Bill Text: TX SB1835 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to names of domestic and foreign filing entities for transacting business in this state; creating an offense.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-05-16 - Left pending in committee [SB1835 Detail]
Download: Texas-2017-SB1835-Introduced.html
85R7720 TSR-F | ||
By: Estes | S.B. No. 1835 |
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relating to names of domestic and foreign filing entities for | ||
transacting business in this state; creating an offense. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 1.002, Business Organizations Code, is | ||
amended by adding Subdivision (21-a) to read as follows: | ||
(21-a) "Fictitious name" means an assumed name: | ||
(A) that a foreign filing entity adopts for use | ||
because the name of the entity as stated in the entity's certificate | ||
of formation or similar organizational instrument is not available | ||
for use under the laws of this state; and | ||
(B) under which the foreign filing entity is | ||
registered to transact business in this state, in accordance with | ||
Chapter 9. | ||
SECTION 2. Subchapter A, Chapter 5, Business Organizations | ||
Code, is amended by adding Sections 5.002, 5.003, and 5.004 to read | ||
as follows: | ||
Sec. 5.002. EVIDENCE OF ESTABLISHED RIGHT TO | ||
INDISTINGUISHABLE NAME. Notwithstanding Sections 5.053, 5.102, | ||
and 5.153, the secretary of state may register or reserve a name | ||
requested on an application for registration filed by a foreign | ||
filing entity, or an application for reservation or registration of | ||
a name filed by a person, that is not a distinguishable name from | ||
another name that is registered or reserved in the records of the | ||
secretary of state under this chapter if the foreign filing entity | ||
or person delivers to the secretary of state a certified copy of the | ||
final judgment of a court of competent jurisdiction that | ||
establishes the entity's or person's right to the name in this | ||
state. | ||
Sec. 5.003. LIABILITY FOR CERTAIN FALSE WRITTEN STATEMENTS. | ||
(a) This section applies only to a written statement of consent to | ||
use of a name that is provided to the secretary of state under | ||
Section 5.053(b), 5.102(b), or 5.153(b). | ||
(b) A person may recover damages, court costs, and | ||
reasonable attorney's fees if the person incurs a loss and: | ||
(1) the loss is caused by a: | ||
(A) forged written statement; or | ||
(B) delivered written statement that constitutes | ||
an offense under Section 5.004; or | ||
(2) the person reasonably relies on: | ||
(A) a false statement of material fact in a | ||
written statement; or | ||
(B) the omission in a written statement of a | ||
material fact required by this code to be included in the statement. | ||
(c) A person may recover under Subsection (b) from: | ||
(1) each person who forged the forged written | ||
statement or signed the written statement and knew when the | ||
statement was signed of the false statement or omission; | ||
(2) any managerial official of the entity who directed | ||
the signing and delivery of the written statement who knew or should | ||
have known when the statement was signed or filed of the false | ||
statement or omission; or | ||
(3) the entity that authorizes the delivery of the | ||
written statement. | ||
Sec. 5.004. DELIVERY OF FALSE STATEMENT; OFFENSE. (a) A | ||
person commits an offense if the person signs or directs the | ||
delivery of a written statement of consent described by Section | ||
5.053(b), 5.102(b), or 5.153(b) that the person knows is materially | ||
false with intent that the written statement of consent be | ||
delivered on behalf of an entity to the secretary of state. | ||
(b) An offense under this section is a Class A misdemeanor | ||
unless the actor's intent is to defraud or harm another, in which | ||
event the offense is a state jail felony. | ||
SECTION 3. Section 5.053, Business Organizations Code, is | ||
amended to read as follows: | ||
Sec. 5.053. DISTINGUISHABLE [ |
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entity or the name under which [ |
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filing entity registers [ |
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this state must be distinguishable in the records of the secretary | ||
of state from [ |
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(1) the name of another existing filing entity; | ||
(2) the name of a foreign filing entity that is | ||
registered under Chapter 9; | ||
(3) the fictitious name under which a foreign filing | ||
entity is registered to transact business in this state; | ||
(4) a name that is reserved under Subchapter C; or | ||
(5) [ |
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D. | ||
(b) Subsection (a) does not apply if the other entity or the | ||
person for whom the name is reserved or registered, as appropriate, | ||
provides to the secretary of state a notarized written statement of | ||
the entity's or person's consent to the use of the [ |
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(c) If the secretary of state determines that an entity or | ||
person described by Subsection (b) is consenting to the use of a | ||
name that is the same as the name or fictitious name of the entity or | ||
is the same as the name reserved or registered for the entity or | ||
person, the entity's or person's consent is not valid. | ||
SECTION 4. Section 5.102, Business Organizations Code, is | ||
amended to read as follows: | ||
Sec. 5.102. LIMITATION ON THE RESERVATION OF CERTAIN NAMES | ||
[ |
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reserve a name under this subchapter only if the name [ |
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distinguishable in the records of the secretary of state from [ |
