86R6930 CLG-F
 
  By: Hancock S.B. No. 1971
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to domestic corporations and other domestic entities.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 6.252, Business Organizations Code, is
  amended by amending Subsections (a), (b), and (c) and adding
  Subsections (c-1), (c-2), (c-3), (c-4), and (g) to read as follows:
         (a)  Except as provided by this code or the governing
  documents, any number of owners of a domestic entity, or any number
  of owners of the domestic entity and the domestic entity itself, may
  enter into a written voting agreement that is not set forth in the
  entity's governing documents to provide the manner of voting of the
  ownership interests of the domestic entity. A voting agreement
  entered into under this subsection is not part of the governing
  documents of the domestic entity.
         (b)  A copy of a voting agreement entered into under
  Subsection (a):
               (1)  may [shall] be deposited with the domestic entity
  at the domestic entity's principal executive office or registered
  office; and
               (2)  if deposited as provided by Subdivision (1), is
  subject to examination by an owner, whether in person or by the
  owner's agent or attorney, in the same manner as the owner is
  entitled to examine the books and records of the domestic entity.
         (c)  A voting agreement entered into under Subsection (a) is
  specifically enforceable against the owner [holder] of an ownership
  interest that is the subject of the agreement if the owner executes
  the voting agreement or acknowledges in writing that the owner or
  the ownership interest is bound by the agreement [, and any
  successor or transferee of the holder, if:
               [(1)     the voting agreement is noted conspicuously on
  the certificate representing the ownership interests; or
               [(2)     a notation of the voting agreement is contained
  in a notice sent by or on behalf of the domestic entity in
  accordance with Section 3.205, if the ownership interest is not
  represented by a certificate].
         (c-1)  A voting agreement entered into under Subsection (a)
  is specifically enforceable against any subsequent owner of the
  ownership interest subject to the voting agreement if the
  subsequent owner:
               (1)  has notice or actual knowledge of the voting
  agreement at or before the time of transfer to the subsequent owner;
               (2)  is not a transferee for value and receives notice
  or obtains actual knowledge of the voting agreement; or
               (3)  acknowledges in writing that the subsequent owner
  or the ownership interest is bound by the voting agreement.
         (c-2)  A subsequent owner is considered to have notice of a
  voting agreement for purposes of Subsection (c-1)(1) if, at the
  time of transfer, the existence of the voting agreement is noted
  conspicuously on any certificate representing the ownership
  interest held by the transferor owner. The notice described by this
  subsection is not the exclusive method by which notice of the voting
  agreement may be received by a subsequent owner for purposes of
  Subsection (c-1)(1).
         (c-3)  A voting agreement that becomes specifically
  enforceable against a subsequent owner under Subsection (c-1)(2) is
  specifically enforceable from the time the subsequent owner first
  receives notice or obtains actual knowledge of the voting
  agreement.
         (c-4)  A voting agreement that becomes specifically
  enforceable against a subsequent owner under Subsection (c-1)(3) is
  specifically enforceable from the time of the written
  acknowledgment by the subsequent owner.
         (g)  This section does not impair the right of the domestic
  entity to treat an owner of record as entitled to vote the ownership
  interest standing in the owner's name or to accept that owner's vote
  of the ownership interest.
