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X. Title 1. Chapter 11: Reinstatement

A. BOC-Entities May Reinstate After a Voluntary Termination

One of the substantive changes effected by the enactment of the BOC.
  1. Sections 11.201 and 11.202 of the BOC permit a voluntarily terminated (i.e., dissolved/cancelled) domestic entity to reinstate its existence no later than the third anniversary of the effective date of the filing of a certificate of termination if:
    1. the termination was by mistake or was inadvertent;
    2. the termination occurred without the approval of the entity’s governing persons (i.e., directors, managers, general partners) when approval is required by the BOC title 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.
  2. The owners, members, governing persons or other persons specified by the BOC must approve the reinstatement of the entity in the manner provided by the BOC title governing the domestic entity.
  3. Prior to filing the reinstatement, the secretary of state must determine whether the name of the terminated entity being reinstated is the same as, or deceptively similar to that of an existing domestic or foreign entity or a name registration or reservation on file with the secretary of state.  If the entity name does not conform to statutory or administrative requirements for entity names, the reinstatement will be returned and the entity will be required to change its name.
  4. A letter of eligibility from the comptroller of public accounts stating that the filing entity has satisfied all franchise tax liabilities and may be reinstated must be filed with the certificate of reinstatement if the filing entity is a for-profit corporation, professional corporation, or limited liability company.
  5. The certificate of reinstatement must include the name of the entity’s registered agent and its registered office address.
  6. An entity that was involuntarily terminated by the secretary of state, had its existence forfeited under the Tax Code, or was terminated by court order may not be reinstated under section 11.201 of the BOC.

B. Reinstatement After an Involuntary Termination

  1. Existing law establishes a certain timeframe, 36 months, within which a non-BOC nonprofit corporation, for-profit corporation, professional corporation, professional association, and limited liability company must submit an application for reinstatement following an involuntary dissolution by the secretary of state.  Failure to file an application for reinstatement within this timeframe requires the creation of a new entity.
  2. Section 11.253 of the BOC does not establish a timeframe for filing an application for reinstatement following an involuntary termination.  However, if the entity is reinstated prior to the third anniversary of the involuntary termination, the entity is considered to have continued in existence without interruption.
  3. The owners, members, governing persons or other persons specified by the BOC must approve the reinstatement of the entity in the manner provided by the BOC title governing the domestic entity.
  4. Prior to filing the reinstatement, the secretary of state must determine whether the name of the involuntarily terminated entity being reinstated is the same as, or deceptively similar to that of an existing domestic or foreign entity or a name registration or reservation on file with the secretary of state.  If the entity name does not conform to statutory or administrative requirements for entity names, the reinstatement will be returned and the entity will be required to change its name.
  5. A certificate of reinstatement must include any documents needed to correct the circumstances giving rise to the involuntary termination, including the payment of any fees or penalties.  In addition, the certificate of reinstatement must include the name of the entity’s registered agent and its registered office address.
  6. A letter of eligibility from the comptroller of public accounts stating that the filing entity has satisfied all franchise tax liabilities and may be reinstated must be filed with the certificate of reinstatement if the filing entity is a for-profit corporation, professional corporation, or limited liability company.
  7. The filing of the reinstatement shall have no effect on any issue of personal liability of governing persons during the period between the involuntary termination and the entity’s reinstatement.

C. Reinstatement After Revocation of Registration

  1. Pursuant to section 9.104, a foreign filing entity, other than a foreign limited liability partnership, that has had its certificate of registration revoked by the secretary of state must file a certificate of reinstatement no later than the third anniversary of the date of the revocation of the entity’s registration.  The 36-month timeframe is similar to existing law.
  2. A foreign limited liability partnership that has had its certificate of registration revoked by the secretary of state must reinstate no later than the date the registration would have expired had the registration not been revoked.
  3. Failure to file a certificate of reinstatement within the timeframes specified above requires the foreign filing entity to submit a new application for registration.

D. Reinstatement After a Tax Forfeiture

Reinstatement following a forfeiture of existence under the Texas Tax Code is governed by the Tax Code and not by the BOC.

E. SOS Forms for Reinstatement

The secretary of state has promulgated a single form (SOS form 811) that may be used for the reinstatement of a BOC entity, domestic or foreign.  The form may be used to effect a reinstatement following a voluntary termination, an involuntary termination, a revocation of registration, or a tax forfeiture.  Due to the differences in statutory requirements and timeframes, this form should not be used by non-BOC entities.  Until January 1, 2010, a non-BOC entity should continue to use the application for reinstatement form (SOS form 801) promulgated for entities formed before the enactment of the BOC. 

F. Judicial Revocation of Fraudulent Terminations

House Bill 1165, which was passed by the 78th Legislature in 2003, amended the Texas Business Corporation Act and the Texas Non-Profit Corporation Act to provide for the court ordered revocation of articles of dissolution when the corporation was dissolved as a result of actual or constructive fraud.  The secretary of state is authorized to take any action necessary to reactive the corporation and implement the court order.  These legislative changes were carried over to the BOC and apply to all entities.  House Bill 1319, amended chapter 11 of the BOC to add section 11.153, relating to the court ordered revocation of a fraudulent termination of a domestic filing entity.