How to File Amendments to a Certificate of Formation in Texas

As a business evolves, new issues can arise that weren't originally contemplated. A business entity like a corporation can amend information in its articles of incorporation at any time. A certificate of amendment typically takes effect after it has been filed by the Texas Secretary of State.

The party amending information must fill out the appropriate form and pay the required fee. The fee for a certificate of amendment for most Texas entities is $150. The fee for a certificate of amendment for a nonprofit corporation or cooperative association is $25.

In Texas, most types of business entities organized under the laws of the state are required to file a certificate of formation with the Texas Secretary of State before they can lawfully conduct business.

The exception is a general partnership, which does not need to file such a certificate. A certificate of formation contains the company’s articles of incorporation. The filing fee for a certificate of formation for a for-profit corporation or an LLC is $300.

Articles of incorporation contain basic information about the company, including the name and purpose of the company and the names of members and managers for a limited liability company (LLC), or officers and directors for a corporation.

A corporation must provide the number of shares authorized, how many outstanding shares exist and the classes of stock the corporation issues. Amendments to the certificate of formation change the original information about the company.

The template for articles of incorporation can be found in the appropriate state form for the entity’s certificate of formation. These state forms are drafted to meet minimal statutory filing requirements. They are not a substitute for the advice and services of an attorney and/or a tax specialist.

The party filing the form must file information required for the particular business entity’s certificate of formation. The form will contain the fields that comprise the articles of incorporation. For example, the certificate of formation for an LLC will require the party filing to provide:

• Name of the entity.
• Initial registered agent who receives service of process for the company.
• Business address for the registered agent.
• Initial governing parties.
• Initial mailing address.
• Supplemental provisions and information.
• Name and address of the organizer, the party filing the certificate of formation.
• Date certificate of formation will become effective.
• Date, signature and printed name of organizer.

Texas has a wide variety of forms to amend different information found in a certificate of formation. These include forms to:

• Change registered agent and/or registered office.
• Amend registration of foreign (out of state) filing entity.
• Restrict transfer of shares.
  
• Prove the resignation of the registered agent.

A party should look to the correct form to determine what information to provide. For example, the form for certificate of amendment requires:

• Business type of filing entity, such as LLC or limited partnership (LP).
• Existing name of filing entity.
  
• New name of filing entity.
• Amended registered agent and registered office.
• Other altered, added or deleted provisions.
• Effective date of document.
  
• Signature, date and printed name of filing party.
  

The person who should sign the amendment filed with the Texas Secretary of State depends on the type of business entity.

A person signing as an individual can sign their own name. A person signing on behalf of an entity should state the capacity in which they are signing. For example: “By ABC Corporation, John Doe, President” is the appropriate way to sign on behalf of a corporation.

Let's look at some of the frequently asked questions relating to how to file an amendment to a certificate of formation in Texas.

A corporation, LLC, LP or registered foreign entity must continuously maintain a registered office address in Texas. The only way to change a registered office address is to file a statement of change.

A company must file a statement of change of registered office address when the location has not changed but the address has been changed due to a postal or “911” change. The procedures for changing an entity’s address differ according to the business type.

A corporation or LLC changes management by following its procedures for removal or resignation. These are typically in the company’s bylaws, regulations or company agreement. After the company has internally made the change in management, it can update its records with the Texas Secretary of State.

First, corporations and LLCs must update their management information every year on the Public Information Report filed with the Texas Comptroller of Public Accounts. The comptroller sends this information to the secretary of state, which then updates the management records.

Next, corporations can file an amendment with the secretary of state to update the director information. LLCs may file an amendment to update management information. Such amendments are not required. These actions will update the information in the records of the secretary of state and comptroller.

A professional corporation is a corporation that provides professional services such as medicine or dentistry. A professional corporation can convert to a for-profit corporation, but cannot become a business corporation.

There is no filing requirement for corporations or LLCs when there is an ownership change. If the registered agent or office information has changed, the business must update that information by including the change in the amendment document or by filing a statement of change of registered agent or registered office.

A public benefit corporation is a domestic (Texas-based) for-profit corporation intended to produce a public benefit and operate in a responsible and sustainable manner. A for-profit corporation may elect to be a public benefit corporation.

