LLC Maintenance
§ 6.1Amendment of Certificate of Formation
An LLC may amend its certificate of formation at any time. See Tex. Bus. Orgs. Code § 3.051(a). The certificate of amendment (SOS Form 424, form 4-8 in this manual) may amend the certificate of formation only with provisions that (1) would be permitted if the amended certificate of formation were a newly filed original or (2) effect a change, exchange, reclassification, subdivision, combination, or cancellation in the membership interest or the rights of members of the LLC. Tex. Bus. Orgs. Code § 3.051(b).
A domestic or foreign LLC having authority to transact business in Texas may use an assumed name. Tex. Bus. Orgs. Code § 5.051. The secretary of state does not check an assumed name for purposes of availability; however, the secretary of state will reject an assumed name certificate (SOS Form 503, form 3-3 in this manual) if the name shown in the certificate does not meet the definition of an assumed name. An assumed name for an LLC is defined as any name other than the name stated in its certificate of formation. Tex. Bus. & Com. Code § 71.002(2)(H).
PRACTICE TIP: A foreign LLC that must obtain its registration under an assumed name should not submit an assumed name certificate that attempts to list the LLC’s legal name as its assumed name. Although the TBOC may bar the foreign LLC from obtaining a registration under its legal name, the LLC’s legal name in its jurisdiction of organization is not an assumed name as defined by Texas Business and Commerce Code section 71.002(2).
The filing requirements for LLC assumed name certificates are similar to the filing requirements for assumed name certificates filed by an incorporated business or profession.
PRACTICE TIP: As of September 1, 2019, it is no longer necessary to make a dual assumed name certificate filing at the county level.
Texas Business and Commerce Code chapter 71 does not provide for the filing of a correction to an assumed name certificate. If the assumed name certificate on file contains incorrect information or a typographical error, the assumed name certificate may be abandoned, and a new assumed name certificate may be filed.
Unless otherwise provided in the assumed name certificate, each assumed name certificate for an LLC must be renewed every ten years. An assumed name certificate can be renewed by filing a new certificate with the secretary of state in the same manner as the original. If at any point an LLC wishes to no longer use its assumed name, the LLC may file an abandonment of assumed name certificate (SOS Form 504, form 4-9 in this manual) with the Texas secretary of state.
§ 6.3Maintenance of Registered Agent and Office
§ 6.3:1Failure to Maintain Registered Agent and Office
The LLC must maintain a current registered agent and registered office located in the state of Texas. If the secretary of state determines that the LLC’s registered agent is not current, that the registered agent is not located at the street address provided as the registered office address, or that the registered office address is merely the street address of a business providing mailbox services, the secretary of state will notify the LLC of its failure to maintain a registered agent and office as required by law. Failure to continuously maintain a current registered agent and registered office in Texas may result in the involuntary termination of the domestic LLC or the revocation of the foreign LLC’s registration.
§ 6.3:2Updating Registered Agent or Office Address
If the registered agent or office address changes, the LLC or the registered agent must file a change of registered agent/office (SOS Form 401, form 4-2 in this manual) with the secretary of state. A registered agent may file a statement that applies to more than one filing entity. Tex. Bus. Orgs. Code § 5.203(d).
PRACTICE TIP: When making a change to the legal name or registered office address of a filing entity, determine whether the LLC itself is designated as the registered agent of another entity (for example, an LLC general partner of a Texas LP is the designated registered agent of the LP). A filing effecting a change to the name or address of the designated agent (in this example, the LLC general partner) does not effect a change or update to the certificate of formation of the represented entity (the LP).
§ 6.4Public Information Report
§ 6.4:1Annual Franchise Tax Report
Pursuant to section 171.203 of the Texas Tax Code, regardless of whether an LLC is required to pay any franchise taxes, it is nonetheless required to file a report with the comptroller containing (1) the name of the LLC; (2) the name of each entity that owns a 10 percent or more interest in the LLC; (3) the name, title, and mailing address of each officer, manager, and managing member of the LLC; (4) the name and address of the LLC’s registered agent; and (5) the address of the LLC’s principal office and principal place of business. Tex. Bus. Orgs. Code § 171.203(a). This public information report is required to be filed annually in conjunction with the LLC’s franchise tax return or no-tax-due return, as applicable. Tex. Bus. Orgs. Code § 171.203(b). The LLC must also send a copy of the public information report to each person named in the public information report. Tex. Bus. Orgs. Code § 171.203(d).
§ 6.4:2Failure to File Franchise Tax Report
If an LLC fails to file the required annual public information report when due, the comptroller will send the LLC a notice of intent to forfeit allowing the LLC forty-five days to file the required public information report to avoid forfeiture. If the LLC fails to file the required public information report within that forty-five-day period, the comptroller will forfeit the LLC’s right to transact business in Texas. Once an LLC’s right to transact business in Texas has been forfeited, the LLC will no longer have the right to sue or to defend itself in a court in Texas, and each manager and officer of the LLC will be personally liable for the debt of the LLC. Additionally, the managers and officers of the LLC may have personal liability for acts and omissions of the LLC that occur while the LLC’s right to transact business is forfeited.