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A BILL TO BE ENTITLED
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AN ACT
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relating to partnerships and limited liability companies. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Effective January 1, 2016, Section 4.158, |
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Business Organizations Code, is amended to read as follows: |
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Sec. 4.158. FILING FEES: GENERAL PARTNERSHIPS. For a |
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filing by or for a general partnership, the secretary of state shall |
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impose the following fees: |
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(1) for filing a limited liability partnership |
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application, $200 for each partner; |
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(2) for filing a limited liability partnership annual |
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report [renewal application], $200 for each partner on the date of |
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filing of the report or, in the case of any past due annual report, |
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$200 for the number of partners as of May 31 of the year that the |
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report was due [renewal]; |
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(3) for filing an application for registration by a |
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foreign limited liability partnership, $200 for each partner in |
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this state, except that the maximum fee may not exceed $750; |
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(4) for filing a renewal of registration by a foreign |
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limited liability partnership, $200 for each partner in this state, |
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except that the maximum fee may not exceed $750; |
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(5) for filing a certificate of amendment for a |
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domestic limited liability partnership, $10, plus $200 for each |
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partner added by the amendment; |
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(6) for filing a certificate of amendment for a |
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foreign limited liability partnership, $10, plus $200 for each |
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partner in this state added by amendment not to exceed $750; and |
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(7) for filing any other filing instrument, the filing |
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fee imposed for a similar instrument under Section 4.155. |
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SECTION 2. Subchapter B, Chapter 101, Business |
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Organizations Code, is amended by adding Section 101.055 to read as |
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follows: |
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Sec. 101.055. IRREVOCABLE POWER OF ATTORNEY. (a) This |
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section applies only to: |
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(1) a power of attorney with respect to matters |
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relating to the organization, internal affairs, or termination of a |
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limited liability company; or |
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(2) a power of attorney granted by: |
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(A) a person as a member of or assignee of a |
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membership interest in a limited liability company; or |
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(B) a person seeking to become a member of or |
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assignee of a membership interest in a limited liability company. |
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(b) A power of attorney is irrevocable for all purposes if |
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the power of attorney: |
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(1) is coupled with an interest sufficient in law to |
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support an irrevocable power; and |
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(2) states that it is irrevocable. |
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(c) Unless otherwise provided in the power of attorney, an |
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irrevocable power of attorney created under this section is not |
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affected by the subsequent death, disability, incapacity, winding |
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up, dissolution, termination of existence, or bankruptcy of, or any |
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other event concerning, the principal. |
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(d) A power of attorney granted to the limited liability |
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company, a member of the company, or any of their respective |
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officers, directors, managers, members, partners, trustees, |
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employees, or agents is conclusively presumed to be coupled with an |
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interest sufficient in law to support an irrevocable power. |
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SECTION 3. Section 152.002(b), Business Organizations |
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Code, is amended to read as follows: |
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(b) A partnership agreement or the partners may not: |
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(1) unreasonably restrict a partner's right of access |
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to books and records under Section 152.212; |
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(2) eliminate the duty of loyalty under Section |
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152.205, except that the partners by agreement may identify |
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specific types of activities or categories of activities that do |
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not violate the duty of loyalty if the types or categories are not |
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manifestly unreasonable; |
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(3) eliminate the duty of care under Section 152.206, |
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except that the partners by agreement may determine the standards |
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by which the performance of the obligation is to be measured if the |
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standards are not manifestly unreasonable; |
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(4) eliminate the obligation of good faith under |
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Section 152.204(b), except that the partners by agreement may |
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determine the standards by which the performance of the obligation |
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is to be measured if the standards are not manifestly unreasonable; |
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(5) vary the power to withdraw as a partner under |
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Section 152.501(b)(1), (7), or (8), except for the requirement that |
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notice be in writing; |
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(6) vary the right to expel a partner by a court in an |
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event specified by Section 152.501(b)(5); |
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(7) restrict rights of a third party under this |
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chapter or the other partnership provisions, except for a |
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limitation on an individual partner's liability in a limited |
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liability partnership as provided by this chapter; |
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(8) select a governing law not permitted under |
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Sections 1.103 and 1.002(43)(C); or |
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(9) except as provided in Subsections (c) and (d), |
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waive or modify the following provisions of Title 1: |
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(A) Chapter 1, if the provision is used to |
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interpret a provision or to define a word or phrase contained in a |
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section listed in this subsection; |