A conversion is not necessary. The company may file a certificate of amendment to amend its certificate of formation to include the necessary language.

The Texas Secretary of State does not provide a form for creating a public benefit corporation. A company may draft its own certificate of formation in accordance with Chapters 3 and 21 of the Texas Business Organization Code.

The formation document should include one or more specific public benefits to be promoted by the corporation and a statement that the filing entity is a for-profit corporation electing to be a public benefit corporation.

A public benefit corporation name can contain the words “public benefit corporation,” the abbreviation “P.B.C.” or the designation “PBC.” If the entity does not include one of these identifiers in its name, there may be other internal notice requirements.

A certificate of correction corrects typographical errors in filed instruments. The fee for a certificate of correction is $15. In a certificate of correction, the party should provide:

• Name of filing entity.
• Filing instrument to be corrected.
• Date filing instrument was filed with Texas Secretary of State.
• Corrected entity name.
• Corrected registered agent name.
• Other errors or corrections, including material that should be added, altered or deleted.
• Whether original filing instrument was defectively or erroneously signed, sealed, acknowledged or verified. Fling party should provide a correctly signed, sealed, acknowledged or verified filing instrument.
• Correction to a merger, conversion or exchange.
  
• Signature, date and printed name of filing party.

A certificate of correction can only be used to correct errors or inaccuracies in drafting or execution of a filed instrument. Certificates of correction cannot cancel a filing or add, alter or delete a statement that would have caused the instrument not to conform to law at the time it was originally filed.

A party can submit a certificate of amendment to the Texas Secretary of State by:

• Online via SOSDirect, an online business service. SOSDirect filings for a certificate of amendment are limited to name changes.
• Fax at: 512-463-5709.
• Mail at: Texas Secretary of State, Corporations Section, P.O. Box 13697, Austin, TX 78711-3697.
• Delivery at: Texas Secretary of State, James Earl Rudder Office Building, 1019 Brazos, Austin, TX 78701.

A document sent by courier or FedEx should be sent to the delivery address. The Texas Secretary of State does not require a wet ink signature. Copies and electronically signed documents are accepted.

As of April 2023, the Texas Secretary of State is experiencing delays. Non-expedited documents sent by mail or fax are processed within 70 to 72 business days. Expedited documents are processed within 12 to 14 business days.

Electronic documents submitted through SOSUpload are processed within 13 to 15 business days. Electronic documents submitted through SOSDirect are processed within 10 to 12 business days. Expedited service is available for an additional $25 per document.

Certain filings may be made effective on a date and/or time after the date of receipt. The delayed effective date may be no more than 90 days from the date the instrument is signed. The party providing the document may provide a time along with the delayed effective date.

The time may not be specified as midnight, noon, 12:00 a.m. or 12:00 p.m. The time provided will always be entered in the Texas Secretary of State’s computer system using Central Time. This is true even if the document specifies time from another time zone.

A delayed effectiveness provision must be stated within a document. Instructions relating to the effectiveness in a cover letter will not be sufficient. A party may not request delayed effectiveness for the reservation of a name, the registration of a name, a statement of event or fact filing or a certificate of abandonment.

A certificate of abandonment may be used to abandon a filing instrument that has not yet taken effect. There is no provision in the Texas Business & Commerce Code for delayed effectiveness for an assumed name certificate (doing business as, or DBA certificate) or an abandonment of assumed name certificate.

A party can find a certificate of formation and other documents on record for a company registered with the Texas Secretary of State by ordering copies of documents by:

• Online via SOSDirect.
• Phone at: 512-463-5578.
• Email: [email protected].
  
• Mail: Certifying Team, Texas Secretary of State, P.O. Box 13697, Austin, TX 78711-3697.

A party can order a certified copy of the filed document. They can also order a certificate of fact, which confirms that a document, such as a certificate of formation or registration, was filed with the Texas Secretary of State on a certain date, the business is in existence, and the business has a specific current legal name.

A party should order a certificate of account status (formerly known as a certificate of good standing) from the Texas Comptroller of Public Accounts. The certificate of account status regards the entity’s franchise tax account status.