Does an out-of-state company with a Texas headquarters or Texas-based officers have to register with the Texas Secretary of State?

TX AG Opinion GA-0726: When does a foreign company have to register in Texas?

Plain-English summary

The Texas Secretary of State asked whether a foreign business entity is "transacting business in Texas," and so must register under chapter 9 of the Business Organizations Code, in three situations: when the entity has no Texas employees and does most of its work outside Texas but has its principal office or principal place of business in Texas; when it instead has one or more directors, officers, or managers located in Texas; and when it is a holding company with its principal place of business in Texas that manages its subsidiaries from inside Texas. The office posed these because some unregistered entities, after being notified of the filing requirement, had responded that they were not transacting business in Texas even though they maintained some presence here.

Section 9.001 requires a foreign entity to register before transacting business in the state, but the Legislature never affirmatively defined "transacting business." Instead, it listed activities that, standing alone, do not constitute transacting business (for example, holding internal-affairs meetings, maintaining a securities transfer office, transacting business in interstate commerce, or conducting an isolated 30-day transaction), and it said that list is not exclusive.

The opinion concluded that whether a given foreign entity is transacting business in Texas, and therefore must register, is a fact question that depends on the specific circumstances of the entity's business here. It pointed out that even the limited facts in the hypotheticals (such as performing "most" services outside Texas) left it unable to tell whether the Texas activity was interstate commerce, which would be exempt. Because an attorney general opinion does not find facts or resolve factual disputes, the office said it could not determine whether the three described scenarios constituted transacting business as a matter of law.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Chapter 9 of the Business Organizations Code, including the registration triggers and the list of activities that do not constitute transacting business, may have been amended since 2009. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

Out-of-state companies with some Texas presence: The opinion explained that whether they had to register turned on the full facts of their Texas activity, not on any single feature like a Texas office or Texas-based officers, and that the statute lists activities that do not, by themselves, count as transacting business.

The Secretary of State's office: The opinion told the office that the AG could not resolve, as a matter of law, the three hypothetical scenarios it asked about, because each required a fact-specific analysis the opinion process cannot perform.

Anyone reading the registration statute: The opinion underscored that the Legislature did not define "transacting business" affirmatively and that the statutory list of non-qualifying activities is non-exclusive, so registration questions are inherently fact-driven.

Common questions

If our company's headquarters is in Texas, do we have to register?
The opinion did not give a yes-or-no answer. It said the question is fact-specific and that the AG could not decide the hypothetical (a Texas principal office with no Texas employees and most services performed elsewhere) as a matter of law.

What activities clearly do NOT require registration?
The opinion pointed to the statutory list, which includes holding internal-affairs meetings, maintaining a securities transfer or trustee office, transacting business in interstate commerce, and conducting an isolated transaction completed within 30 days, while noting that list is not exclusive.

Why couldn't the AG just answer the question?
Because, the opinion explained, whether an entity is transacting business is a fact question, and an attorney general opinion does not find facts or resolve factual disputes.

Is this the same as whether a company can be sued in Texas?
No. The opinion noted that the registration requirement is a different question from personal-jurisdiction or diversity-jurisdiction issues, citing Texas Supreme Court authority that the two do not turn on the same analysis.

Background and statutory framework

Section 9.001(a) requires a foreign entity to register before transacting business in Texas (Tex. Bus. Orgs. Code Ann. §§ 9.001-.301, 9.001(a) (Vernon 2008)). The Legislature did not affirmatively define "transacting business," but listed activities that, standing alone, do not constitute it, including internal-affairs meetings, maintaining a securities transfer or trustee office, transacting business in interstate commerce, and an isolated 30-day transaction (id. § 9.251), and made that list non-exclusive (id. § 9.252). A "foreign entity" is one formed under and governed by the law of another jurisdiction (id. §§ 1.002(28), 1.105).