         SECTION 2.  Sections 10.354(b) and (c), Business
  Organizations Code, are amended to read as follows:
         (b)  Notwithstanding Subsection (a), subject to Subsection
  (c), an owner may not dissent from a plan of merger or conversion in
  which there is a single surviving or new domestic entity or non-code
  organization, or from a plan of exchange, if:
               (1)  the ownership interest, or a depository receipt in
  respect of the ownership interest, held by the owner:
                     (A)  is part of a class or series of ownership
  interests, or depository receipts in respect of ownership
  interests, that [are], on the record date set for purposes of
  determining which owners are entitled to vote on the plan of merger,
  other than a merger pursuant to Section 21.459(c), conversion, or
  exchange, as appropriate, are either:
                           (i) [(A)]  listed on a national securities
  exchange; or
                           (ii) [(B)]  held of record by at least 2,000
  owners; or
                     (B)  in the case of a merger pursuant to Section
  21.459(c), is part of a class or series of ownership interests, or
  depository receipts in respect of ownership interests, that,
  immediately before the date the board of directors of the
  corporation that issued the ownership interest held by the owner,
  directly or indirectly, approves the plan of merger, are either:
                           (i)  listed on a national securities
  exchange; or
                           (ii)  held of record by at least 2,000
  owners;
               (2)  the owner is not required by the terms of the plan
  of merger, conversion, or exchange, as appropriate, to accept for
  the owner's ownership interest any consideration that is different
  from the consideration to be provided to any other holder of an
  ownership interest of the same class or series as the ownership
  interest held by the owner, other than cash instead of fractional
  shares or interests the owner would otherwise be entitled to
  receive; and
               (3)  the owner is not required by the terms of the plan
  of merger, conversion, or exchange, as appropriate, to accept for
  the owner's ownership interest any consideration other than:
                     (A)  ownership interests, or depository receipts
  in respect of ownership interests, of a domestic entity or non-code
  organization of the same general organizational type that,
  immediately after the effective date of the merger, conversion, or
  exchange, as appropriate, will be part of a class or series of
  ownership interests, or depository receipts in respect of ownership
  interests, that are:
                           (i)  listed on a national securities
  exchange or authorized for listing on the exchange on official
  notice of issuance; or
                           (ii)  held of record by at least 2,000
  owners;
                     (B)  cash instead of fractional ownership
  interests, or fractional depository receipts in respect of
  ownership interests, the owner would otherwise be entitled to
  receive; or
                     (C)  any combination of the ownership interests,
  or fractional depository receipts in respect of ownership
  interests, and cash described by Paragraphs (A) and (B).
         (c)  Subsection (b) shall not apply [either] to a domestic
  entity that is a subsidiary with respect to a merger under Section
  10.006 [or to a corporation with respect to a merger under Section
  21.459(c)].
         SECTION 3.  Sections 10.355(d) and (f), Business
  Organizations Code, are amended to read as follows:
         (d)  In addition to the requirements prescribed by
  Subsection (c), a notice required to be provided:
               (1)  under Subsection (a)(1) must accompany the notice
  of the meeting to consider the action;
               (2)  under Subsection (a)(2) must be provided to:
                     (A)  each owner who consents in writing to the
  action before the owner delivers the written consent; and
                     (B)  each owner who is entitled to vote on the
  action and does not consent in writing to the action before the 11th
  day after the date the action takes effect; and
               (3)  under Subsection (b-1) must be provided:
                     (A)  if given before the consummation of the
  [tender or exchange] offer described by Section 21.459(c)(2), to
  each shareholder to whom that offer is made; or
                     (B)  if given after the consummation of the
  [tender or exchange] offer described by Section 21.459(c)(2), to
  each shareholder who did not tender the shareholder's shares in
  that offer.
         (f)  If the notice given under Subsection (b-1) did not
  include a statement of the effective date of the merger, the
  responsible organization shall, not later than the 10th day after
  the effective date, give a second notice to the shareholders
  notifying them of the merger's effective date. If the second notice
  is given after the later of the date on which the [tender or
  exchange] offer described by Section 21.459(c)(2) is consummated or
  the 20th day after the date notice under Subsection (b-1) is given,
  then the second notice is required to be given to only those
  shareholders who have made a demand under Section 10.356(b)(3).
         SECTION 4.  Section 10.356(b), Business Organizations Code,
  is amended to read as follows:
         (b)  To perfect the owner's rights of dissent and appraisal
  under Section 10.354, an owner:
               (1)  if the proposed action is to be submitted to a vote
  of the owners at a meeting, must give to the domestic entity a
  written notice of objection to the action that:
                     (A)  is addressed to the entity's president and
  secretary;
                     (B)  states that the owner's right to dissent will
  be exercised if the action takes effect;
                     (C)  provides an address to which notice of
  effectiveness of the action should be delivered or mailed; and
                     (D)  is delivered to the entity's principal
  executive offices before the meeting;
               (2)  with respect to the ownership interest for which
  the rights of dissent and appraisal are sought:
                     (A)  must vote against the action if the owner is
  entitled to vote on the action and the action is approved at a
  meeting of the owners; and
                     (B)  may not consent to the action if the action is
  approved by written consent; and
               (3)  must give to the responsible organization a demand
  in writing that:
                     (A)  is addressed to the president and secretary
  of the responsible organization;
                     (B)  demands payment of the fair value of the
  ownership interests for which the rights of dissent and appraisal
  are sought;
                     (C)  provides to the responsible organization an
  address to which a notice relating to the dissent and appraisal
  procedures under this subchapter may be sent;
                     (D)  states the number and class of the ownership
  interests of the domestic entity owned by the owner and the fair
  value of the ownership interests as estimated by the owner; and
                     (E)  is delivered to the responsible organization
  at its principal executive offices at the following time:
                           (i)  not later than the 20th day after the
  date the responsible organization sends to the owner the notice
  required by Section 10.355(e) that the action has taken effect, if
  the action was approved by a vote of the owners at a meeting;
                           (ii)  not later than the 20th day after the
  date the responsible organization sends to the owner the notice
  required by Section 10.355(d)(2) that the action has taken effect,
  if the action was approved by the written consent of the owners;
                           (iii)  not later than the 20th day after the
  date the responsible organization sends to the owner a notice that
  the merger was effected, if the action is a merger effected under
  Section 10.006; or
                           (iv)  not later than the 20th day after the
  date the responsible organization gives to the shareholder the
  notice required by Section 10.355(b-1) or the date of the
  consummation of the [tender or exchange] offer described by Section
  21.459(c)(2), whichever is later, if the action is a merger
  effected under Section 21.459(c).
