BUSINESS & COMMERCE CODE
CHAPTER 36. ASSUMED BUSINESS OR PROFESSIONAL NAME
SUBCHAPTER A. GENERAL PROVISIONS
§ 36.01. SHORT TITLE. This chapter may be cited as the
Assumed Business or Professional Name Act.
Added by Acts 1977, 65th Leg., p. 1095, ch. 403, § 1, eff. Aug.
29, 1977.
§ 36.02. DEFINITIONS. In this chapter, unless the
context otherwise requires:
(1) "Partnership" means a joint venture or general
partnership other than a limited partnership or a registered
limited liability partnership.
(2) "Company" means a real estate investment trust,
joint-stock company, or any other business, professional, or other
association or legal entity that is not incorporated other than a
partnership, limited partnership, limited liability company, or
registered limited liability partnership.
(3) "Corporation" means a domestic or foreign
corporation, professional corporation, professional association,
other corporation, or any other business, professional, or other
association or legal entity that is incorporated.
(4) "Person" includes an individual, partnership,
limited partnership, limited liability company, registered limited
liability partnership, company, or corporation.
(5) "Representative" means a trustee, administrator,
executor, independent executor, guardian, conservator, trustee in
bankruptcy, receiver, or any other person appointed by a court or by
trust or will to have custody of, take possession of, have title to,
or otherwise be empowered to control the person or property of any
person.
(6) "Estate" means the property of any person which is
administered by a representative.
(7) "Assumed name" means:
(A) in the case of an individual, a name that does
not include the surname of the individual;
(B) in the case of a partnership, a name that does
not include the surname or other legal name of each joint venturer
or general partner;
(C) in the case of an individual or a
partnership, a name, including a surname, that suggests the
existence of additional owners by including words such as
"Company," "& Company," "& Son," "& Sons," "& Associates,"
"Brothers," and the like, but not words that merely describe the
business or professional service being conducted or rendered;
(D) in the case of a limited partnership, any
name other than the name stated in its certificate of limited
partnership;
(E) in the case of a company, any name used by the
company;
(F) in the case of a corporation, any name other
than the name stated in its articles of incorporation or
association or comparable document;
(G) in the case of a registered limited liability
partnership, any name other than the name stated in its application
filed with the office of the Secretary of State or comparable
document; and
(H) in the case of a limited liability company,
any name other than the name stated in its articles of organization
or comparable document.
(8) "Registrant" means any person that has filed, or
on whose behalf there has been filed, an assumed name certificate
under the provisions of this chapter or other law.
(9) "Office" means, in the case of any person that is
not an individual or that is a corporation which is not required to
or does not maintain a registered office in this state, the
principal office of such person and also its principal place of
business if not the same as its principal office. In the case of a
corporation, limited partnership, registered limited liability
partnership, or limited liability company which is required to
maintain a registered office in this state, "office" means the
registered office and also its principal office if not the same as
its registered office.
(10) "Address" means a post office address and also
the street address if not the same as the post office address.
Added by Acts 1977, 65th Leg., p. 1095, ch. 403, § 1, eff. Aug.
29, 1977. Amended by Acts 1993, 73rd Leg., ch. 215, § 1.29, eff.
Sept. 1, 1993.
§ 36.03. EXCLUSION OF INSURANCE COMPANIES. The
provisions of this chapter shall not apply to any insurance company
as described in Subchapter A, Chapter 805, Insurance Code, which is
authorized to do business in this state except as such code shall
specifically provide.
Added by Acts 1977, 65th Leg., p. 1096, ch. 403, § 1, eff. Aug.
29, 1977. Amended by Acts 2003, 78th Leg., ch. 1276, § 10A.506,
eff. Sept. 1, 2003.
SUBCHAPTER B. ASSUMED BUSINESS OR PROFESSIONAL NAME CERTIFICATE
§ 36.10. FOR UNINCORPORATED BUSINESS OR PROFESSION OTHER
THAN A LIMITED PARTNERSHIP, REGISTERED LIMITED LIABILITY
PARTNERSHIP, OR LIMITED LIABILITY COMPANY. (a) Any person who
regularly conducts business or renders professional services other
than as a corporation, limited partnership, registered limited
liability partnership, or limited liability company in this state
under an assumed name shall file in the office of the county clerk
in each county in which such person has or will maintain business or
professional premises or, if no business or professional premises
are or will be maintained in any county, in each county where such
person conducts business or renders a professional service, a
certificate setting forth:
(1) the assumed name under which such business or
professional service is or is to be conducted or rendered;
(2) if the registrant is:
(A) an individual, his full name and residence
address;
(B) a partnership, (i) the venture or partnership
name, (ii) the venture or partnership office address, and (iii) the
full name of each joint venturer or general partner and his
residence address if he is an individual or its office address if
not an individual;
(C) an estate, (i) the name of the estate, (ii)
the estate's office address, if any, and (iii) the full name of each
representative of the estate and his residence address if he is an
individual or its office address if not an individual;
(D) a real estate investment trust, (i) the name
of the trust, (ii) the address of the trust, (iii) the full name of
each trustee manager and his residence address if he is an
individual and its office address if not an individual; or
(E) a company other than a real estate investment
trust, or a corporation, (i) the name of the company or corporation,
(ii) the state, country, or other jurisdiction under the laws of
which it was organized, incorporated, or associated, and (iii) its
office address;
(3) the period, not to exceed 10 years, during which
the assumed name will be used; and
(4) a statement specifying that the business or
professional service that is or is to be conducted or rendered in
the county under such assumed name is being or will be conducted or
rendered as a proprietorship, sole practitioner, partnership, real
estate investment trust, joint-stock company, or some other form of
unincorporated business or professional association or entity,
other than a limited partnership, limited liability company, or
registered limited liability partnership, as the case may be.
