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- 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 [email protected].
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.
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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.
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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.
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