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(B) Chapter 2, other than Sections 2.104(c)(2), |
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2.104(c)(3), and 2.113; |
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(C) Chapter 3, other than Subchapters C and E of |
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that chapter; or |
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(D) Chapters 4, 5, 10, 11, and 12, other than |
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Sections 11.057(a), (b), (c)(1), (c)(3), [and] (d), and (f). |
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SECTION 4. Effective January 1, 2016, Section 152.802, |
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Business Organizations Code, is amended by amending Subsections |
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(a), (c), (e), (f), and (h) and adding Subsections (c-1) and (k) to |
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read as follows: |
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(a) In addition to complying with Section 152.803, a |
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partnership, to become a limited liability partnership, must file |
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an application for registration with the secretary of state in |
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accordance with Chapter 4 and this section. The application must: |
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(1) set out: |
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(A) the name of the partnership; |
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(B) the federal taxpayer identification number |
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of the partnership; |
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(C) the street address of the partnership's |
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principal office in this state or outside of this state, as |
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applicable; and |
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(D) the number of partners at the date of |
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application; and |
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(2) contain a brief statement of the partnership's |
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business. |
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(c) A partnership is registered as a limited liability |
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partnership by the secretary of state on: |
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(1) the date on which a completed [initial or renewal] |
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application is filed in accordance with Chapter 4; or |
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(2) a later date specified in the application. |
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(c-1) An application for registration of a limited |
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liability partnership accepted by the secretary of state is an |
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effective registration and is conclusive evidence of the |
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satisfaction of all conditions precedent to an effective |
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registration. |
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(e) The registration of a limited liability partnership is |
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effective until it is withdrawn or terminated [the first
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anniversary of the date of registration or a later effective date,
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unless the application is:
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[(1) withdrawn or revoked at an earlier time; or
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[(2) renewed in accordance with Subsection (g)]. |
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(f) A registration may be withdrawn by filing a withdrawal |
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notice with the secretary of state in accordance with Chapter 4. A |
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certificate from the comptroller stating that all taxes |
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administered by the comptroller under Title 2, Tax Code, have been |
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paid must be filed with the notice of withdrawal. A withdrawal |
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notice terminates the status of the partnership as a limited |
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liability partnership from the date on which the notice is filed or |
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a later date specified in the notice[, but not later than the
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expiration date under Subsection (e)]. A withdrawal notice must: |
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(1) contain: |
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(A) the name of the partnership; |
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(B) the federal taxpayer identification number |
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of the partnership; |
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(C) the date of registration of the partnership's |
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[last] application under this subchapter; and |
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(D) the current street address of the |
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partnership's principal office in this state and outside this |
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state, if applicable; and |
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(2) be signed by: |
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(A) a majority-in-interest of the partners; or |
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(B) one or more partners authorized by a |
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majority-in-interest of the partners. |
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(h) The secretary of state may remove from its active |
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records the registration of a limited liability partnership the |
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registration of which has [:
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[(1)] been withdrawn or terminated [revoked; or
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[(2) expired and not been renewed]. |
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(k) Except in a proceeding by the state to terminate the |
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registration of a limited liability partnership, the registration |
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of a limited liability partnership continues in effect so long as |
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there has been substantial compliance with the registration |
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provisions of this section and substantial compliance with the |
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annual reporting requirements of Section 152.806. |
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SECTION 5. Effective January 1, 2016, Subchapter J, Chapter |
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152, Business Organizations Code, is amended by adding Section |
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152.806 to read as follows: |
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Sec. 152.806. ANNUAL REPORT. (a) Not later than June 1 of |
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each year following the calendar year in which the application for |
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registration as a limited liability partnership takes effect, a |
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limited liability partnership that has an effective registration |
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shall file with the secretary of state, in accordance with Chapter |
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4, a report that contains: |
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(1) the name of the partnership; and |
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(2) the number of partners of the partnership as of the |
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date of filing of the report or, in the case of any past due annual |
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reports, the number of partners as of May 31 of each year that a |
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report was due. |
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(b) Not later than March 31 of each year, the secretary of |
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state shall provide to each limited liability partnership that had |
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an effective registration as of December 31 of the preceding year a |
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written notice stating that: |
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(1) the annual report and applicable filing fee are |
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due on June 1 of that year; and |
