Honorable John L. Hill OpinionNo. C-750

Secretary of State State Capitol Building Austin,Texas Re: Authorityof Secretary of State to file an Application for Renewal of Certificate of Authority of a dissolvedforeign corporationand related Dear Mr. Hill: question

In your opinion requestyou have asked whether your office has the authority to file an “Applicationfor Renewal of Certificate of Authority”which has been submittedby a dissolved foreign corporation. The submitted application Indicates on Its face that the corDoration is no longer engaged **In** normal business operations,has no authorized capital stock, stockholders or outstandingcapital stock and has no stated capital. Foreign corporations seeking to renew a certificate of authoritymust complywith Article 8.05 of the Texas Business corporationAct which requires, among other things, that the applying corporation state the purpose or purposes which it proposes to pursue In transacting business in Texas, the number of authorized shareswhich the corporationmay Issue, the number of outstanding capital shares and the stated capital of the aorporatlon. Clearly, the application submittedby the corporation d~oes not fulfill these requirements. We accordingly hold that your office does not have authority to file an Application for Renewal of Certificateof Authority which does not comply with the provisions of Article 8.05, such as the one submittedby the dissolved foreign corporation in question.

You also ask whether the dlssolved corporation is transactingbusiness in Texas under the facts submitted with your opinion request. The corporationwas dissolved In its domiciliary state on October 30, 1964, and Its Certificate of Authority in Texaa has recently expired. The corporationhas leased an office, employed four -3609-Honorable John L. Hlll,page 2 (C-750)

persons and obtained a telephone listing for the purposes of defending lawsuitspending against it, prosecuting its claims, and winding up Its affairs. The corporation maintains a sum of cash in Texas in variousdemand accounts or time deposits for the purpose of paylng known and contingent claims. Except for defending lawsuits,prosecuting its claims,paying claims against it and winding up its affairs, the corporation Is not engaging in any activity In Texas. Upon finalwinding up of its affairs, the corporationwill distribute all remaining assets to former shareholders.
Under Section 278 of the General Corporation Law of Delaware, the domiciliary state of the corporation in question, a corporationcontinues to exist for a period of three years after dissolution for the limited purposes of suing,being sued and windingup Its affairs, but not for the purpose of continuing the business for which itwas organized. Article 8.01 of the Texas Business CorporationActprovides that:

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. . . "B.,Without excluding other activities which may not constitute transactingbusiness In the State, a foreign corporation shall not be considered transactingbusiness in this State, for the purpose of this Act, by reason of carrying on In this State any one (1) or more of the followingactivities: "(1) Maintaining or defendingany action or suit or any admlnlstratlveor arbitrationproceedings, or effecting the settlementthereof or the settlementof claims or disputes to which it Is a party.

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. . . “(3) Maintainingbank accounts. I, 1,

. . . . Under the facts submitted,the principal activltles of the corporation in question fallwithin the above quoted exceptions of Article 8.01. Any other activities In which the corporationmay be engaged, as set forth In the submitted facts, aremerely incidentalto the main activitiesand are not of sufficientmoment to -3610-. -

Honorable John L. Hill,page 3 (C-750)

constitute transactingbusiness. We are of the opinion that under the submitted facts the corporation is not transacting ,buslnessin Texas within the provisions of the Texas Business CorporationAct.

SUMMARY
The Secretary of State does not have authority to file an Application for Renewal of Certificate of Authoritywhich does not comply with Article 8.05 of the Texas Business CorporationAct.
Under the facts submitted,the corporation In question is not transacting business In Texas within the ,provlsionsof the Texas Business CorporationAct.

Yours very truly,

WAGGONER CARR Attorney General of Texas

JWF:sh

APPROVED OPINION COMMITTEE

W. V. Geppert, Chairman Roy B. Johnson Mark W. White Milton Richardson Wade Anderson
APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright

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