(b) A certificate filed under Subsection (a) of this section
shall be executed and acknowledged by each individual whose name is
required to be stated therein or by his representative or attorney
in fact, and in the case of any person not an individual the name of
which is required to be stated therein, the certificate shall be
executed and acknowledged under oath on behalf of such person by its
representative or attorney in fact or by a joint venturer, general
partner, trustee manager, officer, or anyone having comparable
authority, as the case may be, of such person. Any certificate
executed and acknowledged by an attorney in fact shall include a
statement that such attorney in fact has been duly authorized in
writing by his principal to execute and acknowledge the same.
Added by Acts 1977, 65th Leg., p. 1096, ch. 403, § 1, eff. Aug.
29, 1977. Amended by Acts 1993, 73rd Leg., ch. 215, § 1.30, eff.
Sept. 1, 1993.
§ 36.11. FOR INCORPORATED BUSINESS OR PROFESSION,
LIMITED PARTNERSHIP, REGISTERED LIMITED LIABILITY PARTNERSHIP, OR
LIMITED LIABILITY COMPANY. (a) Any corporation, limited
partnership, registered limited liability partnership, or limited
liability company which regularly conducts business or renders
professional services in this state under an assumed name, or which
may be required by law to use an assumed name in this state to
conduct such business or render such services, shall file in the
office of the Secretary of State and, (1) if such corporation,
limited partnership, registered limited liability partnership, or
limited liability company is required to maintain a registered
office in this state, in the office of the county clerk of the
county in which such registered office is located and of the county
in which its principal office is located if within this state and
not the same county where the registered office is located; or (2)
if such corporation, limited partnership, registered limited
liability partnership, or limited liability company is not required
to or does not maintain a registered office in this state, in the
office of the county clerk of the county in which its office within
this state is located or if the corporation, limited partnership,
registered limited liability partnership, or limited liability
company is not incorporated, organized, or associated under the
laws of this state, in the office of the county clerk of the county
in which its principal place of business in this state is located if
not the same as its office, a certificate setting forth:
(1) the assumed name under which such business or
professional service is or is to be conducted or rendered;
(2) the name of the corporation, limited partnership,
registered limited liability partnership, or limited liability
company as stated in its articles of incorporation, association, or
organization or in its certificate of limited partnership or
application filed with the office of the Secretary of State, or
other comparable document;
(3) the state, country, or other jurisdiction under
the laws of which it was incorporated, organized, or associated and
address of its registered or similar office in that state, country,
or jurisdiction;
(4) the period, not to exceed 10 years, during which
the assumed name will be used;
(5) a statement specifying that the entity is a
business corporation, nonprofit corporation, professional
corporation, professional association, or other type of
corporation, limited partnership, registered limited liability
partnership, limited liability company, or some other type of
incorporated business, professional or other association, or legal
entity;
(6) if the corporation, limited partnership,
registered limited liability partnership, or limited liability
company is required to maintain a registered office in this state,
(A) the address of such registered office and the name of its
registered agent at such address, and (B) the address of its
principal office if not the same as that of its registered office in
this state;
(7) if the corporation, limited partnership,
registered limited liability partnership, or limited liability
company is not required to or does not maintain a registered office
in this state, its office address in this state and if the
corporation, limited partnership, registered limited liability
partnership, or limited liability company is not incorporated,
organized, or associated under the laws of this state, the address
of its place of business in this state and its office address
elsewhere, if any; and
(8) the county or counties within the state where
business or professional services are being or are to be conducted
or rendered under such assumed name.