         SECTION 5.  Section 21.002, Business Organizations Code, is
  amended by adding Subdivision (10-a) to read as follows:
               (10-a)  "Share transfer records" means one or more
  records maintained by or on behalf of a corporation in accordance
  with Section 3.151 in which the names of all of the corporation's
  shareholders of record, the address of and number of shares
  registered in the name of each shareholder of record, and all
  issuances and transfers of shares of the corporation are recorded.
         SECTION 6.  Section 21.305(b), Business Organizations Code,
  is amended to read as follows:
         (b)  The notice of redemption shall be sent to each holder of
  redeemable shares being called not later than the 21st day or
  earlier than the 60th day before the date set for redemption, unless
  otherwise provided by the terms of the class or series of shares
  contained in the certificate of formation.
         SECTION 7.  Sections 21.372(a) and (a-1), Business
  Organizations Code, are amended to read as follows:
         (a)  Not later than the 11th day before the date of each
  meeting of the shareholders of a corporation, [an officer or agent
  of the corporation who is in charge of the corporation's share
  transfer records shall prepare] an alphabetical list of the
  shareholders entitled to vote at the meeting or at any adjournment
  of the meeting shall be prepared by or on behalf of the corporation.
  The list of shareholders must:
               (1)  state:
                     (A)  the address of each shareholder;
                     (B)  the type of shares held by each shareholder;
                     (C)  the number of shares held by each
  shareholder; and
                     (D)  the number of votes that each shareholder is
  entitled to if the number of votes is different from the number of
  shares stated under Paragraph (C); and
               (2)  be kept on file at the registered office or
  principal executive office of the corporation for at least 10 days
  before the date of the meeting.
         (a-1)  Instead of being kept on file, the list required by
  Subsection (a) may be kept on a reasonably accessible electronic
  data system [network] if the information required to gain access to
  the list is provided with notice of the meeting. Section 21.353(c),
  Section 21.354(a-1), and this subsection may not be construed to
  require a corporation to include any electronic contact information
  of a shareholder on the list. A corporation that elects to make the
  list available on an electronic data system [network] must take
  reasonable measures to ensure the information is available only to
  shareholders of the corporation.
         SECTION 8.  Section 21.459, Business Organizations Code, is
  amended by amending Subsections (c), (d), and (e) and adding
  Subsection (f) to read as follows:
         (c)  This subsection applies only to a corporation that is a
  party to the merger and has a class or series of [whose] shares that
  are, immediately before the date its board of directors approves
  the plan of merger, either listed on a national securities exchange
  or held of record by at least 2,000 shareholders. Unless required
  by the corporation's certificate of formation, a plan of merger is
  not required to be approved by the shareholders of the corporation
  if:
               (1)  the plan of merger expressly:
                     (A)  permits or requires the merger to be effected
  under this subsection; and
                     (B)  provides that any merger effected under this
  subsection shall be effected as soon as practicable following the
  consummation of the offer [described by Subdivision (2)];
               (2)  an organization consummates an [a tender or
  exchange] offer for all of the outstanding shares of the
  corporation on the terms provided in the plan of merger that, absent
  this subsection, would be entitled to vote on the approval of the
  plan of merger, except that:
                     (A)  the offer may be conditioned on the tender of
  a minimum number or percentage of shares of the corporation or of
  any class or series of shares of the corporation;
                     (B)  the offer may exclude any excluded shares;
  and
                     (C)  the organization may consummate separate
  offers for separate classes or series of shares of the corporation
  [owned at the time of the commencement of the offer by:
                     [(A)  the corporation;
                     [(B)  the organization making the offer;
                     [(C)     any person who owns, directly or indirectly,
  all of the ownership interests in the organization making the
  offer; or
                     [(D)     any direct or indirect wholly owned
  subsidiary of a person described by Paragraph (A), (B), or (C)];
               (3)  immediately following the consummation of the
  offer, shares that are irrevocably accepted for purchase or
  exchange pursuant to the consummation of the offer [described by