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(2) the registration of the partnership shall be |
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terminated unless the report is filed and the filing fee is paid on |
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or before the date prescribed by Subsection (c). |
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(c) The registration of a limited liability partnership |
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that fails to file an annual report or pay the required filing fee |
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not later than May 31 of the calendar year following the year in |
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which the report or fee is due is automatically terminated. |
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(d) A termination of registration under Subsection (c) |
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affects only the partnership's status as a limited liability |
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partnership and is not an event requiring a winding up and |
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termination of the partnership under Chapter 11. |
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(e) A partnership whose registration as a limited liability |
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partnership is terminated under Subsection (c) may apply to the |
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secretary of state for reinstatement of limited liability |
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partnership status not later than the third anniversary of the |
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effective date of the termination. The application must be filed in |
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accordance with Chapter 4 and contain: |
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(1) the name of the partnership; |
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(2) the effective date of the termination; and |
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(3) a statement that the circumstances giving rise to |
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the termination will be corrected by filing an annual report and |
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paying the filing fee for each year that an annual report was not |
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filed, including the annual report and filing fee due that year. |
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(f) An application for reinstatement must be accompanied by |
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a tax clearance letter from the comptroller stating that the |
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limited liability partnership has satisfied all of its franchise |
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tax liabilities under Chapter 171, Tax Code. |
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(g) All annual reports and fees to be filed and paid as |
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required by this section must be filed and paid concurrently with |
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the filing of an application for reinstatement of limited liability |
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partnership status. |
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(h) A reinstatement under Subsection (e) that is approved by |
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the secretary of state relates back to the effective date of the |
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termination and takes effect as of that date, and the partnership's |
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status as a limited liability partnership continues in effect as if |
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the termination of its registration had never occurred. |
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SECTION 6. Section 153.051(a), Business Organizations |
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Code, is amended to read as follows: |
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(a) A general partner shall file a certificate of amendment |
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reflecting the occurrence of one or more of the following events not |
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later than the 30th day after the date on which the event occurred: |
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(1) the admission of a new general partner; |
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(2) the withdrawal of a general partner; |
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(3) a change in the name of the limited partnership; or |
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(4) except as provided by Sections [Section] 5.202 and |
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5.203, a change in: |
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(A) the address of the registered office; or |
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(B) the name or address of the registered agent |
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of the limited partnership. |
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SECTION 7. Subchapter C, Chapter 154, Business |
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Organizations Code, is amended by adding Section 154.204 to read as |
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follows: |
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Sec. 154.204. IRREVOCABLE POWER OF ATTORNEY. (a) This |
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section applies only to: |
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(1) a power of attorney with respect to matters |
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relating to the organization, internal affairs, or termination of a |
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partnership; or |
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(2) a power of attorney granted by: |
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(A) a person as a partner of or a transferee or |
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assignee of a partnership interest in a partnership; or |
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(B) a person seeking to become a partner of or a |
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transferee or assignee of a partnership interest in a partnership. |
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(b) A power of attorney is irrevocable for all purposes if |
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the power of attorney: |
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(1) is coupled with an interest sufficient in law to |
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support an irrevocable power; and |
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(2) states that it is irrevocable. |
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(c) Unless otherwise provided in the power of attorney, an |
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irrevocable power of attorney created under this section is not |
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affected by the subsequent death, disability, incapacity, winding |
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up, dissolution, termination of existence, or bankruptcy of, or any |
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other event concerning, the principal. |
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(d) A power of attorney granted to the partnership, a |
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partner of the partnership, or any of their respective officers, |
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directors, managers, members, partners, trustees, employees, or |
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agents is conclusively presumed to be coupled with an interest |
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sufficient in law to support an irrevocable power. |
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SECTION 8. Effective January 1, 2016, Section 402.001(c), |
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Business Organizations Code, is amended to read as follows: |
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(c) Notwithstanding Subsections (a) and (b), after the |
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effective date of this code, Sections 152.802 and 152.803, instead |
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of prior law, govern a [renewal of registration or other] filing |
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with the secretary of state made on behalf of a domestic limited |
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liability partnership registered under prior law. |
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SECTION 9. Section 101.351, Business Organizations Code, is |
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repealed. |
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SECTION 10. Effective January 1, 2016, Section 152.802(g), |
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Business Organizations Code, is repealed. |
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SECTION 11. Except as otherwise provided by this Act, this |
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Act takes effect September 1, 2015. |