INSTRUCTIONS FOR FILING A CERTIFICATE OF FORMATION FOR A NONPROFIT CORPORATION

(Form 202)

  • Commentary: 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 cemetery corporation.
  • Web 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 delivery.

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 before submission.

  • Fee: 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.
  • Entity 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.”
  • Name 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 search.

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 corpinfo@sos.state.tx.us. 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 agent.

Registered Office 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 1, 2010)

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.
  • Management 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 type.
  • Director 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.
  • Organizational 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.
  • Purpose: 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.
  • Supplemental 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.

Reminder

A document 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 attachment.

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.

  • Organizer 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.
  • Execution 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, Inc.
  • Delayed 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.
  • Document 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.

  • Tax 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.
  • Franchise 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.