INTRODUCED
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HOUSE COMMITTEE
SUBSTITUTE
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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.
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SECTION 1. Section 1.002,
Business Organizations Code, is amended by adding Subdivision (21-a) and
amending Subdivision (23) 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.
(23)
"Filing instrument" means an instrument, document, consent,
or statement that is required or authorized by this code to be filed by or
for an entity with the filing officer in accordance with Chapter 4.
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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.
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SECTION 2. Subchapter A,
Chapter 5, Business Organizations Code, is amended by adding Section 5.002
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 accept a name if the entity or person seeking acceptance of the
filing instrument with the indistinguishable name
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.
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SECTION 3. Section 5.053,
Business Organizations Code, is amended to read as follows:
Sec. 5.053. DISTINGUISHABLE
[IDENTICAL AND DECEPTIVELY SIMILAR] NAMES REQUIRED [PROHIBITED].
(a) The name of a [A] filing entity or the name under
which [may not have a name, and] a foreign filing entity registers
[may not register] to transact business in this state must be
distinguishable in the records of the secretary of state from [under
a name, that is the same as, or that the secretary of state determines to
be deceptively similar or similar to]:
(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) [(4)] a
name that is registered under Subchapter 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 [similar]
name.
(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.
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SECTION 3. Section 5.053,
Business Organizations Code, is amended to read as follows:
Sec. 5.053. DISTINGUISHABLE
[IDENTICAL AND DECEPTIVELY SIMILAR] NAMES REQUIRED [PROHIBITED].
(a) The name of a [A] filing entity or the name under
which [may not have a name, and] a foreign filing entity registers
[may not register] to transact business in this state must be
distinguishable in the records of the secretary of state from [under
a name, that is the same as, or that the secretary of state determines to
be deceptively similar or similar to]:
(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) [(4)] a
name that is registered under Subchapter 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 [similar]
name.
(c) Subsection (b) does not apply if the secretary
of state determines that the names are the same.
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SECTION 4. Section 5.102,
Business Organizations Code, is amended to read as follows:
Sec. 5.102. LIMITATION ON
THE RESERVATION OF CERTAIN NAMES [PROHIBITED; EXCEPTIONS].
(a) The secretary of state may [not] reserve a name under this
subchapter only if the name [that] is distinguishable in the
records of the secretary of state from [the same as, or that the
secretary of state considers deceptively similar or similar to]:
(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) [(4)] a
name that is registered under Subchapter 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 [similar] name.
(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.
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SECTION 4. Section 5.102,
Business Organizations Code, is amended to read as follows:
Sec. 5.102. LIMITATION ON
THE RESERVATION OF CERTAIN NAMES [PROHIBITED; EXCEPTIONS].
(a) The secretary of state may [not] reserve a name under this
subchapter only if the name [that] is distinguishable in the
records of the secretary of state from [the same as, or that the
secretary of state considers deceptively similar or similar to]:
(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) [(4)] a
name that is registered under Subchapter 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 [similar] name.
(c) Subsection (b) does not apply if the secretary
of state determines that the names are the same.
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SECTION 5. Section 5.153,
Business Organizations Code, is amended to read as follows:
Sec. 5.153. LIMITATION ON
THE REGISTRATION OF CERTAIN NAMES [REGISTRATIONS PROHIBITED;
EXCEPTIONS]. (a) The secretary of state may [not] register a
name under this subchapter only if the name [that] is distinguishable
in the records of the secretary of state from [the same as, or that
the secretary of state determines to be deceptively similar or similar to]:
(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) [(4)] a
name that is registered under this 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 [similar]
name; or
(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
[conflicting] name is filed with the secretary of state.
(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.
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SECTION 5. Section 5.153,
Business Organizations Code, is amended to read as follows:
Sec. 5.153. LIMITATION ON
THE REGISTRATION OF CERTAIN NAMES [REGISTRATIONS PROHIBITED;
EXCEPTIONS]. (a) The secretary of state may [not] register a
name under this subchapter only if the name [that] is distinguishable
in the records of the secretary of state from [the same as, or that
the secretary of state determines to be deceptively similar or similar to]:
(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) [(4)] a
name that is registered under this 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 [similar]
name; or
(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
[conflicting] name is filed with the secretary of state.
(c) Subsection (b) does not apply if the secretary
of state determines that the names are the same.
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SECTION 6. Section 9.105,
Business Organizations Code, is amended to read as follows:
Sec. 9.105. USE OF DISTINGUISHABLE
NAME REQUIRED [SIMILAR TO PREVIOUSLY REGISTERED NAME]. If
the secretary of state determines that the [a foreign filing
entity's] name of a foreign filing entity or the fictitious
name under which it is registered to transact business in this state does
not comply with Chapter 5 [is the same as, deceptively similar to,
or similar to a name of a filing entity or foreign filing entity as
provided by or reserved or registered under this code], the secretary
of state may not accept 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 [obtains consent
for the use of the similar name].
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SECTION 6. Same as introduced
version.
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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 [SIMILAR TO PREVIOUSLY REGISTERED NAME]. If
the secretary of state determines that a filing entity's name contained in
a certificate of reinstatement filed under Section 11.202 does not
comply with Chapter 5 [is the same as, deceptively similar to, or
similar to a name of a filing entity or foreign entity on file as provided
by or reserved or registered under this code], the secretary of state
may 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 [or
obtains consent for the use of the similar name].
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SECTION 7. Same as introduced
version.
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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.
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No
equivalent provision.
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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.
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No
equivalent provision.
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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.
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No
equivalent provision.
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SECTION 11. This Act takes
effect June 1, 2018.
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SECTION 8. Same as introduced
version.
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