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IV. Title 1. Chapter 3: Formation and Governance

A. Certificate of Formation of a Domestic Entity

Chapter 3 contains general and specific requirements for the certificate of formation of a domestic entity.
  1. Every certificate of formation must contain:
    1. The name of the filing entity to be formed.
    2. The type of filing entity to be formed.
      1. Each secretary of state form (hereinafter “SOS form”) promulgated for the formation of a domestic entity specifically identifies the type of filing entity as a preprinted statement within the form.
      2. When drafting a certificate of formation remember to specifically identify the entity type being formed.  This is especially critical when forming a corporation.  As the term “corporation” includes a for-profit corporation, professional corporation, and a nonprofit corporation, it is not sufficient to simply identify the filing entity as a “corporation.”
    3. The purpose of the entity, unless the entity being formed is a limited partnership.
    4. The duration of the entity, if not perpetual (except for LPs).  Pursuant to section 3.003 of the BOC, a domestic filing entity exists perpetually unless otherwise provided in its certificate of formation.
      1. Under prior law, the duration of existence of a limited partnership was not an element of the certificate of limited partnership filed with the secretary of state.  The BOC carries forward this concept.  However, should the general partners wish to include a stated limited period of duration in the certificate of formation, the SOS will accept it.
      2. An SOS form for the formation of an entity does not contain a provision for the limitation of duration of the entity.  If you wish to limit the duration of the filing entity, you may provide for a limited duration in the “Supplemental Provisions/Information” section of the SOS form.The registered office street address and the name of the registered agent at such office address.
    5. The registered office street address and the name of the registered agent at such office address.
    6. The name and address of each organizer.  Section 3.004 of the BOC sets forth the general requirements for organizers.  An organizer may be a natural person 18 years of age or older, or a corporation or other legal entity.  Generally, only one organizer is required.  There are however exceptions to this general rule.
      1. If forming a domestic limited partnership, the certificate must identify and be signed by each general partner of the partnership.
      2. If forming a domestic real estate investment trust, the certificate of formation must identify each trust manager.  Each trust manager must sign and acknowledge the certificate of formation.  The certificate of formation of a real estate investment trust is not filed with the secretary of state, but filed with the county clerk in the county where the trust’s principal place of business is located.
      3. If forming a domestic professional association, the initial members of the association act as the organizers of the filing entity.  Each initial member must be identified in the certificate of existence and each identified member must sign the certificate of formation.
      4. Although there are no residency requirements for an organizer under the BOC, other state or federal law may require an organizer, owner, or governing person to meet additional or more restrictive requirements.
    7. Any supplemental information required to be included in the certificate of formation for the entity type. (See item 2 below.)
    8. Any other information or provisions not inconsistent with the law governing the entity relating to the organization, ownership, governance, business, or affairs of the entity.
  2. While section 3.005 sets forth the general requirements for the certificate of formation of a domestic entity, other provisions may require the provision of supplemental information for the creation of the entity.  The supplemental requirements for certificates of formation are set forth in chapter 3 as follows:
  1. The provisions of title 2, chapters 20 and 21, and title 7, chapters 301 and 303 govern a domestic professional corporation.  Consequently, when drafting the certificate of formation of a professional corporation, you must provide the supplemental information required for a for-profit corporation under section 3.007 (e.g., capital structure and management information), in addition to the supplemental information required of professional entities under section 3.014.
    1. The BOC effected a change to the ownership provisions for professional corporations.  Under prior law, ownership in a professional corporation (other than a professional legal corporation) is limited to individuals who are licensed to render the same professional service for which the professional corporation is formed.  Under the BOC, a “professional organization,” as well as a “professional individual” may hold an ownership interest in the professional corporation.
    2. A professional corporation’s officers and directors however must still be licensed individuals.
  2. The provisions of title 2, chapters 20 and 21, and title 7, chapters 301 and 302 govern a domestic professional association.  Accordingly, if a professional association is to issue shares in the association, it must provide for its capital structure in its certificate of formation and provide the same information that would be required of a for-profit corporation under section 3.007 of the BOC.
    1. Unlike the Texas Professional Association Act, the BOC, as amended, specifically describes the types of professionals that may form, own, and operate a professional association.  A professional association may be formed only for providing a professional service rendered by a doctor of medicine, doctor of osteopathy, doctor of podiatry, dentist, chiropractor, optometrist, therapeutic optometrist, veterinarian, or licensed mental health professional.  The listing of professionals reflects the professionals who were specifically authorized to form professional associations as of September 2003.  Physician assistants, advance nurse practitioners, nurse anesthetists, and surgical assistants cannot form professional associations.
    2. Ownership and management in a professional association are still limited to individuals who are licensed to perform the professional service for which the professional association was formed.

B. Amended and Restated Certificates of Formation

While Chapter 3 contains the general requirements, look to the title governing the entity to obtain more specific information on the procedure governing the amendment or restatement of a certificate of formation for the entity.

  1. While the BOC eliminates the need to provide specific voting information in a certificate of amendment or restated certificate of formation, the filing instrument still must provide a statement that the transaction was adopted and approved in the manner provided for in the BOC title governing the entity.
  2. The secretary of state has promulgated a certificate of amendment form (SOS form 424), a form for filing a restated certificate of formation that makes further amendments to the certificate (SOS form 414), and a form for filing a restated certificate of formation that makes no further amendments (SOS form 415).  These forms are designed for use by multiple entity types; however, use of these forms is not mandated.
  3. The restated certificate of formation is to be attached to the applicable form as an exhibit.  The restated certificate of formation may omit the name and address of each organizer, but must include information relating to the governing authority.  In the case of a corporation, the restated certificate of formation must provide the names and addresses of the directors of the corporation.  However, the names and addresses of the current board rather than the initial board may be provided.  In the case of a limited partnership, the restated certificate of formation must include the name and address of each general partner.
  4. As the filing requirements under prior law may differ from the filing requirements of the BOC, it is recommended that the practitioner determine whether the filing entity is a BOC or non-BOC entity prior to drafting and submission of a filing instrument.  Use of SOS forms 414, 415, and 424 is not recommended for non-BOC entities and may result in the rejection of the filing instrument.