PART 4. OFFICE OF THE SECRETARY OF STATE
CHAPTER 97. BUSINESS OPPORTUNITY
The Office of the Secretary of State proposes amendments to 1 TAC §§97.1, 97.21 - 97.23, 97.27, 97.28, 97.31, 97.32, 97.41, and 97.42, concerning business opportunities. Non-substantive changes are proposed to clarify the rules, update the mailing address for the Office of the Secretary of State, correct outdated citations, provide the secretary of state's website, and remove references to specific required forms by name.
Additionally, §97.32 and §97.42 are amended to provide for cancellation of a trust account or letter of credit, respectively two years after the registrant formally terminates the registration or upon approval from the secretary of state, rather than requiring both two years passing and secretary of state approval.
FISCAL NOTE
Leigh A. Joseph, Attorney in the Business and Public Filings Division of the Office of the Secretary of State, has determined that for each year of the first five years that the section is in effect there will be no fiscal implications to state or local governments as a result of enforcing or administering the amendment as proposed.
PUBLIC BENEFIT AND SMALL BUSINESS COST NOTE
Ms. Joseph has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing or administering the section as proposed will be to view the rule as corrected. There will be no effect on small or micro businesses. There is no anticipated economic cost to persons who are required to comply with the proposed rule.
COMMENTS
Comments on the proposed amendment may be submitted in writing to: Leigh A. Joseph, Office of the Secretary of State, Corporations Section, P.O. Box 13697, Austin, Texas 78711-3697. Comments must be received not later than 12 noon, August 7, 2009.
SUBCHAPTER A. BUSINESS OPPORTUNITY REGISTRATION
1 TAC §97.1
STATUTORY AUTHORITY
This amendment is proposed under the authority of the Administrative
Procedure Act, Chapter 2001, Government Code and the Business Opportunity
Act, Chapter 51, Business and Commerce Code, which provides for the
secretary of state to prescribe forms, set fees, and adopt rules to
administer and enforce Chapter 51.
No other code or statute is affected by this rule.
§97.1.Registration of Business Opportunities.
The materials required to be filed with the
secretary of state by §51.051, Business and Commerce Code (hereinafter
"Business Opportunity Act") shall be referred to in this title as
the "registration." The secretary of state will not accept a registration
for filing unless, in addition to meeting the requirements of §51.051,
the registration is accompanied by the applicable fee as set forth
in §97.21 of this title (relating to Fees).
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on June 24, 2009.
TRD-200902600
Lorna Wassdorf
Director of Business and Public Filings
Office of the Secretary of State
Earliest possible date of adoption: August 9, 2009
For further information, please call: (512) 463-5562
1 TAC §§97.21 - 97.23, 97.27, 97.28
STATUTORY AUTHORITY
This amendment is proposed under the authority of the Administrative
Procedure Act, Chapter 2001, Government Code and the Business Opportunity
Act, Chapter 51, Business and Commerce Code, which provides for the
secretary of state to prescribe forms, set fees, and adopt rules to
administer and enforce Chapter 51.
No other code or statute is affected by these rules.
§97.21.Fees [
(a) The filing fee for filing a new registration [
(b) The fee for [
(1) a renewal or amended registration;
(2) a notice of exemption pursuant
to §51.003(b)(8), Business Opportunity Act and §97.22 of
this title (relating to Notice of Exemption); and
(3) a voluntary termination pursuant
to §51.251, Business Opportunity Act.
§97.22.Notice of Exemption [
(a) In addition to the information
required by §51.003(b)(8) of the Business Opportunity Act, notice
filed with the secretary of state pursuant to §51.003(b)(8),
must contain:
(1) a statement that the franchisor claims an exemption
under §51.003(b)(8), Business Opportunity Act;
(2) the date the notice is signed;
(3) a statement that the person executing the notice
is authorized to do so; and
(4) the signature of the person executing the notice.
(b) The notice of exemption will be
effective as of the date of receipt by the secretary of state of both
the complete notice of exemption and the filing fee provided in §97.21
of this title (relating to Fees).
§97.23.Voluntary Termination.
(a) A voluntary termination of business
opportunity filed with the secretary of state pursuant to §51.251,
Business Opportunity Act, must contain:
(1) the name of the business opportunity;
(2) the date of registration of the business opportunity
with the secretary of state;
(3) the registration number issued by the secretary of state;
(4) a statement of voluntary termination specifying
the applicable subsection of §51.251, Business Opportunity Act;
(5) the date the statement is signed;
(6) a statement that the person executing the statement
is authorized to do so; and
(7) the signature of the person executing the statement.
(b) The voluntary termination will
be effective as of the date of receipt by the secretary of state of
both the complete voluntary termination statement and the filing fee
provided in §97.21 of this title (relating to Fees).
[Figure: 1 TAC §97.23(c)]
§97.27.[
(a) A disclosure statement filed under §51.051
of the Business Opportunity Act, must be updated annually and whenever
a material change occurs. The list of individuals who sell the business
opportunity for the principal seller must be updated every six months.
