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
© 2018 Elizabeth S. Miller, All Rights Reserved
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
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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.
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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.
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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
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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.
(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:
(1) over the director's objection; or
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(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
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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
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(Tex.App.–Houston [14 Dist.] 2008, pet. denied); Mello v. A.M.F., Inc., 7 S.W.3d 329, 331
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(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
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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-
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CV-478, 2016 WL 632031 (S.D. Tex. Feb. 17, 2016).
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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.
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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.
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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
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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-
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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 penaltyimposed 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)
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(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.)
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(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
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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
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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.]
th
2010, no pet.), the court of appeals held an officer/director of a forfeited automobile dealership
8
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
th
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
st
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
9
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,
st
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
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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
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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
th
(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.
(c) Except as otherwise provided by this chapter, the existence of a filing entity is
terminated on the issuance of the certificate of termination by the secretary of state.
12
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.
(c) This section and Sections 153.307 and 153.308 do not affect the liability of a
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.
(c) The secretary of state shall note the termination or revocation and the date on the
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
th
13
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
st
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.
(c) The forfeiture of the right to conduct affairs in this state does not:
(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
14
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.
15
(c) If an action on an existing claim by or against a terminated filing entity has been
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
th
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 entityalong 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
16
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
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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)
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(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
17
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
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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
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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.
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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.
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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.).
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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,
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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
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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,
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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
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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)
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(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)
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(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
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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
22
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
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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.]
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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
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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
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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).
25
VOLUNTARY AND INVOLUNTARY WINDING UP AND TERMINATION BY ACT OF ENTITY OR OWNER
1
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
11.057, 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
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;
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
2
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.
substantially all
property outside
ordinary course
of business;
request by
partner in at will
partnership
unless declined
by majority-in-
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.
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.”
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
3
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
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.
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-
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.
decision of all
partners to wind
up under
11.057(b) by
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
4
Corporations
(including Professional
Corporations)
Limited Liability
Companies
(including
Professional
LLCs)
Limited
Partnerships
General
Partnerships
Professional
Associations
Nonprofit
Corporations
one year of event.
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.
expiration of
period of
duration within
three years of
expiration by
written
agreement of all
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
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
VOLUNTARY AND INVOLUNTARY WINDING UP AND TERMINATION BY ACT OF ENTITY OR OWNER
5
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.
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
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;
by mistake or
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
6
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.
1
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.
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
agreement of all
remaining
Written consent
of all
shareholders or
approval of board
Approval of
board and vote
of 2/3 votes of
members
1
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
7
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.
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.
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
1
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
2
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
3
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
4
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
11.253
11.253
11.253
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
5
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
6
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
7
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
171.251-171.257
171.251-171.257
171.251-171.257
171.251-171.257
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
8
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
9
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
10
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
171.312-171.315
171.312-171.315
171.312-171.315
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
11
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
1
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
2
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
3
Print
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:
OR
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
TX
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
Print
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
th
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
th
. If the professional
association has become delinquent for failure to file the annual statement by June 30
th
, 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:
OR
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
TX
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
Print
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:
OR
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
TX
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
OR
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
OR
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
OR
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)
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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
rd
) 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
rd
) 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
rd
) 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
(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
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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
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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 giv