By: Solomons H.B. No. 1787

A BILL TO BE ENTITLED

AN ACT

relating to the designation or appointment of registered agents for service of process, notice, or demand for certain entities; the duties of a registered agent; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 5.201, Business Organizations Code, is amended by amending subsection (b) and by adding new subsections (d), (e) and (f) to read as follows:

(b) The registered agent:

(1) is an agent of the entity on whom may be served any process, notice, or demand required or permitted by law to be served on the entity;

(2) may be:

(A) an individual who:

(i) is a resident of this state; and

(ii) has consented to serve as the registered agent of the entity; or

(B) an organization, other than the domestic or foreign filing entity to be represented, that:

(i) is registered or authorized to do business in this state; and

(ii) has consented to serve as the registered agent of the entity; and

(3) must maintain a business office at the same address as the entity's registered office.

(d) The appointment of an person as registered agent by an organizer or managerial official of domestic or foreign filing entity in a registered agent filing is an affirmation by the organizer or managerial official that the person named as registered agent has consented to serve as such.

(e) A person appointed as the registered agent of a represented entity is not liable by reason of that person's appointment as registered agent for the debts, liabilities and obligations of the represented entity.

(f) The maintenance of a person named as registered agent after the sale, acquisition, or transfer of a majority in interest of the outstanding ownership or membership interests of a represented entity is an affirmation by the governing authority of the represented entity that governing authority has verified that the person named as registered agent consents to continue to serve as such.

SECTION 2. Section 5.204(a) and (d), Business Organizations Code, are amended to read as follows:

Sec. 5.204. RESIGNATION OF REGISTERED AGENT. (a) A registered agent of a filing entity or a foreign filing entity or a person who has been named as an entity's registered agent without the person's consent to the appointment as registered agent may resign as the registered agent by giving notice to that entity and to the appropriate filing officer.

(d) On compliance with Subsection (b) and (c), the appointment of the registered agent and the registered office address terminate[s]. The termination is effective on the 31st day after the date the secretary of state receives the notice.

SECTION 3. Chapter 5, subchpater E, Business Organizations Code, is amended to add new Sections 5.205, 5.206, 5.207 and 5.208 to read as follows:

Sec. 5.205. DUTIES OF REGISTERED AGENT. (a) The only duties of a person appointed as a registered agent are:

(1) to forward to or otherwise notify the represented entity at the address most recently supplied to the agent by the entity any process, notice, or demand that is served on the agent; and

(2) to provide the notices required or permitted by law to be given to the represented entity to the address most recently supplied to the agent by the entity.

(b) A person who has been named as the registered agent for a represented entity without the person's consent is not required to perform the duties described in this section.

Sec. 5.206. DESIGNATION OF REGISTERED AGENT WITHOUT AUTHORIZATION OR CONSENT; PENALTIES AND LIABILITIES. (a) Any organizer, or managerial official of a represented entity, who designates a person as the registered agent for that entity in a registered agent filing without that person's authorization or consent, commits an offense under Section 4.008.

(b) A person who is designated as a registered agent for a represented entity and who has not consented to the appointment as registered agent may recover damages, court costs, and reasonable attorney's fees if the person incurs a loss and the loss is caused by the person's unauthorized appointment as agent.

(c) A person may recover damages under subsection (b) from:

(1) each organizer or other person required to sign the certificate of formation that designated the person as the initial registered agent of the domestic represented entity;

(2) any managerial official of a represented entity who directed the signing and filing of the registered agent filing that designated the person as the entity's registered agent; or

(3) the represented entity that authorized the filing of the registered agent filing.

Sec. 2.507. IMMUNITY FROM LIABILITY. (a) A person who has not consented to serve as registered agent and who has been designated as a registered agent of a represented entity shall not be liable by reason of being named as a registered agent under a judgment, decree, or order of a court, agency, or tribunal of any type, or in any other manner, in this or any other state, or on any other basis, for a debt, obligation, or liability of the represented entity whether arising in contract, tort, or otherwise.

(b) A person who has not consented to serve as registered agent and who has been designated as a registered agent of a represented entity shall not be liable to the represented entity or to a person who reasonably relied on the unauthorized designation by reason of the person's failure or refusal to perform the duties of a registered agent under 5.205.

Sec. 2.508. DEFINITIONS. For purposes of this subchapter:

(1) "Registered agent filing" means:

(A) the certificate of formation of a domestic represented entity;

(B) the application for registration of a foreign represented entity;

(C) an appointment of agent by an unincorporated nonprofit association;

(D) an appointment of agent by a Texas financial institution;

(E) a statement by a represented entity to change its registered office, its registered agent, or both;

(F) a certificate of merger or certificate of conversion;

(G) a certificate of amendment to the certificate of formation or the registration of a represented entity;

(H) a restated certificate of formation of a represented entity;

(I) any other instrument that is required or permitted to be filed by a represented entity that effects a change or correction to the instruments identified in Paragraphs (A) through (H); and

(K) a certificate of reinstatement filed pursuant to chapter 9 or chapter 11 of this code.

(2) "Represented entity" means:

(A) a domestic filing entity;

(B) an unincorporated nonprofit association for which an appointment of agent has been filed;

(C) a Texas financial institution for which an appointment of agent has been filed;

(D) a defense base development authority for which an appointment of agent has been filed;

(E) any corporation, association or other organization incorporated or organized under any special statute of this state that is governed in whole or in part by the Business Organizations Code, or to which the general corporate laws are applicable.

(F) a foreign filing entity for which a registration has been filed;

(G) a foreign limited liability partnership for which a registration has been filed;

(H) a foreign financial institution for which a registration has been filed; and

(I) any corporation, association or other organization incorporated or organized under the laws of a jurisdiction other than Texas that is granted authority to conduct its affairs within this state under any special statute of this state that is governed in whole or in part by the Business Organizations Code, or to which the general corporate laws are applicable.

SECTION 4. The changes in law made by this Act apply only to the designation or appointment of a registered agent made on or after the effective date of this Act. The designation or appointment of a registered agent made before the effective date of this Act is governed by the law in effect on the date the designation or appointment was made, and the former law is continued in effect for that purpose.

SECTION 5. This Act takes effect September 1, 2009.