the certificate of formation or registration if the professional association

name is the same as or deceptively similar to the name of any existing domestic or foreign filing entity, or

any name reservation or registration filed with the Secretary of State. Amendment would also be required

for a similar name if consent could not be obtained. The administrative rules adopted for determining entity

name availability (Texas Administrative Code, Title 1, Part 4, Chapter 79, subchapter C) may be viewed at:

http://www.sos.state.tx.us/tac/index.shtml A preliminary determination on “name availability” may be

obtained by calling (512) 463-5555 or e-mail to: corpinfo@sos.state.tx.us

At the time of filing the reinstatement, if the professional association name is no longer available, or if

written consent is required but cannot be obtained for the use of the name, simultaneously submit (A) a

certificate of amendment to the certificate of formation to change the name of the domestic entity as a

condition of reinstatement; or (B) an amended registration to state the assumed name under which the

foreign entity shall transact business. The amendment (Form 424 or 406, as appropriate) and applicable

filing fee ($150) must be submitted at the same time as the certificate of reinstatement and annual

statement(s). Forms 424 and 406 are available at: http://www.sos.state.tx.us/corp/forms_boc.shtml

Upon completing the reinstatement process of submitting all required forms, paying all applicable filing

fees, and meeting all filing requirements, the status of the professional association will be changed to in

existence.

Form 814 ─ Page 2 of 4



Execution: The reinstatement must be signed by an officer of the professional association. The

reinstatement need not be notarized; however, before signing, please read the statements on this form

carefully. The designation or appointment of a person as the registered agent by a managerial official is an

affirmation by that official that the person named in the instrument has consented to serve as registered

agent. (BOC § 5.2011)

A person commits an offense under section 4.008 of the BOC if the person signs or directs the filing of a

filing instrument the person knows is materially false with the intent that the instrument be delivered to the

Secretary of State for filing. The offense is a Class A misdemeanor unless the person’s intent is to harm or

defraud another, in which case the offense is a state jail felony.

 Filing Fees: The filing fee for the reinstatement (Form 814) is ($75) and for each delinquent annual

statement (Form 803) that must be submitted with the reinstatement is ($35). The filing fee for an

amendment (Form 424 or 406) if required as a condition of reinstatement is ($150).

 Payment Instructions: Accepted methods of payment are: (1) a check or money order payable to the

Secretary of State; (2) a valid American Express, Discover, MasterCard, or Visa credit card; (3) a funded

LegalEase account; or (4) a prefunded Secretary of State client account. Checks and money orders must be

payable through a U.S. bank or financial institution; credit card transactions are subject to a statutorily

authorized convenience fee of 2.7% of the total fees incurred, if applicable. Use Form 815 at:

http://www.sos.state.tx.us/corp/forms_reports.shtml to pay by credit card, LegalEase, or client account.

 Delivery Instructions: Submit the completed form(s) in duplicate, along with payment of the applicable

filing fees, to the Secretary of State. Mail to: Secretary of State, Reports Unit, P.O. Box 12028, Austin,

Texas 78711-2028; deliver to: James Earl Rudder Office Building, Reports Unit, 1019 Brazos, Suite 505,

Austin, Texas 78701; or fax to: (512) 463-1423. On filing the document, the Secretary of State will return

the appropriate evidence of filing to the submitter together with a file-stamped copy of the document, if a

duplicate copy was provided as instructed.

Revised 06/11

Form 814 ─ Page 3 of 4

Form 814

(Revised 06/11)

Submit in duplicate to:

Secretary of State

Reports Unit

P.O. Box 12028

Austin, TX 78711-2028

Phone: (512) 475-2705

Fax: (512) 463-1423

Dial: 7-1-1 for Relay Services

Filing Fee: $75

This space reserved for office use.

Certificate of Reinstatement

of a Professional Association

After Failure to File

Annual Statement

1. The name of the professional association is:

The association was required to register in Texas under the following assumed name: (if applicable)

The file number issued to the association by the secretary of state is:

2. The jurisdiction of organization of the association is:

(state or country)

The association was organized or obtained its registration on:

mm/dd/yyyy

3. The effective date of the association’s involuntary termination or revocation is:

mm/dd/yyyy

4. The association certifies that the circumstances giving rise to its involuntary termination or revocation

have been corrected by the submission of each annual statement due, and, further, that the association has

satisfied its obligations under the Tax Code and all conditions for reinstatement have been met.

5. A. The registered agent is an organization (cannot be the entity seeking reinstatement) by the name of:

B. The registered agent is an individual resident of the state whose name is:

First Name M.I. Last Name Suffix

6. The registered office address, which is identical to the business address of the registered agent in Texas, is:

(use street or building address; see Instructions)

Street Address City State

Zip Code

Additional Documentation and Filings

Comptroller of Public Accounts Tax Clearance Letter (Required)

Annual Statement(s) (Include each annual statement (Form 803) and applicable filing fee(s) due at time of reinstatement.)

Amendment to Certificate of Formation or Registration (Required only if entity name is no longer available and include applicable fee.)

Execution

The undersigned affirms that the person designated as registered agent has consented to the appointment. The

undersigned signs this document subject to the penalties imposed by law for the submission of a materially

false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized under

the provisions of law governing the entity to execute the filing instrument.

