Public Interest in Disclosure
The public disclosure associated with the identity of the true party in interest and the location where the party may be served with process if suit is filed is called a DBA. This law was created in order to highlight the fact that it is in the public interest to be able to ascertain whom to sue and where exactly the service of process can be performed.
The potential plaintiffs will be able to benefit from the DBA filing requirements. Each and every day a particular number of suits are filed against assumed-name defendants. You need to think about a hypothetical real estate company, “Mary Joe’s Homes” (“homes”). A Homes`s attorney is able to dismiss a particular suit that is filed against Northside Chevrolet. The assumed name is usually associated with a corporation or LLC that has a liability barrier and it is conducting business under the name Homes. At this point, the plaintiff should perform a research and refile the case against the true party behind the DBA. It is not mandatory for the legal entity to have its business headquarters in that country, requesting an out-of-county service of process, another delay and expense. However, at this moment, a particular number of plaintiffs will certainly give up.
Law applicable to assumed names
An individual or company may possess as many DBAs as they desire, regardless if we are talking about a state or county level. A period of ten years can be covered with a single filing. A filing of a particular form may be used to terminate or abandon a DBA. You should verity the county clerk`s website within the county where you have your main headquarter on in which you are performing your services. You can also visit htt://www.sos.state.tx.us/corp/forms/503 and fill Form 503 if you want a state-level filing. The person or company must mention the counties where an assumed name will be used in this form. You need to check the box for “All” in case the entity will potentially use its assumed name in all counties in Texas.
A notarized DBA filing for people, companies and others is required by the Texas Business and Commerce Code chapter 71 under the next situations:
It is mandatory for the filer to state the psychical address of the location of his business. In case the county where the company has its main headquarter is different from the proposed county of business, than the person must file a DBA in both counties.
Let`s imagine that you have a California LLC and wish to conduct business under an assumed name in Miami, should you file an assumed name certificate in both counties? The answer is YES. Both the domestic and foreign entities within the scope of your business are included in the statute.
State vs. County Filing of DBAs
After you have formed an LLC, you need to get a DBA. However, where should the filing be performed, at the county clerk`s office or with the secretary of state? The DBA needs to be filed as at both levels, according to the Bus. & Com. Code section 71.103: “The corporation, limited partnership, limited liability partnership, limited liability Company, or foreign filing entity shall file the certificate in the office of the secretary of state and in the office or offices of each county clerk as specified by Subsection (b) or (c).” Even though filing with the Secretary of State is usually neglected by smaller entities who often file just in their local county, you need to consider that the statute says “and” when referring to state and county filings.
The county clerk needs to discover if a proposed DBA is available at the county level. The main thing to consider is that your proposed name should be different or deceptively similar to another entity`s filed assumed name that operates in that county. It is not mandatory to ascertain if a particular name is available, considering the fact that the DBA filing is essentially a notice filing. Simply file Form 503.
There are 254 counties in Texas. It is really important in which county you life in case you are obtaining a county-level assumed name for daily usage and banking purposes? Well, the answer is no. You can file for a DBA from El Paso Country and the bank will still accept it, regardless if your are operating in Houston. You should also consider the fact that there is no central data base connecting the assumed name records of Texas` 254 counties at the present moment. You might want to get your company`s DBA far from its true base of operations and in a county whose DBA database hasn`t entered the online world yet, if we are talking from an asset protection/anonymity point of view.
Trusts and DBAs
You need to file a DBA in case a trust is doing business.
A Series LLC Doing Business through One of Its Series
Considering the fact that series are viewed as sub-companies, they have all the rights to behave in this manner. An individual series has the power to sue and be sued; to contract; and to hold title to real and personal property, according to Business Organizations Code section 101.605.However, the series have to function or hold title under its own name so as to fulfill these functions at the series level. This in turn demands that the series obtain an assumed name certificate. Are there any causes for this situation? Yes there are! First of all, technically speaking, the series is not an independent legal entity; and since it is running under a name other than the name stated in the company`s COD, is should possess a DBA on file. Additionally, the file of the DBA should be conducted both at the state and county levels.
The name of the entity conducting business as an individual series will contain the basic assumed name for a series LLC. As an example: “ABC LLC conducting business as ABD LLC-Series A” section 71.103 will need an assumed name filing both at the office of the Secretary of State and the county where Series A does business.