  Subdivision (2)] and that are received by the depository before the
  expiration of the offer, together with [in addition to] the shares
  that are otherwise owned by the consummating organization or its
  qualified affiliates and any rollover shares, equal at least the
  percentage of the shares of the corporation, and of each class or
  series of those shares[, of the corporation] that, absent this
  subsection, would be required to approve the plan of merger by:
                     (A)  Section 21.457 and, if applicable, Section
  21.458; and
                     (B)  the certificate of formation of the
  corporation;
               (4)  the organization consummating the offer or one of
  its qualified affiliates [described by Subdivision (2)] merges with
  or into the corporation pursuant to the plan of merger; and
               (5)  each outstanding share, other than excluded
  shares, of each class or series of the corporation that is the
  subject of and is not irrevocably accepted for purchase or exchange
  in the offer [described by Subdivision (2)] is to be converted or
  exchanged in the merger into, or into the right to receive, the same
  amount and kind of consideration, as described by Section
  10.002(a)(5), as to be paid or delivered for shares of such class or
  series of the corporation irrevocably accepted for purchase or
  exchange in the offer.
         (d)  In Subsection (c) and this subsection and, as
  applicable, in Sections 10.355(d)(3)(B), 10.355(f), and
  10.356(b)(3)(E)(iv):
               (1)  "Consummates," "consummation," or "consummating"
  means irrevocably accepts for purchase or exchange shares tendered
  pursuant to an [a tender or exchange] offer.
               (2)  "Depository" means an agent appointed to
  facilitate consummation of an [the] offer [described by Subsection
  (c)(2)].
               (3)  "Offer" means a tender offer or an exchange offer
  that satisfies the requirements of Subsection (c)(2).
         (e)  For purposes of Subsection (c) and this subsection:
               (1)  "Excluded shares" means:
                     (A)  shares of the corporation that are owned at
  the commencement of the offer by:
                           (i)  the corporation;
                           (ii)  the organization consummating the
  offer;
                           (iii)  any person that owns, directly or
  indirectly, all of the outstanding ownership interests of the
  organization consummating the offer; or
                           (iv)  any direct or indirect wholly owned
  subsidiary of any corporation, organization, or other person
  described by Subparagraphs (i)-(iii); and
                     (B)  rollover shares.
               (2)  "Qualified affiliate" means, with respect to the
  organization consummating an offer, any person that:
                     (A)  owns, directly or indirectly, all of the
  outstanding ownership interests of the organization consummating
  the offer; or
                     (B)  is a direct or indirect wholly owned
  subsidiary of the organization consummating the offer or of any
  person described by Paragraph (A).
               (3)  "Received" means:
                     (A)  [(c)(3), "received,"] with respect to
  certificated shares, [means:
               [(1)]  physical receipt of a certificate representing
  shares accompanied by an executed letter of transmittal [, in the
  case of certificated shares]; [and]
                     (B) [(2)]  transfer into the depository's account
  by means of [or] an agent's message; and
                     (C)  with respect to uncertificated shares held of
  record by a person other than a clearing corporation as nominee,
  physical receipt of an executed letter of transmittal by the
  depository [being received by the depository, in the case of
  uncertificated shares].
               (4)  "Rollover shares" means any shares of the
  corporation that are the subject of a written agreement, separate
  from the offer, requiring the shares to be transferred,
  contributed, or delivered to the organization consummating the
  offer or any of the organization's qualified affiliates in exchange
  for ownership interests in the organization consummating the offer
  or a qualified affiliate of that organization. The term does not
  include shares of a corporation described by this subdivision that,
  immediately before the time a merger described by Subsection (c)
  becomes effective, have not been transferred, contributed, or
  delivered to the organization consummating the offer or any of the
  organization's qualified affiliates pursuant to the written
  agreement.
         (f)  For purposes of Subsections (c) and (e), shares cease to
  be "received":
                     (A)  with respect to certificated shares, if the
  certificate representing the shares was canceled before
  consummation of the offer; and
                     (B)  with respect to uncertificated shares, to the
  extent the uncertificated shares have been reduced or eliminated
  due to any sale of those shares before the consummation of the
  offer.