(b) A registered seller of a business opportunity
that does not file the updates required by §51.052 [
(c) After an update is 30 days past
the required filing date, the secretary of state shall send a notice
of delinquency to the seller that:
(1) informs the seller of the delinquency;
(2) gives the seller the opportunity to show compliance
with the required filing; and
(3) informs the seller of its right to request a hearing,
present evidence, and be represented by counsel.
(d) If, within 35 days of the date
the notice is mailed, the seller does not respond, file the required
updates, or request a hearing, the seller's registration will be terminated.
Notice of the termination shall be sent to the seller in accordance
with subsection (e) of this section.
(e) The notice described in subsections
(c) and (d) of this section shall be sent to the seller's registered
agent, or, if the seller does not have a registered agent, to the
address shown in the most recent filing with the secretary of state
made by the seller pursuant to the Business Opportunity Act.
§97.28.Forms [
The secretary of state provides forms for required business
opportunity filings. The forms are available on the secretary of state
web site at http://www.sos.state.tx.us/statdoc/statforms.shtml or
may be obtained by writing the Office of the Secretary of State, Statutory
Documents Section, P.O. Box 13550, Austin, Texas 78711. [
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on June 24, 2009.
TRD-200902601
Lorna Wassdorf
Director of Business and Public Filings
Office of the Secretary of State
Earliest possible date of adoption: August 9, 2009
For further information, please call: (512) 463-5562
1 TAC §97.31, §97.32
STATUTORY AUTHORITY
This amendment is proposed under the authority of the Administrative
Procedure Act, Chapter 2001, Government Code and the Business Opportunity
Act, Chapter 51, Business and Commerce Code, which provides for the
secretary of state to prescribe forms, set fees, and adopt rules to
administer and enforce Chapter 51.
No other code or statute is affected by these rules.
§97.31.Requirements of Trust Account.
A trust account established in accordance with §51.101(a)(2)
of the Business Opportunity Act must be established with an entity
that has the power to accept deposits under the law and that is authorized
to transact business in Texas. [
§97.32.Cancellation of Trust Account.
A trust account shall be maintained until the earlier
of: [
(1) approval of the secretary of state
to cancel the trust account; or
(2) two years after the registrant
formally terminates registration.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on June 24, 2009.
TRD-200902602
Lorna Wassdorf
Director of Business and Public Filings
Office of the Secretary of State
Earliest possible date of adoption: August 9, 2009
For further information, please call: (512) 463-5562
1 TAC §97.41, §97.42
STATUTORY AUTHORITY
This amendment is proposed under the authority of the Administrative
Procedure Act, Chapter 2001, Government Code and the Business Opportunity
Act, Chapter 51, Business and Commerce Code, which provides for the
secretary of state to prescribe forms, set fees, and adopt rules to
administer and enforce Chapter 51.
No other code or statute is affected by these rules.
§97.41.Requirements of Irrevocable Letter of Credit.
An irrevocable letter of credit must be obtained from
an entity that has the power to issue letters of credit under the
law and that is authorized to transact business in Texas. [
§97.42.Cancellation of Irrevocable Letter of Credit.
An irrevocable letter of credit established in accordance with §97.41
of this title (relating to Requirements of Irrevocable Letter of Credit)
shall be maintained until the earlier of: [
(1) approval of the secretary
of state to cancel the irrevocable letter of credit; or
(2) two years after the
registrant formally terminates registration.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on June 24, 2009.
TRD-200902603
Lorna Wassdorf
Director of Business and Public Filings
Office of the Secretary of State
Earliest possible date of adoption: August 9, 2009
For further information, please call: (512) 463-5562
The Office of the Secretary of State proposes to reorganize
Chapter 103, concerning membership camping resorts, by proposing the
repeal of 1 TAC §§103.1, 103.2, 103.10 and 103.21 and the
concurrent proposal of new §§103.1 - 103.3. The non-substantive
changes are proposed to update the mailing address for the Office
of the Secretary of State, correct outdated citations, provide the
secretary of state's website as well as citations to the Texas Membership
Camping Resort Act, Chapter 222, Texas Property Code, and remove redundant
and unnecessary repetition of statutory provisions.
FISCAL NOTE
Leigh A. Joseph, Attorney in the Business and Public Filings Division
of the Office of the Secretary of State, has determined that for each
year of the first five years that the proposed repeal and new sections
are in effect there will be no fiscal implications to state or local
governments as a result of enforcing or administering the sections
as proposed.
PUBLIC BENEFIT AND SMALL BUSINESS COST NOTE
Ms. Joseph has determined that for each year of the first five
years the repeal and new sections are in effect the public benefit
anticipated as a result of enforcing or administering the sections
as proposed will be to view the rule as corrected. There will be no
effect on small or micro businesses. There is no anticipated economic
cost to persons who are required to comply with the proposed rules.
