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A BILL TO BE ENTITLED
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AN ACT
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relating to names of domestic and foreign filing entities for |
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transacting business in this state. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 1.002, Business Organizations Code, is |
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amended by adding Subdivision (21-a) and amending Subdivision (23) |
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to read as follows: |
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(21-a) "Fictitious name" means an assumed name: |
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(A) that a foreign filing entity adopts for use |
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because the name of the entity as stated in the entity's certificate |
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of formation or similar organizational instrument is not available |
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for use under the laws of this state; and |
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(B) under which the foreign filing entity is |
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registered to transact business in this state, in accordance with |
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Chapter 9. |
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(23) "Filing instrument" means an instrument, |
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document, consent, or statement that is required or authorized by |
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this code to be filed by or for an entity with the filing officer in |
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accordance with Chapter 4. |
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SECTION 2. Subchapter A, Chapter 5, Business Organizations |
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Code, is amended by adding Section 5.002 to read as follows: |
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Sec. 5.002. EVIDENCE OF ESTABLISHED RIGHT TO |
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INDISTINGUISHABLE NAME. Notwithstanding Sections 5.053, 5.102, |
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and 5.153, the secretary of state may accept a name if the entity or |
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person seeking acceptance of the filing instrument with the |
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indistinguishable name delivers to the secretary of state a |
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certified copy of the final judgment of a court of competent |
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jurisdiction that establishes the entity's or person's right to the |
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name in this state. |
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SECTION 3. Section 5.053, Business Organizations Code, is |
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amended to read as follows: |
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Sec. 5.053. DISTINGUISHABLE [IDENTICAL AND DECEPTIVELY
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SIMILAR] NAMES REQUIRED [PROHIBITED]. (a) The name of a [A] filing |
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entity or the name under which [may not have a name, and] a foreign |
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filing entity registers [may not register] to transact business in |
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this state must be distinguishable in the records of the secretary |
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of state from [under a name, that is the same as, or that the
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secretary of state determines to be deceptively similar or similar
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to]: |
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(1) the name of another existing filing entity; |
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(2) the name of a foreign filing entity that is |
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registered under Chapter 9; |
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(3) the fictitious name under which a foreign filing |
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entity is registered to transact business in this state; |
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(4) a name that is reserved under Subchapter C; or |
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(5) [(4)] a name that is registered under Subchapter |
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D. |
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(b) Subsection (a) does not apply if the other entity or the |
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person for whom the name is reserved or registered, as appropriate, |
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provides to the secretary of state a notarized written statement of |
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the entity's or person's consent to the use of the [similar] name. |
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(c) Subsection (b) does not apply if the secretary of state |
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determines that the names are the same. |
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SECTION 4. Section 5.102, Business Organizations Code, is |
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amended to read as follows: |
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Sec. 5.102. LIMITATION ON THE RESERVATION OF CERTAIN NAMES |
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[PROHIBITED; EXCEPTIONS]. (a) The secretary of state may [not] |
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reserve a name under this subchapter only if the name [that] is |
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distinguishable in the records of the secretary of state from [the
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same as, or that the secretary of state considers deceptively
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similar or similar to]: |
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(1) the name of an existing filing entity; |
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(2) the name of a foreign filing entity that is |
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registered under Chapter 9; |
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(3) the fictitious name under which a foreign filing |
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entity is registered to transact business in this state; |
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(4) a name that is reserved under this subchapter; or |
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(5) [(4)] a name that is registered under Subchapter |
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D. |
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(b) Subsection (a) does not apply if the other entity or the |
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person for whom the name is reserved or registered, as appropriate, |
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provides to the secretary of state a notarized written statement of |
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the entity's or person's consent to the subsequent reservation of |
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the [similar] name. |
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(c) Subsection (b) does not apply if the secretary of state |
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determines that the names are the same. |
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SECTION 5. Section 5.153, Business Organizations Code, is |
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amended to read as follows: |
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Sec. 5.153. LIMITATION ON THE REGISTRATION OF CERTAIN NAMES |
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[REGISTRATIONS PROHIBITED; EXCEPTIONS]. (a) The secretary of |
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state may [not] register a name under this subchapter only if the |
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name [that] is distinguishable in the records of the secretary of |
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state from [the same as, or that the secretary of state determines
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to be deceptively similar or similar to]: |
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(1) the name of an existing filing entity; |
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(2) the name of a foreign filing entity that is |
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registered under Chapter 9; |
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(3) the fictitious name under which a foreign filing |
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entity is registered to transact business in this state; |
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(4) a name that is reserved under Subchapter C; or |
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(5) [(4)] a name that is registered under this |
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subchapter. |
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(b) Subsection (a) does not apply if: |
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(1) the other entity or the person for whom the name is |
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reserved or registered, as appropriate, provides to the secretary |
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of state a notarized written statement of the entity's or person's |
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consent to the registration of the [similar] name; or |
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(2) the applicant is a bank, trust company, savings |
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association, or insurance company that has been in continuous |
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existence from a date that precedes the date the indistinguishable |
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[conflicting] name is filed with the secretary of state. |
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(c) Subsection (b) does not apply if the secretary of state |
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determines that the names are the same. |
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SECTION 6. Section 9.105, Business Organizations Code, is |
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amended to read as follows: |
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Sec. 9.105. USE OF DISTINGUISHABLE NAME REQUIRED [SIMILAR
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TO PREVIOUSLY REGISTERED NAME]. If the secretary of state |
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determines that the [a foreign filing entity's] name of a foreign |
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filing entity or the fictitious name under which it is registered to |
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transact business in this state does not comply with Chapter 5 [is
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the same as, deceptively similar to, or similar to a name of a
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filing entity or foreign filing entity as provided by or reserved or
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registered under this code], the secretary of state may not accept |
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for filing the certificate of reinstatement unless the foreign |
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filing entity contemporaneously amends its registration to change |
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its name to a name that complies with Chapter 5, or provides a |
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fictitious name under which the foreign filing entity will transact |
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business in this state that complies with Chapter 5 [obtains
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consent for the use of the similar name]. |
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SECTION 7. Section 11.203, Business Organizations Code, is |
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amended to read as follows: |
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Sec. 11.203. USE OF DISTINGUISHABLE NAME REQUIRED [SIMILAR
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TO PREVIOUSLY REGISTERED NAME]. If the secretary of state |
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determines that a filing entity's name contained in a certificate |
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of reinstatement filed under Section 11.202 does not comply with |
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Chapter 5 [is the same as, deceptively similar to, or similar to a
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name of a filing entity or foreign entity on file as provided by or
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reserved or registered under this code], the secretary of state may |
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not accept for filing the certificate of reinstatement unless the |
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filing entity contemporaneously amends its certificate of |
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formation to change its name to a name that complies with Chapter 5 |
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[or obtains consent for the use of the similar name]. |
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SECTION 8. This Act takes effect June 1, 2018. |
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* * * * * |