The opinion explained that whether a foreign entity transacts business is a fact question turning on the entirety of its activity (Altheimer & Baer, Inc. v. Vergal Bourland Home Appliances, 369 S.W.2d 478, 482 (Tex. App.-Fort Worth 1963, writ ref'd n.r.e.); United States v. Scophony Corp., 333 U.S. 795, 819 (1948) (Frankfurter, J., concurring); Lawrence Indus., Inc. v. Sharp, 890 S.W.2d 886, 888 (Tex. App.-Austin 1994, writ denied)), that the limited hypothetical facts did not even reveal whether the Texas activity was exempt interstate commerce (id. § 9.251(9)), and that the AG does not find facts in the opinion process (Tex. Att'y Gen. Op. No. GA-0643 (2008) at 7 n.4). It distinguished the registration requirement from federal diversity-jurisdiction and long-arm questions (28 U.S.C.A. § 1332(c)(1) (West 2006); O'Brien v. Lanpar Co., 399 S.W.2d 340, 343 (Tex. 1966); Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 n.5 (Tex. 2009)).

Citations

Statutes:

• Tex. Bus. Orgs. Code Ann. §§ 9.001-.301, 9.001(a), 9.251, 9.251(9), 9.252, 1.002(28), 1.105 (Vernon 2008)
• 28 U.S.C.A. § 1332(c)(1) (West 2006)

Cases:

• Altheimer & Baer, Inc. v. Vergal Bourland Home Appliances, 369 S.W.2d 478 (Tex. App.-Fort Worth 1963, writ ref'd n.r.e.)
• United States v. Scophony Corp., 333 U.S. 795 (1948)
• Lawrence Indus., Inc. v. Sharp, 890 S.W.2d 886 (Tex. App.-Austin 1994, writ denied)
• O'Brien v. Lanpar Co., 399 S.W.2d 340 (Tex. 1966)
• Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333 (Tex. 2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0726
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0726.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

July 9, 2009

The Honorable Hope Andrade
Texas Secretary of State
Post Office Box 13697
Austin, Texas 78711-3697

Opinion No. GA-0726

Re: Circumstances under which a foreign business entity is required to register with the Secretary of State (RQ-0778-GA)

Dear Secretary Andrade:

You ask whether a foreign business entity is "considered to be transacting business in Texas" under specific circumstances such that it would be required to register with the Secretary of State's office under chapter 9 of the Business Organizations Code.[1] TEX. BUS. ORGS. CODE ANN. §§ 9.001-.301 (Vernon 2008). Section 9.001 provides that "[t]o transact business in this state, a foreign entity must register under this chapter ...." Id. § 9.001(a). The Legislature has not affirmatively defined what it means to be transacting business in this state, but it has articulated a list of "activities that [standing alone] do not constitute transaction of business in this state." Id. § 9.251 (emphasis added). Among other activities, that list specifically includes:

(2) holding a meeting of the entity's managerial officials, owners, or members or carrying on another activity concerning the entity's internal affairs;

...

(4) maintaining an office or agency for:

(A) transferring, exchanging, or registering securities the entity issues; or

(B) appointing or maintaining a trustee or depositary related to the entity's securities;

...

(9) transacting business in interstate commerce;

(10) conducting an isolated transaction that:

(A) is completed within a period of 30 days; and

(B) is not in the course of a number of repeated, similar transactions;

...

Id. Furthermore, the Legislature has explained that this list "is not exclusive of activities that do not constitute transacting business in this state" for purposes of registering with the Secretary of State. Id. at § 9.252. Beyond this non-exhaustive list, however, the Legislature has not defined the phrase "transaction of business in this state" for purposes of the foreign entity registration requirement.

You explain that "[i]n order to facilitate compliance" with the registration requirement, your "office notifies foreign entities that are not registered with" your office "of the filing requirements." Request Letter at 1. In response to these notifications, some "entities have responded that they are not transacting business in Texas even though they maintain some presence" here. Id. You therefore seek clarification about the following circumstances:

1. Is a foreign business entity, which maintains no employees in Texas and performs the majority of its services outside of Texas, considered to be transacting business in Texas for purposes of registering with the secretary of state's office when its principal office or principal place of business is located in Texas?

2. Is a foreign business entity, which maintains no employees in Texas and performs most of its services outside of Texas, considered to be transacting business in Texas for purposes of registering with the secretary of state's office when one or more of its directors/officers/managers is located in Texas?

