Reinstatement of a Business Corporation

A.New—BOC Permits a Reinstatement After a Voluntary Termination
One of the substantive changes made by the enactment of the BOC.
1.
Under the Texas Non-Profit Corporation Act, a nonprofit corporation could not revoke a voluntary dissolution and reactivate the corporation once the articles of dissolution had been filed with the Secretary of State. However, sections 11.201 and 11.202 of the BOC permit a voluntarily terminated (i.e., dissolved) domestic entity to reinstate its existence no later than the third anniversary of the effective date of the filing of a certificate of termination if:
a.
the termination was by mistake or was inadvertent;
b.
the termination occurred without the approval of the entity’s governing persons (i.e., directors, managers, general partners) when approval is required by the BOC title governing the entity;
c.
the process of winding up before termination had not been completed by the entity; or
d.
the legal existence of the entity is necessary to convey or assign property, to settle or release a claim or liability, to take an action, or to sign an instrument or agreement.
2.
The owners, members, governing persons or other persons specified by the BOC must approve the reinstatement of the entity in the manner provided by the BOC title governing the domestic entity. In the case of a nonprofit corporation, these procedures are set forth in sections 22.301-22.303 of the BOC.
3.
Before filing the reinstatement, the Secretary of State must determine whether the name of the terminated entity being reinstated is the same as, or deceptively similar to that of an existing domestic or foreign entity or a name registration or reservation on file with the Secretary of State. If the entity name does not conform to statutory or administrative requirements for entity names, the reinstatement will be returned and the entity will be required to change its name.12
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4.
SOS form 811 would be used when applying to reinstate the existence of the entity. The certificate of reinstatement must include the name of the entity’s registered agent and its registered office address. The person designated as the entity’s registered agent also must have consented, in a written or electronic form, to act as the entity’s registered agent. The consent of the agent does not need to accompany the filing.
5.
An entity that has been involuntarily terminated by the Secretary of State, or that has had its existence forfeited under the Tax Code, or that has been terminated by court order may not be reinstated under section 11.201 of the BOC.