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Understanding the nuances of the Form 401-A is crucial for any entity operating within Texas, whether it's a business starting its journey or an established organization navigating through its corporate responsibilities. This form plays a pivotal role in solidifying the relationship between an entity and its registered agent - a mandatory appointment that serves as a bridge for legal and official communications within the state. The designation of a registered agent is not just a formality but a compliance requirement that ensures an entity can be reliably reached through a known address for the service of process, legal notices, or any significant demand. The Form 401-A, developed by the secretary of state, captures the consent and acceptance of the appointed registered agent, whether an individual or an organization other than the one being represented, thus affirming their readiness to undertake this critical role. It's a testament to their agreement to act as the primary point of contact for the entity they represent, a role accompanied by responsibilities such as receiving legal documents and forwarding them to the entity. This document is also a safeguard against fraudulent appointments, requiring consent to be documented explicitly, and serves as a record in case of changes or resignations. Additionally, the mechanisms for rejecting an unwanted appointment or for an entity to update its registered agent details underline the dynamic nature of business operations, emphasizing the importance of keeping such information current and accurate. Delve into the specifics of Form 401-A to ensure your entity stays compliant and well-represented in the Lone Star State.

Preview - 401 A Form

Form 401-A—General Information

Acceptance of Appointment and Consent to Serve as Registered Agent

The attached form is promulgated by the secretary of state and may be used to evidence the acceptance and consent of a person appointed as the registered agent of an entity. This form and the information provided are not substitutes for the advice and services of an attorney.

Commentary

A domestic filing entity and a foreign filing entity registered to do business in Texas are required to continuously maintain a registered agent and a registered office address in Texas. A registered agent must be: 1) an individual resident of Texas; or 2) an organization, other than the organization to be represented, that is registered or authorized to do business in Texas. The registered office address must be located at a street address where service of process may be personally served on the entity’s registered agent during normal business hours. Although the registered office is not required to be the entity’s principal place of business, the registered office address may not be solely the address of a company that provides mailbox services or telephone answering service (BOC § 5.201).

House Bill 1787, effective January 1, 2010, amended subchapter E of chapter 5 of the Texas Business Organizations Code (BOC) to establish the requirement that a person appointed or named as an entity’s registered agent must have consented, in a written or electronic form, to serve in that capacity.

Consent: The appointment of a person as registered agent by an organizer or managerial official of an entity is an affirmation by the organizer or managerial official that the person has consented to serve in the capacity of registered agent. In addition, before the sale, acquisition, or transfer of a majority-in- interest or majority interest of the outstanding ownership or membership interests of a represented entity, the governing authority of the entity must verify whether the person named as the registered agent of the entity prior to the sale, acquisition, or transfer has consented to continue to serve the represented entity in that capacity.

Form: Section 5.201(b) requires that a person who is to be named as the registered agent of a represented entity in a registered agent filing must consent, in a written or electronic form, to serve in that capacity. A registered agent filing is defined by section 5.200(1) and includes any filing instrument that designates or appoints a registered agent or that effects a change or correction to the registered agent such as a certificate of formation, certificate of amendment, or statement of change of registered agent.

Section 5.201(b) also requires the secretary of state to develop the form of the consent. The consent of a registered agent need not be on a prescribed form or contain all the statements found on the attached promulgated form; however, a written or electronic consent to serve as registered agent should contain:

a.the name of the represented entity;

b.an express statement that the person designated consents to serve as the entity’s registered agent;

c.the name of the person designated as registered agent;

d.the signature of the registered agent; and

e.the date of execution.

Execution of Consent: If the person named as registered agent is an individual, the individual designated must sign the consent. If the person named as registered agent is not an individual, the consent would be signed by an individual authorized to accept the appointment as registered agent on behalf of the organization named as registered agent.

Form 401-A

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Filing Not Required: The signed consent of the registered agent should be sent to and retained by the represented entity.

Unless otherwise required by the provisions of the BOC or other law applicable to the represented entity, the consent of the registered agent is not required to be submitted or included as part of a registered agent filing. However, a registered agent filing that includes the written consent of the person designated will be retained in the records of the secretary of state as part of the document.

Permissive Filing: A consent of registered agent that is submitted separately for purposes of filing with the secretary of state will be indexed in the filing history of the represented entity if the consent is accompanied by the fee imposed under chapter 4 of the BOC for the filing of an instrument for which a fee is not expressly provided. The fee is $15, unless the consent is submitted on behalf of a nonprofit corporation or cooperative association. The fee for a nonprofit corporation or cooperative association is $5. The consent may be mailed to P.O. Box 13697, Austin, Texas 78711-3697; faxed to (512) 463- 5709; or delivered to the James Earl Rudder Office Building, 1019 Brazos, Austin, Texas 78701.

Rejection of Appointment: A person who has been named as the registered agent of an entity without the person’s consent is not required to perform the duties of a registered agent (BOC § 5.206). In addition, a person who has been designated as a registered agent without the person’s consent may file a rejection of the appointment with the secretary of state. On filing, the rejection of appointment will terminate the appointment of the registered agent and registered office. Failure to appoint or maintain a registered agent and registered office may result in the involuntary termination of a domestic filing entity or the revocation of a foreign filing entity’s registration to transact business in Texas.