(b) A certificate filed in the office of the Secretary of
State under Subsection (a) of this section shall be executed by an
officer, general partner, member, manager, representative, or
attorney in fact for the corporation, limited partnership,
registered limited liability partnership, or limited liability
company. A certificate executed by an attorney in fact shall
include a statement that the attorney in fact has been duly
authorized in writing by his principal to execute the same. A
certificate filed in the office of the county clerk under
Subsection (a) of this section shall be executed and acknowledged
in the manner provided by Section 36.10(b) of this code for a
certificate filed under that section.
(c) Nothing in this chapter shall require a corporation,
limited partnership, registered limited liability partnership, or
limited liability company or its shareholders, associates,
partners, or members to file an assumed business or professional
name certificate in order to conduct business or render a
professional service within this state under the name of the
corporation, limited partnership, registered limited liability
partnership, or limited liability company as stated in its articles
of incorporation, association, or organization, certificate of
limited partnership, application filed with the office of the
Secretary of State, or other comparable document.
(d) Notwithstanding Subsections (a)-(c) of this section, a
limited partnership, registered limited liability partnership, or
limited liability company that filed a certificate in compliance
with Section 36.10 of this chapter before September 1, 1993, is not
required to file a new certificate that complies with this section
until the earlier of:
(1) the expiration of the period specified in the
existing certificate during which the assumed name will be used; or
(2) a material change occurs in the information set
forth in the existing certificate.
Added by Acts 1977, 65th Leg., p. 1097, ch. 403, § 1, eff. Aug.
29, 1977. Amended by Acts 1993, 73rd Leg., ch. 215, § 1.31, eff.
Sept. 1, 1993; Acts 1999, 76th Leg., ch. 327, § 1, eff. Sept. 1,
1999.
§ 36.12. MATERIAL CHANGE IN INFORMATION; NEW
CERTIFICATE. (a) Whenever an event occurs that causes the
information in a certificate filed pursuant to this chapter by a
person conducting business or rendering a professional service
under an assumed name in this state to become materially
misleading, a new certificate complying with Section 36.10 or
Section 36.11 of this chapter, as the case may be, shall be filed in
the office of the county clerk and of the Secretary of State, if
applicable, in which an original or renewal certificate was filed.
The new certificate shall be filed within 60 days after the
occurrence of the events which necessitates its filing.
(b) An event that causes the information contained in a
certificate filed under this chapter to become materially
misleading includes such matters as:
(1) a change in the name, identity, entity, form of
business or professional organization, or location of a registrant;
(2) in the case of a proprietorship or sole
practitioner, a change in ownership;
(3) in the case of a partnership, the admission of a
new partner or joint venturer or whenever any general partner or
joint venturer ceases to be associated with the partnership; or
(4) in the case of a registrant that is required by law
to maintain a registered or similar office and a registered or
similar agent at such office, a change in the address of such office
or identity of such agent.
(c) A new certificate filed under this section shall be
effective for a term not to exceed 10 years from the date it is
filed.
Added by Acts 1977, 65th Leg., p. 1098, ch. 403, § 1, eff. Aug.
29, 1977.
§ 36.13. DURATION AND RENEWAL OF CERTIFICATE. (a) A
certificate filed pursuant to this chapter in the office of the
county clerk and of the Secretary of State, if applicable, by any
person conducting business or rendering a professional service
under an assumed name in this state shall be effective for a term
not to exceed 10 years from the date the certificate is filed.
(b) At the end of the stated term, not to exceed 10 years,
the certificate shall become null and void and of no effect, unless
within six months prior to its expiration a renewal certificate
complying with the provisions of this chapter for an original
certificate shall be filed in the office of the county clerk and of
the Secretary of State, if applicable.
(c) A registrant may renew a certificate under this section
for any number of successive terms, but each such term shall not
exceed 10 years in duration.
Added by Acts 1977, 65th Leg., p. 1099, ch. 403, § 1, eff. Aug.
29, 1977. Amended by Acts 1999, 76th Leg., ch. 327, § 2, eff.
Sept. 1, 1999.
§ 36.14. ABANDONMENT OF USE OF ASSUMED BUSINESS OR
PROFESSIONAL NAME. (a) A registrant that has filed an assumed
business or professional name certificate under this chapter which
ceases to transact business or render professional services under
the assumed name stated in such certificate in this state may file
in the office of the county clerk and of the Secretary of State, if
applicable, where such certificate has been filed, a statement of
abandonment of use of a business or professional name setting
forth:
(1) the assumed business or professional name being
abandoned;
(2) the date on which the certificate was filed in the
office in which such statement is being filed and any other filing
office or offices, if any, where the certificate has been filed;
and
(3) the registrant's name and residence or office
address as would be required to be stated if the certificate were
being presently filed.
(b) A statement filed under Subsection (a) of this section
shall be executed and acknowledged in the same manner as would be
required if the registrant were filing an assumed business or
professional name certificate under this chapter.
