A certificate of formation is filed to create a nonprofit corporation
under the provisions of the Texas Business Organizations Code (BOC). Please note that this form cannot be used to form
a cooperative association or a corporation with a specialized nonprofit
purpose as authorized by a special state statute, such as a water supply
corporation, local government corporation, development corporation, or a
Form and Content: The web form promulgated by the secretary of
state is designed to meet minimum statutory filing requirements and no
warranty is made regarding the suitability of this form for any
particular purpose. This form and the information provided are not
substitutes for the advice of an attorney and it is recommended that the
services of an attorney be obtained before preparation of the
certificate of formation.
Certain provisions have been drafted with standard
pre-printed statements that fall within the minimum filing requirements. For
example, a nonprofit corporation formed by using this form would have a
choice of two different management structures: 1) management vested in the
nonprofit members and performed solely by the members of the corporation or
2) management by a board of directors. If you wish to form a nonprofit
corporation that vests management in its members, but that has a board of
directors to which certain management functions are delegated, you should not
use this form. A specially drafted certificate of formation with this
management structure would be submitted by mail, by fax or by personal
During the web filing process, you will be directed
from screen to screen to provide certain variable information with which to
populate the form. After entry of the information, a document image will be
displayed for your review. Please review the document carefully for accuracy
The statutory fee of $25 must be provided before the document can be
submitted (BOC § 4.153). Payments for web filings may be made by credit
card or client account. Selection of the payment method is performed
during the subscriber login process. Fees paid by credit card are
subject to a statutorily authorized convenience fee of 2.7% of the total
fees. To view the available balance in your client account, select the
Account tab from the navigation bar and select "Client Account
Statements" from the Accounts Maintenance Menu.
Name and Type Screen: Enter in the proposed name of the
corporation. The corporation name may, but need not, contain an
organizational term such as "Corporation,"
"Incorporated," or “Limited.”
Availability Search Option: Under section 5.053 of the BOC and
the administrative rules adopted by the secretary of state, if the name
chosen is the same as, deceptively similar to, or similar to the name of
any existing domestic or foreign filing entity, or any name reservation
or registration filed with the secretary of state, the document cannot
be filed. The administrative rules adopted for determining entity name
availability (Texas Administrative Code, title 1, part 4, chapter 79,
subchapter C) may be viewed at the secretary of state web site by
clicking on the Texas Register icon.
Do not presume that the name searched is
"available" and will be approved for filing. Even if you believe the results do not reveal the same or
deceptively similar name in use, the Office of the Secretary of State must
still perform its own search after receipt of the document. A final
determination regarding the entity name is not made until an examiner's
review and filing of the document. You are strongly urged not to make
financial expenditures or regulatory filings based upon the results of your
If you wish our office to provide a preliminary
determination on the availability of the proposed name before submission, you
may do so by telephone at (512) 463-5555, by dialing 7-1-1 for relay
services, or by e-mail to firstname.lastname@example.org.
This is only a preliminary clearance. Also note that the preclearance
of a name or the issuance of a certificate under a name does not authorize
the use of a name in violation of another person's rights to the name.
Registered Agent And Registered Office Screen:
The registered agent can be either: (1) a Texas corporation or other
entity such as a limited liability company, limited partnership, partnership,
or other legal entity organized under the laws of this state, or a foreign
corporation or other foreign entity authorized to transact business in this
state; or (2) an individual resident of the state. The corporation cannot act as its own
registered agent; do not enter the corporate name as the name of the registered
Address Requirements: The
registered office address must be located at a street address where service
of process may be personally served on the entity’s registered agent during
normal business hours. Although the registered office is not required to be
the entity’s principal place of business in Texas, the registered office may
not be solely a mailbox service or telephone answering service (BOC §
5.201). The registered office address must be an address that is generally
open during normal business hours so that the registered agent may accept
service of process.
Consent of Registered Agent Option: Effective January 1, 2010, a person designated as the registered agent of an
entity must have consented, either in a written or electronic form, to serve
as the registered agent of the entity. The designation or
appointment of a person as the registered agent by an organizer is an
affirmation by that official that the person named in the instrument has
consented to serve as registered agent. (BOC § 5.2011, effective January
A copy of
the agent’s written or electronic consent does not need to be submitted with
the certificate of formation; however, the organizer is provided with the
option of including a copy of the agent’s written or electronic consent as
part of the certificate of formation filing.
- The radio button on the
screen is preset to an option that permits the user to continue with
the filing without attaching a copy of the registered agent’s consent.
When this option is marked, the certificate of
formation will show selection of a pre-printed statement that indicates
that the entity has retained a copy of the consent of registered agent.
- Select the radio button
“Consent Attached” to include a copy of the person’s consent to serve
as the entity’s registered agent.
- If you selected the option
“Consent Attached,” the next screen will be the Consent attachment
screen. The copy of the agent’s consent would be attached as an
electronic file; the attachment must be in TIF, TXT, or PDF file format to be accepted.
- If you decide not to
include the consent of the registered agent and do not wish to provide
an attachment, click Continue to
proceed to the next screen. If you proceed to
the next screen without providing an attachment, the certificate of
formation will show selection of a pre-printed statement that indicates
that the entity has retained a copy of the consent of registered agent.
Screen: A nonprofit corporation that has members may be managed
by its members (Option A) or by a board of directors (Option B).
Management by a board of directors is set as the default management
Information: If the corporation is to be managed by a board of
directors, click on "Add Director" to initiate the entry of
director name and address information. After entering the information,
click on "Update" to return to the Director Screen to
continue. You may edit or delete the director information displayed in
the grid by clicking on the appropriate button. A minimum of three
directors is required. A director must be a natural person; there are no
residency requirements for directors. Additional or more restrictive
requirements may be applicable under other state or federal
laws/regulations governing the activity of the entity.
