By: Villalba (Senate Sponsor - Estes) H.B. No. 2856
(In the Senate - Received from the House May 10, 2017;
May 12, 2017, read first time and referred to Committee on Business &
Commerce; May 17, 2017, reported favorably by the following vote:
Yeas 8, Nays 0; May 17, 2017, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to names of domestic and foreign filing entities for
transacting business in this state.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
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.
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.
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.
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.
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.
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].
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].
SECTION 8. This Act takes effect June 1, 2018.
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