INSTRUCTIONS FOR FILING A

CERTIFICATE OF FORMATION FOR A PROFESSIONAL CORPORATION

(Form 203)

 

  • Commentary: A certificate of formation is filed to create a professional corporation under the provisions of the Texas Business Organizations Code (BOC). A "professional corporation" is defined as a corporation that is governed as a professional entity and that is formed for the purpose of providing a professional service that by law a corporation governed by the Texas Corporation Law is prohibited from rendering (BOC § 301.003(3)).

    Generally, a professional corporation is formed for the sole and specific purpose of rendering a single professional service. "Professional service" is defined as any type of personal service that requires, prior to rendering such service, the obtaining of a license (BOC § 301.003(8)). As a general rule, if the law regulating the professional service only licenses individuals to perform the professional service, such as the practice of law, a licensed professional seeking to form a corporation through which to render the professional service would form a professional corporation and not a for-profit corporation. 
  • Permitted Professionals: Professionals that may form professional corporations include: acupuncturists; athletic trainers; attorneys; insurance agents; nurses; and physical, occupational, respiratory care, and massage therapists.
  • Excluded Professionals: Due to a specific prohibition, a professional corporation cannot be formed for the practice of medicine (BOC § 301.003(3)).  Therefore, physicians, surgeons, and other doctors of medicine (e.g., osteopaths) should form a professional association or professional limited liability company rather than a professional corporation. 

    Do not utilize this form if you are seeking to render one of the professional services excluded from the Professional Corporation Law. To select the correct certificate of formation, you must cancel the filing and return to the Business Organizations Menu and select the correct entity type.
  • Other Professional Purposes: Some services that may be defined as a “professional service” may be rendered through a for-profit corporation.  Professionals that may form for-profit corporations include: engineers; architects; registered public surveyors; securities brokers/dealers; enrolled agents; pharmacists; real estate brokers/agents; real estate or home inspectors, private security investigators; interior designers; and court reporters.  Should you wish to form a corporation to engage in the professional services provided by such professionals, you may choose to form the entity as a for-profit corporation. 

    In some cases, professionals may provide professional services under a for-profit corporation or a professional corporation. For example, insurance agents are permitted to form either professional corporations or business corporations. In addition, CPA firms with non-CPA owners may form as for-profit corporations. Firms that will be owned exclusively by certified public accountants may still form as professional corporations. 

    Please check with the licensing or regulatory board for more specific licensing or registration requirements governing firms providing the professional service.
    If a professional service may be rendered through a for-profit corporation and you seek to form a for-profit corporation for this purpose, you must cancel the filing and return to the Business Organizations Menu to select the correct entity type.
  • 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 statutorily required provisions have been drafted with standard pre-printed statements. 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 $300 must be provided before the filing is submitted (BOC § 4.157). 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 Account Maintenance Menu.
  • Entity Name and Type Screen: The corporate name must contain one of the following words of organization or an abbreviation thereof: Professional Corporation, Company, Corporation, Incorporated, or Limited. The professional corporation may not adopt any name contrary to the ethics of the profession being incorporated. Many professions require that the name of the professional be included in the corporate name. For specific requirements, consult the regulatory board and the rules of ethics governing the profession prior to filing the certificate of formation.

    After entering a name, you may wish to conduct a preliminary search of the name by clicking on the "Name Availability Search" button.
  • 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.
  • Director Screen: A minimum of one director is required. A director must be a natural person; there are no residency requirements for directors. Only persons duly licensed in Texas to render the professional service for which the corporation is organized may serve as directors or officers. Please note that this form is designed for a corporation managed by a board of directors. Consequently, this form should not be used if you wish to form a close corporation managed by its shareholders or a corporation that is managed by a shareholders' agreement.

    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.
  • Authorized Shares Screen: Shares represent ownership interest in the corporation. A professional corporation may issue shares to professional individuals (i.e., natural persons duly licensed in Texas to render the same professional service for which the corporation is organized) and to professional organizations (i.e., persons, other than individuals, whether for-profit, nonprofit, domestic or foreign, including a nonprofit corporation or nonprofit association, that renders the same professional service as the professional corporation only through owners, members, managerial officials, employees, or agents, each of whom is a professional individual or professional organization). Enter the total number of shares that the corporation will have authority to issue. You also must determine whether the shares of the corporation are to have a stated par value, or if the shares are without a stated par value. The default is set at "par value."
  • Par Value: "Par value" means the stated dollar amount assigned to a share. In general terms, it represents the minimum stated amount for which each share shall be issued. For example: If the corporation has authorized a total of 1,000 shares of common stock of $1.00 par value, and if payment for the share is to be made in cash, the corporation must receive at least $1.00 for each share issued. Do not state that the shares have $0 par value when you mean to indicate that the shares are to be without a stated par value.
  • No Par Value: Select the "no par value" radio button if the shares are to be without a stated par value. Shares that are designated as having no par value may be issued for an amount of consideration determined by the board of directors.
  • Additional Class or Series of Shares: If the corporation is to have more than one class of shares or if the shares of a class are to be issued in series, then click on the "Add Additional Authorized Shares" button to initiate entry for such class/series. Information regarding the relative rights, preferences, and limitations for each class or series is to be provided on the Supplemental Provisions and Attachments Screen as additional text or as an attached file.
  • Purpose Screen: A professional corporation may be organized under title 7 of the BOC only for the purpose of rendering one specific type of professional service and services ancillary thereto, except in the case of related mental health professionals. Please refer to the Commentary Section for further information on permitted purposes.
  • Supplemental Provisions and Attachments Screen: Additional space has been provided for the entry of 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 submitted 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. 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 professional corporation exists perpetually unless provided otherwise in the certificate of formation. The duration of a professional 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 203 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 professional 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. The organizer of a professional corporation is not required to be duly licensed in Texas to render the same professional service for which the corporation is organized. 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; using the back button 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.
  • Franchise Taxes: State franchise tax information may be obtained from the Comptroller of Public Accounts, Tax Assistance Section, Austin, Texas, 78774-0100, (512) 463-4600 or (800) 252-1381. The Corporations Section home page provides links to the IRS and Texas Comptroller web sites.