Texas 2017 - 85th Regular

Texas Senate Bill SB1835 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R7720 TSR-F
2	2	By: Estes S.B. No. 1835
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to names of domestic and foreign filing entities for
8	8	transacting business in this state; creating an offense.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 1.002, Business Organizations Code, is
11	11	amended by adding Subdivision (21-a) to read as follows:
12	12	(21-a) "Fictitious name" means an assumed name:
13	13	(A) that a foreign filing entity adopts for use
14	14	because the name of the entity as stated in the entity's certificate
15	15	of formation or similar organizational instrument is not available
16	16	for use under the laws of this state; and
17	17	(B) under which the foreign filing entity is
18	18	registered to transact business in this state, in accordance with
19	19	Chapter 9.
20	20	SECTION 2. Subchapter A, Chapter 5, Business Organizations
21	21	Code, is amended by adding Sections 5.002, 5.003, and 5.004 to read
22	22	as follows:
23	23	Sec. 5.002. EVIDENCE OF ESTABLISHED RIGHT TO
24	24	INDISTINGUISHABLE NAME. Notwithstanding Sections 5.053, 5.102,
25	25	and 5.153, the secretary of state may register or reserve a name
26	26	requested on an application for registration filed by a foreign
27	27	filing entity, or an application for reservation or registration of
28	28	a name filed by a person, that is not a distinguishable name from
29	29	another name that is registered or reserved in the records of the
30	30	secretary of state under this chapter if the foreign filing entity
31	31	or person delivers to the secretary of state a certified copy of the
32	32	final judgment of a court of competent jurisdiction that
33	33	establishes the entity's or person's right to the name in this
34	34	state.
35	35	Sec. 5.003. LIABILITY FOR CERTAIN FALSE WRITTEN STATEMENTS.
36	36	(a) This section applies only to a written statement of consent to
37	37	use of a name that is provided to the secretary of state under
38	38	Section 5.053(b), 5.102(b), or 5.153(b).
39	39	(b) A person may recover damages, court costs, and
40	40	reasonable attorney's fees if the person incurs a loss and:
41	41	(1) the loss is caused by a:
42	42	(A) forged written statement; or
43	43	(B) delivered written statement that constitutes
44	44	an offense under Section 5.004; or
45	45	(2) the person reasonably relies on:
46	46	(A) a false statement of material fact in a
47	47	written statement; or
48	48	(B) the omission in a written statement of a
49	49	material fact required by this code to be included in the statement.
50	50	(c) A person may recover under Subsection (b) from:
51	51	(1) each person who forged the forged written
52	52	statement or signed the written statement and knew when the
53	53	statement was signed of the false statement or omission;
54	54	(2) any managerial official of the entity who directed
55	55	the signing and delivery of the written statement who knew or should
56	56	have known when the statement was signed or filed of the false
57	57	statement or omission; or
58	58	(3) the entity that authorizes the delivery of the
59	59	written statement.
60	60	Sec. 5.004. DELIVERY OF FALSE STATEMENT; OFFENSE. (a) A
61	61	person commits an offense if the person signs or directs the
62	62	delivery of a written statement of consent described by Section
63	63	5.053(b), 5.102(b), or 5.153(b) that the person knows is materially
64	64	false with intent that the written statement of consent be
65	65	delivered on behalf of an entity to the secretary of state.
66	66	(b) An offense under this section is a Class A misdemeanor
67	67	unless the actor's intent is to defraud or harm another, in which
68	68	event the offense is a state jail felony.
69	69	SECTION 3. Section 5.053, Business Organizations Code, is
70	70	amended to read as follows:
71	71	Sec. 5.053. DISTINGUISHABLE [IDENTICAL AND DECEPTIVELY
72	72	SIMILAR] NAMES REQUIRED [PROHIBITED]. (a) The name of a [A] filing
73	73	entity or the name under which [may not have a name, and] a foreign
74	74	filing entity registers [may not register] to transact business in
75	75	this state must be distinguishable in the records of the secretary
76	76	of state from [under a name, that is the same as, or that the
77	77	secretary of state determines to be deceptively similar or similar
78	78	to]:
79	79	(1) the name of another existing filing entity;
80	80	(2) the name of a foreign filing entity that is
81	81	registered under Chapter 9;
82	82	(3) the fictitious name under which a foreign filing
83	83	entity is registered to transact business in this state;
84	84	(4) a name that is reserved under Subchapter C; or
85	85	(5) [(4)] a name that is registered under Subchapter
86	86	D.
87	87	(b) Subsection (a) does not apply if the other entity or the
88	88	person for whom the name is reserved or registered, as appropriate,
89	89	provides to the secretary of state a notarized written statement of
90	90	the entity's or person's consent to the use of the [similar] name.
91	91	(c) If the secretary of state determines that an entity or
92	92	person described by Subsection (b) is consenting to the use of a
93	93	name that is the same as the name or fictitious name of the entity or
94	94	is the same as the name reserved or registered for the entity or
95	95	person, the entity's or person's consent is not valid.
96	96	SECTION 4. Section 5.102, Business Organizations Code, is
97	97	amended to read as follows:
98	98	Sec. 5.102. LIMITATION ON THE RESERVATION OF CERTAIN NAMES
99	99	[PROHIBITED; EXCEPTIONS]. (a) The secretary of state may [not]
100	100	reserve a name under this subchapter only if the name [that] is
101	101	distinguishable in the records of the secretary of state from [the
102	102	same as, or that the secretary of state considers deceptively
103	103	similar or similar to]:
104	104	(1) the name of an existing filing entity;
105	105	(2) the name of a foreign filing entity that is
106	106	registered under Chapter 9;
107	107	(3) the fictitious name under which a foreign filing
108	108	entity is registered to transact business in this state;
109	109	(4) a name that is reserved under this subchapter; or
110	110	(5) [(4)] a name that is registered under Subchapter
111	111	D.