Added by Acts 1977, 65th Leg., p. 1100, ch. 403, § 1, eff. Aug.
29, 1977.
§ 36.15. INDEX OF CERTIFICATES; FILING FEES. Each
county clerk and the Secretary of State shall keep an alphabetical
index of all assumed names which have been filed in his office
pursuant to the provisions of this chapter and of the persons filing
the same. The county clerk shall receive a fee of $2 for filing each
certificate or statement required or permitted to be filed pursuant
to this chapter, plus a fee of 50 cents for each name to be indexed.
The Secretary of State shall collect for the use of the state a fee
of $25 for indexing and filing each certificate or statement
required or permitted to be filed pursuant to this chapter. The
Secretary of State shall collect for the use of the state a fee of
$10 for filing each abandonment of use of assumed name. A copy of
such certificate or statement duly certified to by the county clerk
in whose office the same was filed or by the Secretary of State
shall be presumptive evidence in all courts in this state of the
facts therein contained.
Added by Acts 1977, 65th Leg., p. 1100, ch. 403, § 1, eff. Aug.
29, 1977. Amended by Acts 1981, 67th Leg., p. 752, ch. 284, § 1,
eff. Aug. 31, 1981; Acts 1983, 68th Leg., p. 314, ch. 69, § 9,
eff. Sept. 1, 1983.
§ 36.16. PRESCRIBED FORMS. The Secretary of State may
prescribe the forms to be used for filing any assumed business or
professional name certificate or statement that complies with this
chapter in his office or in the office of any county clerk in this
state. The use of such forms, however, shall not be mandatory
unless otherwise specifically provided by law.
Added by Acts 1977, 65th Leg., p. 1100, ch. 403, § 1, eff. Aug.
29, 1977.
§ 36.17. EFFECT OF FILING. Nothing in this chapter
shall be construed to give a registrant of an assumed business or
professional name any right to use the name when contrary to the
common law or statutory law of unfair competition, unfair trade
practices, common law copyright, or similar law. The mere filing of
an assumed business or professional name certificate pursuant to
this chapter shall not constitute actual use of the assumed name set
out therein for purposes of determining priority of rights.
Added by Acts 1977, 65th Leg., p. 1100, ch. 403, § 1, eff. Aug.
29, 1977.
§ 36.18. FILING OF REPRODUCTION. The Secretary of State
may accept for filing a photographic, photostatic, or similarly
reproduced copy of a signed original document required or
authorized to be filed in the office of the Secretary of State under
this chapter. A signature on a document required or authorized to
be filed in the office of the Secretary of State under this chapter
may be a facsimile.
Added by Acts 1999, 76th Leg., ch. 327, § 3, eff. Sept. 1, 1999.
SUBCHAPTER C. CIVIL AND CRIMINAL PENALTIES
§ 36.25. CIVIL PENALTIES. Failure to comply with the
provisions of this chapter by any person shall not impair the
validity of any contract or act by such person nor prevent such
person from defending any action or proceeding in any court of this
state, but such person shall not maintain an action or proceeding in
any court of this state arising out of a contract or act in which an
assumed name was used until an original, new, or renewed assumed
business or professional name certificate has been filed as
required by this chapter. In an action or proceeding brought
against a person that has not complied with this chapter, the
plaintiff or other party bringing the suit or proceeding may
recover, if the court shall so determine, expenses incurred,
including attorney's fees, in locating and effecting service of
process on such person.
Added by Acts 1977, 65th Leg., p. 1100, ch. 403, § 1, eff. Aug.
29, 1977.
§ 36.26. CRIMINAL PENALTY--GENERAL VIOLATION. (a) A
person conducting business or rendering a professional service in
this state under an assumed name who intentionally violates a
provision of this chapter commits an offense.
(b) An offense under this section is a Class A misdemeanor.
Added by Acts 1977, 65th Leg., p. 1101, ch. 403, § 1, eff. Aug.
29, 1977. Amended by Acts 1979, 66th Leg., p. 867, ch. 391, § 1,
eff. Aug. 27, 1979; Acts 1999, 76th Leg., ch. 327, § 4, eff.
Sept. 1, 1999.
§ 36.27. CRIMINAL PENALTY--FRAUDULENT FILING. (a) A
person may not knowingly or intentionally sign and present for
filing or cause to be presented for filing a document authorized or
required to be filed under this chapter if the document:
(1) indicates that the person signing the document has
the authority to act on behalf of the entity for which the document
is presented and the person does not have that authority;
(2) contains a material false statement; or
(3) is forged.
(b) A person who violates Subsection (a) of this section
commits an offense. An offense under this subsection is punishable
as if it were an offense under Section 37.10, Penal Code.
Added by Acts 1999, 76th Leg., ch. 327, § 5, eff. Sept. 1, 1999.