         SECTION 9.  Section 21.701, Business Organizations Code, is
  amended to read as follows:
         Sec. 21.701.  DEFINITIONS. In this subchapter and
  Subchapter P:
               (1)  "Close corporation" means a domestic corporation
  formed under this subchapter or governed by this subchapter because
  of Section 21.705, 21.706, or 21.707.
               (2)  "Close corporation provision" means a provision in
  the certificate of formation of a close corporation or in a
  shareholders' agreement of a close corporation.
               (3)  "Ordinary corporation" means a domestic
  corporation that is not a close corporation.
               (4)  "Shareholders' agreement" means a written
  agreement regulating an aspect of the business and affairs of or the
  relationship among the shareholders of a close corporation that has
  been executed under this subchapter.
         SECTION 10.  Section 21.901, Business Organizations Code, is
  amended by amending Subdivisions (2) and (4) and adding Subdivision
  (5-a) to read as follows:
               (2)  "Defective corporate act" means:
                     (A)  an overissue;
                     (B)  an election or appointment of directors that
  is void or voidable due to a failure of authorization; or
                     (C)  any act or transaction purportedly taken by
  or on behalf of the corporation that is, and at the time the act or
  transaction was purportedly taken would have been, within the power
  of a corporation to take under the corporate statute, without
  regard to the failure of authorization identified in Section
  21.903(a)(4), but is void or voidable due to a failure of
  authorization.
               (4)  "Failure of authorization" means:
                     (A)  the failure to authorize or effect an act or
  transaction in compliance with the provisions of the corporate
  statute, the governing documents of the corporation, [or] any plan
  or agreement to which the corporation is a party, or the disclosure
  set forth in any proxy or consent solicitation statement, if and to
  the extent the failure would render the act or transaction void or
  voidable; or
                     (B)  the failure of the board of directors or an
  officer of the corporation to authorize or approve an act or
  transaction taken by or on behalf of the corporation that required
  the prior authorization or approval of the board of directors or the
  officer.
               (5-a)  "Putative record date" means, with respect to
  any defective corporate act that involved the establishment of a
  record date for a meeting of or action by shareholders or any other
  purpose, that record date.
         SECTION 11.  Section 21.905, Business Organizations Code, is
  amended to read as follows:
         Sec. 21.905.  SHAREHOLDER APPROVAL OF RATIFIED DEFECTIVE
  CORPORATE ACT REQUIRED; EXCEPTION. Each defective corporate act
  ratified under Section 21.903 must be submitted to shareholders for
  approval as provided by Sections 21.906 and 21.907, unless:
               (1)(A)  no other provision of the corporate statute, no
  provision of the corporation's governing documents, and no
  provision of any plan or agreement to which the corporation is a
  party would have required shareholder approval of:
                           (i) [(A)]  the defective corporate act to be
  ratified at the time of that defective corporate act; or
                           (ii) [(B)]  the type of defective corporate
  act to be ratified at the time the board of directors adopts the
  resolutions ratifying that defective corporate act under Section
  21.903; and
                     (B) [(2)]  the defective corporate act to be
  ratified did not result from a failure to comply with Subchapter M;
  or
               (2)  as of the record date for determining the
  shareholders entitled to vote on the ratification of the defective
  corporate act, there are no valid shares outstanding and entitled
  to vote on the ratification, regardless of whether as of that record
  date there exist any putative shares.
         SECTION 12.  Section 21.906(a), Business Organizations
  Code, is amended to read as follows:
         (a)  If the ratification of a defective corporate act is
  required to be submitted to the shareholders for approval under
  Section 21.905, notice of the time, place, if any, and purpose of
  the meeting shall be given at least 20 days before the date of the
  meeting to:
               (1)  each holder of record, as of the record date of the
  meeting, of valid shares and putative shares, regardless of whether
  the shares are voting or nonvoting, at the address of the holder as
  it appears or most recently appeared, as appropriate, on the
  corporation's records; and
               (2)  each holder of record of valid shares and putative
  shares, regardless of whether the shares are voting or nonvoting,
  other than to a holder whose identity or address cannot be
  ascertained from the corporation's records:
                     (A)  as of the time of the defective corporate
  act; or
                     (B)  in the case of any defective corporate act
  that involved the establishment of a putative record date, as of
  that putative record date [, except that notice is not required to
  be given to a holder whose identity or address cannot be ascertained
  from the corporation's records].
