INSTRUCTIONS FOR AN APPLICATION FOR REGISTRATION OF

A LIMITED LIABILITY COMPANY

(Forms 304/305)

·         Commentary: Chapter 9 of the Texas Business Organizations Code (BOC) requires a foreign limited liability company [hereinafter LLC] that is transacting business in Texas to file an application for registration with the Secretary of State.

The secretary of state does not provide legal opinions as to whether, given a particular set of circumstances, a foreign entity is or will be transacting business in the state and is required to register. Transacting business is not specifically defined by the BOC, but does not include an isolated transaction completed in 30 days or less, doing business in interstate commerce, or merely maintaining a bank account in this state. Generally, a foreign entity is transacting business in Texas if it has an office or an employee carrying on its business in this state or is otherwise pursuing one of its purposes in this state. For example, when the purpose of the LLC company is to own and receive income from rental properties, it is probably transacting business in this state if it owns an apartment complex in Texas, even if another entity actually manages the property. It is recommended that you seek the advice of an attorney if you are uncertain whether the activities of the company require registration with the secretary of state.

Please note that a foreign entity serving as a general partner in a partnership transacting business in Texas is deemed to be transacting business in Texas and is thus required to register with the secretary of state. See Op. Tex. Att'y Gen. No. JM-7 (1983).

·         Foreign Professional Limited Liability Company: This form is also used to register a foreign professional limited liability company [PLLC] in Texas. A foreign PLLC is one that is organized in its jurisdiction of formation to render a professional service. "Professional service" means any type of personal service that requires as a condition precedent to the rendering of the service the obtaining of a license, including the personal service rendered by an attorney-at-law, dentist, doctor, physician, psychologist, or veterinarian. A foreign PLLC may not obtain a registration unless the jurisdiction in which the company is organized would permit reciprocal admission of the LLC if it were organized in Texas. The secretary of state does not maintain a listing of states meeting the reciprocity requirement.

·         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 application for registration.

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. Certain statutorily required provisions have been drafted with standard pre-printed statements. For example, a foreign LLC must exist as a valid entity in its jurisdiction of formation at the time of registration. A statement to that effect is included in the application document. The application also contains a statement that the foreign entity consents to the appointment of the secretary of state as an agent of the foreign entity for service of process under the circumstances described by section 5.251 of the BOC. Consequently, please review the document carefully for accuracy since the Texas Business Organizations Code provides that a person commits an offense if the person signs a document the person knows is false in any material respect with the intent that the document 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.

·         Fee: The statutory fee of $750 must be submitted (BOC § 4.154). 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.

·         Late Filing Penalty:Section 9.054 of the BOC imposes a late filing fee on a foreign entity that has transacted business in Texas without first having registered with the secretary of state. A foreign entity that has transacted business in the state for more than 90 days is subject to a late fee equal to the registration fee of the entity for each year of delinquency. The late fee will be assessed at the time of submission of the document.

·         Filing Type Selection Screen—Beginning Date of Business Information: Once you have selected "Application for Registration" as the document to be filed, you must provide the date on which the foreign entity first transacted, or the date the entity intends to transact, business in Texas in the field provided in the following format: mm/dd/yyyy (e.g., 12/31/2010).

·         Organization Type and Name Screen: Before entering the legal name of the company, you must first select the type of LLC you intend to qualify. Selection of the organization type will determine the content of the electronic form as well as the variable information you will be asked to provide. If the company will not be engaged in providing a licensed professional service, select option 1, Limited Liability Company. If the foreign LLC is to provide a licensed professional service, then you must select option 2, Professional Limited Liability Company as the organization type.

·         Company Name—Type 1 (LLC): If 1 is selected as the organization type, the company name must include the words "Limited Liability Company" or "Limited Company" or an accepted abbreviation of such terms. The word "Company" or the abbreviations "Co." or "Ltd." alone are unacceptable to satisfy the requirement that the name contain an organizational term. If the name does not include an appropriate term, see Option A.

·         Company Name—Type 2 (PLLC): If 2 is selected as the organization type, the name must include the words "Professional Limited Liability Company" or an accepted abbreviation of such terms. If the name does not include the appropriate terms, see Option A.

·         Option A: If the company name does not contain one of the accepted words of organization for the entity type selected, you must add an appropriate organizational designation to the company name for purposes of doing business in Texas by completing Option A. For example, if the name of the company in its jurisdiction of formation is EntityNameSearch.com, Co., then the company would need to complete Option A to qualify the company under the name EntityNameSearch.com, Co., LLC.

·         Option B: Option B should be used only when the legal name of the company is not available for its use in Texas because the entity's name is the same as, deceptively similar to, or similar to the name of an existing domestic or foreign filing entity, or a name reservation or registration filed with the secretary of state. In this case, the entity must obtain its registration and transact business under an assumed name. The assumed name must meet the same requirements of name availability as do entity names. If an assumed name must be used, enter the assumed name in Option B.

After entering a name in a name field, you may wish to conduct a preliminary search of the name by clicking on the "Name Availability Search" button.

·         Name Availability Search Option: Under sections 5.053 and 9.004 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.

·         Jurisdictional Information Screen: You must provide certain information regarding the foreign entity on this screen.

·         FEIN: If the company has obtained a federal employer identification number [FEIN] from the Internal Revenue Service [IRS], enter the tax identification number in the field provided. Enter the nine (9) digit number without punctuation; for example, 123456789. If the entity has not obtained an FEIN at this time, then move your cursor or tab over to the next field.

·         State/Country: If the foreign entity is formed under the laws of another state of the United States, please enter the two-letter abbreviation used by the postal service to identify the state of formation. After identifying the jurisdiction of formation, you may tab to the date of formation field since the country designation default is set as United States of America.