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(1) the name of an existing filing entity; | ||
(2) the name of a foreign filing entity that is | ||
registered under Chapter 9; | ||
(3) the fictitious name under which a foreign filing | ||
entity is registered to transact business in this state; | ||
(4) a name that is reserved under this subchapter; or | ||
(5) [ |
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D. | ||
(b) Subsection (a) does not apply if the other entity or the | ||
person for whom the name is reserved or registered, as appropriate, | ||
provides to the secretary of state a notarized written statement of | ||
the entity's or person's consent to the subsequent reservation of | ||
the [ |
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(c) If the secretary of state determines that an entity or | ||
person described by Subsection (b) is consenting to the subsequent | ||
reservation of a name that is the same as the name or fictitious | ||
name of the entity or is the same as the name reserved or registered | ||
for the entity or person, the entity's or person's consent is not | ||
valid. | ||
SECTION 5. Section 5.153, Business Organizations Code, is | ||
amended to read as follows: | ||
Sec. 5.153. LIMITATION ON THE REGISTRATION OF CERTAIN NAMES | ||
[ |
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state may [ |
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name [ |
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state from [ |
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(1) the name of an existing filing entity; | ||
(2) the name of a foreign filing entity that is | ||
registered under Chapter 9; | ||
(3) the fictitious name under which a foreign filing | ||
entity is registered to transact business in this state; | ||
(4) a name that is reserved under Subchapter C; or | ||
(5) [ |
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subchapter. | ||
(b) Subsection (a) does not apply if: | ||
(1) the other entity or the person for whom the name is | ||
reserved or registered, as appropriate, provides to the secretary | ||
of state a notarized written statement of the entity's or person's | ||
consent to the registration of the [ |
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(2) the applicant is a bank, trust company, savings | ||
association, or insurance company that has been in continuous | ||
existence from a date that precedes the date the indistinguishable | ||
[ |
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(c) If the secretary of state determines that an entity or | ||
person described by Subsection (b)(1) is consenting to the | ||
registration of a name that is the same as the name or fictitious | ||
name of the entity or is the same as the name reserved or registered | ||
for the entity or person, the entity's or person's consent is not | ||
valid. | ||
SECTION 6. Section 9.105, Business Organizations Code, is | ||
amended to read as follows: | ||
Sec. 9.105. USE OF DISTINGUISHABLE NAME REQUIRED [ |
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determines that the [ |
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filing entity or the fictitious name under which it is registered to | ||
transact business in this state does not comply with Chapter 5 [ |
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for filing the certificate of reinstatement unless the foreign | ||
filing entity contemporaneously amends its registration to change | ||
its name to a name that complies with Chapter 5, or provides a | ||
fictitious name under which the foreign filing entity will transact | ||
business in this state that complies with Chapter 5 [ |
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SECTION 7. Section 11.203, Business Organizations Code, is | ||
amended to read as follows: | ||
Sec. 11.203. USE OF DISTINGUISHABLE NAME REQUIRED [ |
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determines that a filing entity's name contained in a certificate | ||
of reinstatement filed under Section 11.202 does not comply with | ||
Chapter 5 [ |
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not accept for filing the certificate of reinstatement unless the | ||
filing entity contemporaneously amends its certificate of | ||
formation to change its name to a name that complies with Chapter 5 | ||
[ |
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SECTION 8. Section 5.002, Business Organizations Code, as | ||
added by this Act, applies only to an application filed on or after | ||
the effective date of this Act. An application filed before the | ||
effective date of this Act is governed by the law in effect on the | ||
date the application was filed, and the former law is continued in | ||
effect for that purpose. | ||
SECTION 9. Sections 5.102 and 5.153, Business Organizations | ||
Code, as amended by this Act, apply only to an application for | ||
registration or reservation of a name filed on or after the | ||
effective date of this Act. An application for registration or | ||
reservation of a name filed before the effective date of this Act is | ||
governed by the law in effect on the date the application was filed, | ||
and the former law is continued in effect for that purpose. | ||
SECTION 10. Sections 9.105 and 11.203, Business | ||
Organizations Code, as amended by this Act, apply only to a | ||
certificate of reinstatement filed on or after the effective date | ||
of this Act. A certificate of reinstatement filed before the | ||
effective date of this Act is governed by the law in effect on the | ||
date the certificate of reinstatement was filed, and the former law | ||
is continued in effect for that purpose. | ||
SECTION 11. This Act takes effect June 1, 2018. |