         SECTION 13.  Section 21.911(e), Business Organizations
  Code, is amended to read as follows:
         (e)  Notwithstanding Subsections (a)-(d):
               (1)  notice is not required to be given under this
  section to a person if notice of the ratification of the defective
  corporate act is given to that person in accordance with Section
  21.906; and
               (2)  for a corporation that has a class of stock listed
  on a national securities exchange, the notice required by this
  section and Section 21.906(a)(2) may be considered given if the
  information contained in the notice is disclosed in a document
  publicly filed by the corporation with the Securities and Exchange
  Commission under Section 13, 14, or 15(d), Securities Exchange Act
  of 1934 (15 U.S.C. Section 78m, 78n, or 78o(d)), and any rules
  promulgated under that Act.
         SECTION 14.  Section 21.953(c), Business Organizations
  Code, is amended to read as follows:
         (c)  The name of the public benefit corporation specified in
  its certificate of formation may contain the words "public benefit
  corporation," the abbreviation "P.B.C.," or the designation "PBC."
  If the name does not contain those words or that abbreviation or
  designation, [the corporation must,] before the issuance of
  [issuing] unissued shares or the disposition [disposing] of
  treasury shares and except as provided by Subsection (d), [provide]
  notice that the corporation is a public benefit corporation shall
  be given to any person:
               (1)  to whom the unissued shares are issued; or
               (2)  who acquires the treasury shares.
         SECTION 15.  Section 21.955(b), Business Organizations
  Code, is amended to read as follows:
         (b)  A notice sent to any person [by a public benefit
  corporation] under Section 3.205 must state conspicuously that the
  corporation is a public benefit corporation governed by this
  subchapter.
         SECTION 16.  Section 22.001, Business Organizations Code, is
  amended by adding Subdivision (3-a) to read as follows:
               (3-a)  "Director" means a person who is a member of the
  board of directors, regardless of the name or title used to
  designate the person. The term does not include a person designated
  as a director of the corporation, or as an ex officio, honorary, or
  other type of director of the corporation if the person is not
  entitled to vote as a director.
         SECTION 17.  Section 22.002, Business Organizations Code, is
  amended to read as follows:
         Sec. 22.002.  MEETINGS BY REMOTE COMMUNICATIONS TECHNOLOGY.
  A [Subject to the provisions of this code and the certificate of
  formation and bylaws of a corporation, a] meeting of the members of
  a corporation, the board of directors of a corporation, or any
  committee designated by the board of directors of a corporation may
  be held by means of a conference telephone or similar
  communications equipment, another suitable [remote] electronic
  communications system, including videoconferencing technology or
  the Internet, or any combination of those means, in accordance with
  Section 6.002 [only if:
               [(1)     each person entitled to participate in the
  meeting consents to the meeting being held by means of that system;
  and
               [(2)     the system provides access to the meeting in a
  manner or using a method by which each person participating in the
  meeting can communicate concurrently with each other participant].
         SECTION 18.  Section 22.210, Business Organizations Code, is
  amended to read as follows:
         Sec. 22.210.  NON-DIRECTOR RIGHTS AND LIMITATIONS [EX
  OFFICIO MEMBER OF BOARD]. [(a)] The certificate of formation or
  bylaws of a corporation may provide that a person who is not a
  director [may be an ex officio member of the board of directors of
  the corporation.
         [(b)     A person designated as an ex officio member of the
  board] is entitled to receive notice of and to attend [board]
  meetings of the board of directors. By having those rights, the
  person does not have the authority, duties, or liabilities of a
  director and is not a governing person of the corporation.
         [(c)     An ex officio member is not entitled to vote unless the
  certificate of formation or bylaws authorize the member to vote. An
  ex officio member of the board who is not entitled to vote does not
  have the duties or liabilities of a director provided by this
  chapter.]
         SECTION 19.  Section 22.356(b), Business Organizations
  Code, is amended to read as follows:
         (b)  The books and records of a corporation other than a bona
  fide alumni association are subject to audit at the discretion of
  the state auditor if:
               (1)  the corporation's certificate of formation
  [charter] specifically dedicates the corporation's activities to
  the benefit of a particular state agency; and
               (2)  a board member, officer, or employee of that state
  agency is a director [sits on the board of directors] of the
  corporation [in other than an ex officio capacity].
         SECTION 20.  Sections 6.252(d) and (e), Business
  Organizations Code, are repealed.
         SECTION 21.  This Act takes effect September 1, 2019.