Non-US Jurisdictions:  If the foreign entity is a non-US corporation, then you may enter a recognized abbreviation or postal code (no more than 3 characters) for the state/province in the state field. For example, a Canadian corporation registered/formed in British Columbia would enter BC in the state code field. You may use the drop down menu to select the appropriate country of formation. If the entity is created under the laws of a foreign jurisdiction for which there is no state or province code, simply select the appropriate foreign country and leave the state field blank.

·         Formation Date: Enter the month, day, and year of formation in the jurisdiction of formation in the following format: mm/dd/yyyy (e.g., 05/15/2000).

·         Principal Office Address Screen: Provide the street or mailing address of the LLC’s principal office.

·         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 LLC cannot act as its own registered agent; do not enter the LLC 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 a managerial official 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 application for registration; however, the foreign entity is provided with the option of including a copy of the agent’s written or electronic consent as part of the application for registration 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 application for registration 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 application for registration will show selection of a pre-printed statement that indicates that the entity has retained a copy of the consent of registered agent.

·         Purpose Screen: The purpose or purposes that the company proposes to pursue in Texas should be entered in the space provided.

·         Organization Type 1 (LLC): The stated purpose may use general language, such as "transaction of all lawful business"; however, it is not acceptable to use "transaction of all lawful business permitted under the laws of [another state]." Other state laws may permit the LLC to pursue purposes not authorized by Texas law, and a foreign LLC can have no greater rights or privileges than a domestic LLC.

·         Organization Type 2 (PLLC): A foreign PLLC may obtain a registration to perform a professional service in Texas. A "professional service" is defined as any type of personal service that requires that the person providing the service obtain a license prior to rendering that service. This includes the personal services of an attorney, architect, certified public accountant, dentist, doctor, podiatrist, nurse, psychologist, family therapist, or insurance agent. The statement of purpose should be specific. Do not state that the PLLC is transacting all lawful business for which a PLLC may be formed or registered in Texas.

·         Single Purpose: Pursuant to sections 2.004 and 301.005 of the BOC, a foreign professional entity may engage in only one type of professional service, unless the entity is expressly authorized to provide more than one type of professional service under state law regulating the professional services.

·         Joint Practice by Certain Professionals: Pursuant to section 301.012 of the BOC, the following professionals are permitted to jointly form and own a PLLC to perform a professional service that falls within the scope of practice of those practitioners.

1.      Doctors of medicine and doctors of osteopathy may jointly form and own a PLLC with persons licensed as podiatrists by the Texas State Board of Podiatric Medical Examiners to perform professional services that fall within the scope of practice of those practitioners.

2.      Professionals, other than physicians, engaged in related mental health fields such as psychology, clinical social work, licensed professional counseling, and licensed marriage and family therapy may form a PLLC that is jointly owned by those practitioners to perform professional services that fall within the scope of practice of those practitioners.

3.      Doctors of medicine and doctors of osteopathy may jointly form and own a PLLC with persons licensed as optometrists or therapeutic optometrists by the Texas Optometry Board to perform professional services that fall within the scope of practice of those practitioners. Only a physician, optometrist, or therapeutic optometrist may hold an ownership interest in a PLLC formed for the joint practice of medicine or osteopathy and optometry or therapeutic optometry.

Please note that a professional listed in paragraph (1) may not jointly form and own a PLLC with a professional described in paragraph (2).

The state agencies exercising regulatory control over professions to which these joint practice provisions apply continue to exercise regulatory authority over their respective licenses.

·         Governing Authority Screen: There are two management types for LLCs. An LLC may be managed by a manager or managers (A), or managed by its members (B). The default management type is set as manager-managed (A), if management of the LLC is reserved to its members, select (B).

Provide the name and address of each manager or managing-member. If a member or manager is not an individual, provide the full name of the legal entity in the space provided for a business entity name.

A minimum of one manager or member is required. Press the "Add Manager/Managing Member" button to initiate the entry of management name and address information. After entering the information, click on "Update" to return to the Management Screen to continue. You may edit or delete the manager/member information displayed in the grid by clicking on the appropriate button.

·         PLLC Restrictions: A PLLC may render its professional service in this state only through a member, manager, officer, employee, or agent who is a professional individual or a professional organization. A professional individual is an individual licensed or otherwise authorized within this state to render the same professional service as the PLLC. A professional organization means a person (other than an individual), whether organized for-profit or not, that renders the same professional service as the PLLC only through its owners, members, shareholders, managers, associates, employees or agents who are professional individuals or professional organizations.

·         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.

·         Execution Screen: An authorized manager or member of the foreign LLC must sign the application for registration. A person signs the electronic document by typing the person's name and title in the field provided. For example, Jane Esquire, President of ABC Organizers, Inc., Manager

·         Delayed Effective Date: An application for registration 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’s registration 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.

·         Franchise Taxes: Limited liability companies are subject to franchise taxes in Texas. Franchise tax information may be obtained from the Comptroller of Public Accounts, 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.

  • Assumed Name: If the foreign LLC obtained its registration under an assumed name, then the LLC is required to file an assumed name certificate in compliance with chapter 71 of the Texas Business & Commerce Code. The assumed name certificate is to be filed with the secretary of state and with the county clerk in the county in which the registered office is located and the county in which the principal office is located. The form promulgated by the secretary of state for making the assumed name filing is form number 503. This form is not acceptable for filing in the county clerk's office because it does not include the notary acknowledgement required for county filings. The fee for filing the assumed name certificate is $25.00. DO NOT INCLUDE THE ASSUMED NAME CERTIFICATE AS AN ATTACHMENT TO THE APPLICATION FOR REGISTRATION. IT MUST BE SUBMITTED AS A SEPARATE FILING.