3. Is a foreign business entity that is a holding company transacting business for purposes of registering with the secretary of state when its principal place of business is located in Texas and the entity manages its subsidiaries from inside Texas?

Id.

You ask us to decide as a matter of law whether in these circumstances an entity transacts business in this state under section 9.001 of the Business Organizations Code. See id. Whether a given foreign entity is transacting business in this state, and is thereby required to register with the Secretary of State's office, is a fact question that will depend on the specific circumstances of that entity's business in Texas. See Altheimer & Baer, Inc. v. Vergal Bourland Home Appliances, 369 S.W.2d 478, 482 (Tex. App.-Fort Worth 1963, writ ref'd n.r.e.) ("In each case the transaction involved must be considered in its entirety."); see also United States v. Scophony Corp., 333 U.S. 795, 819 (1948) (J. Frankfurter, concurring) ("Whether a corporation 'transacts business' in a particular district [for purposes of the Clayton Act] is a question of fact."); Lawrence Indus., Inc. v. Sharp, 890 S.W.2d 886, 888 (Tex. App.-Austin 1994, writ denied) ("[W]hether a company is 'doing business' in a state [and is thereby subject to franchise tax] is inherently a factual inquiry.").

Thus, facts in addition to those you posit are relevant to the decision as to whether a foreign entity is required to register with the Secretary of State's office.[3] For example, you explain in questions one and two that the hypothetical foreign business entity performs the "majority of its services" or "most of its services" outside of Texas. Request Letter at 1. Based on this limited information, it is impossible for this office to even determine whether those services performed in Texas are interstate commerce, such that an exemption to the registration requirement might apply. See TEX. BUS. ORGS. CODE ANN. § 9.251(9) (Vernon 2008) (transacting business in interstate commerce does not constitute transacting business in this state). A thorough analysis of the specific facts surrounding each foreign entity is necessary to determine whether that entity is transacting business in Texas. We cannot find and resolve questions of fact in an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0643 (2008) at 7 n.4. Thus, we cannot determine whether the circumstances described in your questions constitute the transaction of business in this state as a matter of law.

SUMMARY

Whether a given foreign entity is transacting business in this state, and is thereby required to register with the Secretary of State's office under section 9.001 of the Business Organizations Code, is a fact question that will depend on the specific circumstances of that entity's business in Texas. Because this office does not find facts or resolve factual disputes in the opinion process, we cannot determine whether the scenarios you propose constitute transacting business in this state as a matter of law for purposes of the foreign entity registration requirement.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: A "foreign entity" is defined as "an organization formed under, and the internal affairs of which are governed by, the laws of a jurisdiction other than this state." TEX. BUS. ORGS. CODE ANN. § 1.002(28) (Vernon 2008). "[T]he internal affairs of an entity include: (1) the rights, powers, and duties of its governing authority, governing persons, officers, owners, and members; and (2) matters relating to its membership or ownership interests." Id. § 1.105.]

[Footnote 3: You cite three cases in support of your argument that the factual scenarios you propose involve the transaction of business in Texas. See Request Letter at 2, nn.3-5. However, these cases do not address Texas foreign entity filing requirements but instead address the federal court diversity jurisdiction statute, which states that a corporation is "deemed to be a citizen of ... the State where it has its principal place of business." 28 U.S.C.A. § 1332(c)(1) (West 2006). The Texas Supreme Court has recognized that such jurisdictional issues are separate from and raise different issues than the registration requirements for foreign entities. See O'Brien v. Lanpar Co., 399 S.W.2d 340, 343 (Tex. 1966) (noting that the foreign entity registration requirements relate "to the general intrastate regulation of corporations. This is a different problem from that of a state's power to assert jurisdiction over a nonresident corporation arising out of and limited to its contacts in the forum state."); see also Retamco Operating, Inc. v. Rep. Drilling, Co., 278 S.W.3d 333, 338 n.5 (Tex. 2009) (noting that the foreign entity registration requirements "do not limit the scope of the Texas long-arm statute.").]