Date: By:

Signature of authorized officer

Printed or typed name of officer and title

Form 814 ─ Page 4 of 4

Reset

Request for Certicate of Account Status to

Terminate a Taxable Entity’s Existence in Texas or Registration

An entity that intends to terminate its legal existence or registration must satisfy ling requirements for all taxes administered by the Comptroller under Title 2 of

the Texas Tax Code. In addition, all accounts for those taxes must be closed. To determine if the entity is current in tax requirements, or to close any open tax

accounts, call us at 1-800-252-1381 or 512-463-4600. More information about this process is available online at www.comptroller.texas.gov/taxes/franchise/.

05-359

(Rev.2-17/13)

Termination Merger Entity conversion

Section B - Texas Entity - If the entity was formed in Texas, indicate the ling for which the certicate is required.

Please indicate how you would like to receive your certicate:

FAX number Telephone number

FAX (area code and number) ________________________________ (area code and number) ___________________________________

.PDF Email address ______________________________________________________________________________________________

Mail Mailing address ______________________________________ City _____________________ State _______ ZIP code __________

Does this entity have a forfeited certicate or registration that needs to be reinstated before ending its existence

or registration in Texas? .................................................................................................................................................................. YES NO

You can le documents online with the Secretary of State using SOSDirect at www.sos.state.tx.us/corp/sosda/index.shtml.

Section D - Receiving Your Certicate

Under Ch. 559, Government Code, you are entitled to review, request and correct information we have on le about you, with limited exceptions in accordance with Ch. 552,

Government Code. To request information for review or to request error correction, contact us at the address or phone number listed on this form.

Entity’s legal name Taxpayer number File number (from the Texas Secretary of State)

The day before the combined

group’s accounting year

begin date ............................................

1. Is the entity a member of an afliated group that will be required to le a combined report? ...................................................... YES NO

If “YES,” enter the following information for the entity that will report on your behalf. If “NO,” skip to Section B.

2. Is the entity’s accounting year begin date on or after the combined group’s accounting year

begin date on its franchise tax report? ......................................................................................................................................... YES NO

If “YES,” this entity’s information must be included in the combined group report. If “NO,” enter the following information:

Legal name of reporting entity Texas taxpayer number / FEI number

This entity’s

month day year month day year

accounting year

begin date ............................................

Section A - Entity Information

Your name (Please type or print) Phone number and extension

Authorized agent

Mail to: Comptroller of Public Accounts

P.O. Box 149348

Austin, TX 78714-9348

Visit us online at www.comptroller.texas.gov/taxes/franchise/

or call 1-800-252-1381 or 512-463-4600.

1. Is the entity still conducting business in Texas? .......................................................................................................................... YES

3. Does the entity currently have an active charter in its home state? ............................................................................................

2. If “NO,” enter the entity’s last day of business in Texas ...........................................

YES NO

4. If “NO,” indicate the type and date of termination:

Termination effective date .........................

Merger effective date ................................. Name of survivor _______________________________________

Entity conversion effective date .................

month day year

Note: If the home state charter has been terminated, home state documentation must be included. The home state documentation must bear the seal of

the appropriate ling agency and the effective date of the ling.

Section C - Non-Texas Entity - If the entity was formed outside of Texas, please complete the following information.

Your account will be reviewed to determine eligibility. If eligible, a certicate will be sent using the format selected. If not eligible, we will notify you in

writing what is required to be eligible. All requests are processed in the order they are received regardless of the format you select. Assistance is

also available at your local eld ofce. Field ofce locations are available online at www.comptroller.texas.gov/about/contact/locations.php.

PRINT FORM

CLEAR FIELDS

Tax Clearance Letter Request for Reinstatement

In order to reinstate an entity, the Texas Secretary of State requires evidence that the entity has met certain franchise tax

requirements. To provide this evidence, the Comptroller’s ofce issues a Tax Clearance Letter, Form 05-377. This letter must

be included as part of the reinstatement ling with the Secretary of State.

Information about other ling requirements with the Secretary of State is online at www.sos.state.tx.us.

Obtaining a Tax Clearance Letter

All franchise tax reports and signed Information Reports through the reinstatement date must be led. All franchise tax, penalty

and interest must be paid.

• If all required reports and payments are already on le, complete and return this request.

• If all required reports and payments are not on le, send any missing reports and payments along with this request.

05-391

(Rev.2-17/5)

Taxpayer name 11-digit Texas taxpayer number

Requestor name (Type or print.) Telephone number and extension

Date

FOR ASSISTANCE: Franchise tax information is available online at www.comptroller.texas.gov/taxes/franchise/. For additional assistance,

call 1-800-252-1381.

You have certain rights under Chapters 552 and 559, Government Code, to review, request and correct information we have on le about you. Contact us at

the address or phone number listed on this form.

Please select only one:

Mail Recipient: __________________________________________________________________

__________________________________________________________________

and ZIP code: __________________________________________________________________

ess: ____________________________________________________________________________________________

er (Area code and number): __________________________________________________________________________

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Select how the Tax Clearance Letter should be sent. Please note that requests are processed in the order received, regardless

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Mail this request and all missing reports and/or payments to:

Comptroller of Public Accounts

P.O. Box 149348

Austin, TX 78714-9348

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The Walking Dead: Forfeitures and Involuntary Terminations of (Baylor University)

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