COMMENTS
Comments on the proposed repeal and new sections may be submitted
in writing to: Leigh A. Joseph, Office of the Secretary of State,
Corporations Section, P.O. Box 13697, Austin, Texas 78711-3697. Comments
must be received not later than 12 noon, August 7, 2009.
[(a) The acceptance of
documents shall only be upon submission of a complete initial file
and payment of applicable fee.]
[(b) Documents for submission
must follow the format prescribed by the Office of the Secretary of
State.]
[(c) Specifications pertaining
to the prescribed format may be obtained by writing the Business Opportunity
Section, Office of the Secretary of State, P.O. Box 13563, Austin,
Texas 78711-3563.]
SUBCHAPTER B. FEES AND GENERAL INFORMATIONand General Information].
an initial original file] is $195 and is nonrefundable.
a supplemental or an amendment]
filing any of the following is $25 and is nonrefundable: [.]
[(c) File material may be obtained
in either a total or partial file format upon advance payment of the
fees set out in §71.8 of this title (relating to Fees for Copies
of Open Records).]
[(d) The exemption filing under the
Act, §41.004(b)(8), is $25 and is nonrefundable.]
[(e) The voluntary termination filing
under the Act, §41.251, is $25 and is nonrefundable.]
Statement Form].[(a) The Office of the
Secretary of State hereby adopts by reference the form, Exemption
Statement Form. All persons required to register shall use this form
or a document which shall contain the following information: a statement
that the product/package franchisor claims an exemption under Texas
Business and Commerce Code, §41.004(b)(8), the name of the franchisor,
the name under which the franchisor intends to do business, the franchisor's
principal address, the date the document is signed, and the signature
and title of the signer. Copies of the form may be obtained by contacting
the Office of the Secretary of State, Business Opportunities Section,
P.O. Box 13563, Austin, Texas 78711-3563.]
[(b) The exemption statement
will be effective as of the date of receipt in the secretary of state's
office and the receipt of the proper filing fee.]
[(c) Refer to §97.21
of this title (relating to Fees and General Information) for the filing
fee.]
[(a) The Office of the
Secretary of State hereby adopts by reference the form, Voluntary
Termination Statement Form. All persons voluntarily terminating their
registration shall use this form. Copies may be obtained by contacting
the Office of the Secretary of State, Business Opportunities Section,
P.O. Box 13563, Austin, Texas 78711-3563.]
[(b) The voluntary termination
statement will be in effect as of the date of receipt in the Secretary
of State's Office and the receipt of the proper filing fee.]
[(c) Refer to §97.21
of this title (relating to Fees and General Information) for the filing
fee.]
Delinquent] Update Filings; Delinquency and Termination.
§41.052] of the [Texas] Business
Opportunity [Opportunities] Act[
, Texas Business and Commerce Code, §41.001
et seq.,] is delinquent and subject to termination of its registration
under the procedures outlined in this section [§97.28
of this title (relating to Termination Procedure for Failure To File
Required Updates)].
Termination Procedure for Failure To File Required Updates].The
registration of a registered seller of a business opportunity that
is delinquent in any of the update filings referenced in §97.27
of this title (relating to Delinquent Update Filings) may be terminated
by the following procedure.]
[(1) After an update is
30 days past the required filing date, the secretary of state shall
forward a notice of delinquency.]
[(2) The notice will be
sent by certified mail to the seller's registered agent or to the
last known address shown in the most recent filing with the secretary
of state made under the Business Opportunity Act.]
[(3) The notice in paragraph
(1) of this section shall inform the seller of the delinquency and
give such seller the opportunity to show compliance with the required
filing in order to retain its registration. Additionally, the notice
will inform the seller of its right to request a hearing, present
evidence, and be represented by counsel.]
[(4) If, within 35 days
of the date the notice is mailed, the seller does not respond, file
the required updates, or request a hearing, the seller's registration
will be terminated and a letter will be sent by certified mail notifying
said seller of the termination.]
SUBCHAPTER C. TRUST ACCOUNTA registrant who elects
pursuant to the Business Opportunity Act, §41.101, to establish
a trust account shall establish and maintain a trust account in the
amount of no less than $25,000 in the favor of the State of Texas
with a processor (as defined by the Banking Code of 1943, Article
342-102) authorized to transact business in the State of Texas.]
established in accordance with §97.31 of this
title (relating to Requirements of Trust Account) must be maintained
for a period not to exceed two years after registrant has formally
terminated registration and only with the approval of the Office of
the Secretary of State.]
SUBCHAPTER D. IRREVOCABLE LETTER OF CREDITA
registrant who elects pursuant to the Business Opportunity Act, Article
16.14, to establish an irrevocable letter of credit shall establish
and maintain an irrevocable letter of credit in the amount of no less
than $25,000 in the favor of the State of Texas with a processor (as
defined by the Banking Code of 1943, Article 342-102) authorized to
transact business in the State of Texas.]
must be maintained for a period not to exceed two years after registrant has formally
terminated registration and only with the approval of the Office of
the Secretary of State.]
CHAPTER 103. MEMBERSHIP CAMPING RESORTS