112	112	(b) Subsection (a) does not apply if the other entity or the
113	113	person for whom the name is reserved or registered, as appropriate,
114	114	provides to the secretary of state a notarized written statement of
115	115	the entity's or person's consent to the subsequent reservation of
116	116	the [similar] name.
117	117	(c) If the secretary of state determines that an entity or
118	118	person described by Subsection (b) is consenting to the subsequent
119	119	reservation of a name that is the same as the name or fictitious
120	120	name of the entity or is the same as the name reserved or registered
121	121	for the entity or person, the entity's or person's consent is not
122	122	valid.
123	123	SECTION 5. Section 5.153, Business Organizations Code, is
124	124	amended to read as follows:
125	125	Sec. 5.153. LIMITATION ON THE REGISTRATION OF CERTAIN NAMES
126	126	[REGISTRATIONS PROHIBITED; EXCEPTIONS]. (a) The secretary of
127	127	state may [not] register a name under this subchapter only if the
128	128	name [that] is distinguishable in the records of the secretary of
129	129	state from [the same as, or that the secretary of state determines
130	130	to be deceptively similar or similar to]:
131	131	(1) the name of an existing filing entity;
132	132	(2) the name of a foreign filing entity that is
133	133	registered under Chapter 9;
134	134	(3) the fictitious name under which a foreign filing
135	135	entity is registered to transact business in this state;
136	136	(4) a name that is reserved under Subchapter C; or
137	137	(5) [(4)] a name that is registered under this
138	138	subchapter.
139	139	(b) Subsection (a) does not apply if:
140	140	(1) the other entity or the person for whom the name is
141	141	reserved or registered, as appropriate, provides to the secretary
142	142	of state a notarized written statement of the entity's or person's
143	143	consent to the registration of the [similar] name; or
144	144	(2) the applicant is a bank, trust company, savings
145	145	association, or insurance company that has been in continuous
146	146	existence from a date that precedes the date the indistinguishable
147	147	[conflicting] name is filed with the secretary of state.
148	148	(c) If the secretary of state determines that an entity or
149	149	person described by Subsection (b)(1) is consenting to the
150	150	registration of a name that is the same as the name or fictitious
151	151	name of the entity or is the same as the name reserved or registered
152	152	for the entity or person, the entity's or person's consent is not
153	153	valid.
154	154	SECTION 6. Section 9.105, Business Organizations Code, is
155	155	amended to read as follows:
156	156	Sec. 9.105. USE OF DISTINGUISHABLE NAME REQUIRED [SIMILAR
157	157	TO PREVIOUSLY REGISTERED NAME]. If the secretary of state
158	158	determines that the [a foreign filing entity's] name of a foreign
159	159	filing entity or the fictitious name under which it is registered to
160	160	transact business in this state does not comply with Chapter 5 [is
161	161	the same as, deceptively similar to, or similar to a name of a
162	162	filing entity or foreign filing entity as provided by or reserved or
163	163	registered under this code], the secretary of state may not accept
164	164	for filing the certificate of reinstatement unless the foreign
165	165	filing entity contemporaneously amends its registration to change
166	166	its name to a name that complies with Chapter 5, or provides a
167	167	fictitious name under which the foreign filing entity will transact
168	168	business in this state that complies with Chapter 5 [obtains
169	169	consent for the use of the similar name].
170	170	SECTION 7. Section 11.203, Business Organizations Code, is
171	171	amended to read as follows:
172	172	Sec. 11.203. USE OF DISTINGUISHABLE NAME REQUIRED [SIMILAR
173	173	TO PREVIOUSLY REGISTERED NAME]. If the secretary of state
174	174	determines that a filing entity's name contained in a certificate
175	175	of reinstatement filed under Section 11.202 does not comply with
176	176	Chapter 5 [is the same as, deceptively similar to, or similar to a
177	177	name of a filing entity or foreign entity on file as provided by or
178	178	reserved or registered under this code], the secretary of state may
179	179	not accept for filing the certificate of reinstatement unless the
180	180	filing entity contemporaneously amends its certificate of
181	181	formation to change its name to a name that complies with Chapter 5
182	182	[or obtains consent for the use of the similar name].
183	183	SECTION 8. Section 5.002, Business Organizations Code, as
184	184	added by this Act, applies only to an application filed on or after
185	185	the effective date of this Act. An application filed before the
186	186	effective date of this Act is governed by the law in effect on the
187	187	date the application was filed, and the former law is continued in
188	188	effect for that purpose.
189	189	SECTION 9. Sections 5.102 and 5.153, Business Organizations
190	190	Code, as amended by this Act, apply only to an application for
191	191	registration or reservation of a name filed on or after the
192	192	effective date of this Act. An application for registration or
193	193	reservation of a name filed before the effective date of this Act is
194	194	governed by the law in effect on the date the application was filed,
195	195	and the former law is continued in effect for that purpose.
196	196	SECTION 10. Sections 9.105 and 11.203, Business
197	197	Organizations Code, as amended by this Act, apply only to a
198	198	certificate of reinstatement filed on or after the effective date
199	199	of this Act. A certificate of reinstatement filed before the
200	200	effective date of this Act is governed by the law in effect on the
201	201	date the certificate of reinstatement was filed, and the former law
202	202	is continued in effect for that purpose.
203	203	SECTION 11. This Act takes effect June 1, 2018.