Structure and Purpose Screen: A nonprofit corporation may have
one or more classes of members or may be organized without members. The
qualifications and rights of the members are generally set forth in the
corporation's by-laws rather than the certificate of formation. Please
note that the form is preset to have members, which is the statutory
default organizational structure. You must select Option B if the
corporation is to have no members.
The certificate of formation must contain a statement of a lawful
purpose. A lawful purpose may be a charitable, benevolent, religious,
patriotic, civic, missionary, educational, scientific, social,
fraternal, athletic, or agricultural purpose; or the conduct of a
professional, commercial, industrial or trade association. Although the
BOC allows a general purpose (e.g., "any or all lawful purposes for
which nonprofit corporations may be formed") other laws, including
the Internal Revenue Code, may require that the certificate of formation
include more specific purposes as a basis for granting a license or
tax-exempt or tax-deductible status.
Provisions and Attachments Screen: Additional space has been
provided for additional text to an article within this form or to
provide for additional articles to contain optional provisions. You may
enter the additional text in the space provided for "Supplemental
Provisions/Information" or you may attach the additional provisions
by following the instructions for attaching an electronic file or files
as part of the document. If a letter of consent for the use of a similar
name has been required, then the letter of consent must be sent as an
attachment to the document being submitted.
If the nonprofit corporation is to be authorized
on its termination to distribute its assets in a manner other than the manner
described in section 22.304 of the BOC (which refers in part to the
distribution of assets for tax- exempt purposes to organizations exempt under
section 501(c)(3) or described by Section 170(c)(1) or (2) of the Internal
Revenue Code of 1986 and related statutes), the certificate of formation must
contain a statement describing the manner of distribution of the
corporation's assets. This information may be provided in the Supplemental
Provisions and Attachments Screen.
Attachments must be in TIF, TXT,
or PDF file format to be accepted.
filed with the Secretary of State is a public record. The document, and the
information provided in the document, will be available online through SOSDirect for public viewing. Do not include confidential information, such as social security
numbers, within the supplemental provisions section or in an electronic
Duration: Pursuant to section 3.003
of the BOC, a Texas nonprofit corporation exists perpetually unless provided
otherwise in the certificate of formation. The duration of a nonprofit
corporation created through the use of this web form is perpetual. If
formation of a corporation with a stated period of duration is desired, do
not use this form. Please complete form 202 found on the SOS web site
index of forms page and submit by mail, fax or personal delivery.
Screen: As only one organizer is required for the formation of
a corporation, the web filing is designed to accommodate only one
organizer name, address, and signature. An organizer may be a natural
person 18 years of age or older, or any corporation, partnership, or
other entity; there are no residency requirements for an organizer.
Provide the full name and street or mailing address of the organizer in
the space provided.
Screen: The organizer must sign the certificate of formation.
An organizer signs the electronic document by typing the organizer’s
name in the field provided. If the organizer is a legal entity such as a
corporation, a person authorized to execute documents on behalf of such
entity must sign the certificate of formation. In this case, type the
name and representative capacity of the person signing on behalf of the
entity. For example, Jane Esquire, President of ABC Business Organizers,
Effective Date: A certificate of formation becomes effective
when filed by the secretary of state. However, pursuant to sections
4.052 and 4.053 of the BOC the effectiveness of the instrument may be
delayed to a date not more than ninety (90) days from the date the instrument
is signed. Please note that on the filing of a document with a delayed
effective date, the computer records of the secretary of state will be
changed to show the filing of the document, the date of the filing, and
the future date on which the document will be effective. In addition, at
the time of such filing, the status of the entity will be shown as “in
existence” on the records of the secretary of state.
Display Screen: After completing the entry screens, the system
will display an image of the document for purposes of your review.
Please review the document carefully for accuracy. Please note that a
person commits an offense under section 4.008 of the BOC if the person
signs or directs the filing of a filing instrument the person knows is materially
false with the intent that the instrument be delivered to the secretary
of state for filing. The offense is a Class A misdemeanor unless the
person’s intent is to harm or defraud another, in which case the offense
is a state jail felony.
Edit Filing: If the document must be
corrected, click on the "Edit Filing"
button to return to the entry screens. Do not use
the back button to return to prior screens, as this will not update or revise
the information contained in the filing. If you wish to retain a copy
of the document you are submitting, use the printer function of your browser
to print the screen.
Cancel Filing: Click on the "Cancel Filing" button to terminate the
electronic filing process.
Submit Filing: You must click on the "Submit Filing" button to transmit the
document. You will receive a message confirming receipt of the filing that
contains the session ID and the document tracking number of the document
transmitted. You may wish to attach this receipt notice to your retained copy.
Exemption: Corporations organized under the Texas Business
Organizations Code DO NOT automatically qualify for
exemption from federal and state taxes. Before granting a tax exemption,
the Internal Revenue Service (IRS) requires that the certificate of formation
contain certain provisions. This form does not contain the provisions
required by the IRS. If the corporation plans to seek federal tax
exemption from the IRS, you may wish to obtain and review the sample
language for these provisions contained in a publication called
"Tax Exempt Status for Your Organization," IRS Publication
557. You may call the IRS at (800) 829-3676 for a copy of the
publication or download the publication at the IRS web site. Additional
questions concerning exemption from federal income taxes should be
directed to the IRS.
Taxes: Nonprofit corporations also are subject to state
franchise taxes. If the corporation qualifies to be exempt, an
application for exemption must be made to the Exempt Organizations
Section, Comptroller of Public Accounts, Austin, Texas 78774-0100, (512) 463-4600 or (800) 252-1381. TDD: (800) 248-4099 or (512) 463- 4621. The
Corporations Section home page provides links to the IRS and Texas
Comptroller web sites.