Changes by a Registered Agent: A registered agent that changes its name or that changes its address as the address of the entity’s registered office should notify the represented entity of the change and file a statement of change with the secretary of state. (Form 408)

A person may resign as the registered agent of an entity by providing notice to the represented entity and the secretary of state. Notice to the secretary of state must be given before the 11th day after the date notice is given to the entity. On compliance with the notice requirements, the appointment of the registered agent and registered office terminate. However, this termination is not effective until the 31st day after the date the secretary of state receives notice (BOC § 5.204(d)).

Changes by a Represented Entity: The failure of a domestic or foreign filing entity to maintain a registered agent and registered office address in Texas may result in the involuntary termination of the domestic filing entity or in the revocation of the foreign entity’s registration. Therefore, it is important that an entity file a statement of change of registered agent and/or registered office (Form 401) with the secretary of state to appoint a new registered agent when the person named as registered agent will no longer serve in that capacity or when the registered office address of the entity changes.

False or Fraudulent Filings: Please note that the liabilities and penalties imposed by sections 4.007 and 4.008 of the BOC apply with respect to a false statement in a filing instrument that designates and appoints a person as the registered agent of an entity without that person’s consent (BOC § 5.207).

A person commits an offense under section 4.008 of the BOC if the person signs or directs the filing of a filing instrument the person knows is materially false with the intent that the instrument be delivered to the secretary of state for filing. The offense is a Class A misdemeanor unless the person’s intent is to harm or defraud another, in which case the offense is a state jail felony.

Revised 12/09

Form 401-A

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Form 401-A (Revised 12/09)

Acceptance of Appointment

and

Consent to Serve as Registered Agent §5.201(b) Business Organizations Code

The following form may be used when the person designated as registered agent in a registered agent filing is an individual.

Acceptance of Appointment and Consent to Serve as Registered Agent

I acknowledge, accept and consent to my designation or appointment as registered agent in Texas for

Name of represented entity

I am a resident of the state and understand that it will be my responsibility to receive any process, notice, or demand that is served on me as the registered agent of the represented entity; to forward such to the represented entity; and to immediately notify the represented entity and submit a statement of resignation to the Secretary of State if I resign.

x:

Signature of registered agent

Printed name of registered agent

Date (mm/dd/yyyy)

The following form may be used when the person designated as registered agent in a registered agent filing is an organization.

Acceptance of Appointment and Consent to Serve as Registered Agent

I am authorized to act on behalf of

Name of organization designated as registered agent

The organization is registered or otherwise authorized to do business in Texas. The organization acknowledges, accepts and consents to its appointment or designation as registered agent in Texas for:

Name of represented entity

The organization takes responsibility to receive any process, notice, or demand that is served on the organization as the registered agent of the represented entity; to forward such to the represented entity; and to immediately notify the represented entity and submit a statement of resignation to the Secretary of State if the organization resigns.

x:

Signature of person authorized to act on behalf of organization

Printed name of authorized person

Date (mm/dd/yyyy)

Form 401-A

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Download 401 A PDF Form

Form Data

Fact Name Detail
Purpose of Form 401-A Used for the acceptance and consent of a person appointed as the registered agent of an entity.
Requirement for Entities Both domestic and foreign filing entities in Texas must maintain a registered agent and office address.
Eligibility for Registered Agent Must be an individual resident of Texas or an authorized organization, not the entity represented.
Registered Office Address Must be a street address in Texas where process can be served, not just a mailbox or answering service.
Legal Basis Governed by the Texas Business Organizations Code (BOC), specifically section 5.201.
Consent Requirement Designated registered agents must consent, in writing or electronically, to serve.
Filing Not Required The signed consent must be retained by the entity but is not required to be filed with the state.
Permissive Filing Consent may be filed with the Secretary of State for indexing purposes, accompanied by the applicable fee.
Rejection and Resignation Process A named agent without consent can reject the appointment; an agent resigning must notify the state and entity.

Instructions on Utilizing 401 A

Filling out Form 401-A involves a detailed process of documenting the consent of the appointed registered agent, whether an individual or an organization, to receive legal and tax documents on behalf of a business entity in Texas. By completing this form, the registered agent acknowledges their responsible roles such as accepting legal and official government communications. It's imperative that the form is filled out accurately to ensure all parties understand their obligations and to maintain compliance with Texas law. Here's a step-by-step guide on how to complete Form 401-A:

  1. Identify the correct form version: Ensure you're using the current version of Form 401-A (Revised 12/09).
  2. Determine the type of registered agent: Decide if the registered agent is an individual or an organization. There are different sections in the form for each.
  3. If an individual:
    • Insert the name of the represented entity in the provided space.
    • Confirm that the individual is a resident of Texas and ready to accept the responsibilities laid out.
    • The individual designated as the registered agent must sign the form in the space marked 'x'.
    • Print the name of the registered agent next to the signature.
    • Fill in the date of execution in the format mm/dd/yyyy.
  4. If an organization:
    • Write the name of the organization designated as the registered agent.
    • Verify and confirm that the organization is either registered or authorized to do business in Texas.
    • Provide the name of the represented entity for which the organization will act as registered agent.
    • The form must be signed by a person authorized to act on behalf of the organization.
    • Print the name of the authorized person next to their signature.
    • Input the date of execution following the mm/dd/yyyy format.
  5. Review for accuracy: Double-check all entered information for completeness and accuracy to prevent any issues with acceptance of the form.
  6. Submit accordingly: Remember, the signed consent should be retained by the represented entity rather than submitted to the secretary of state, unless part of a specific filing that requires it.

After submitting or retaining the Consent of Registered Agent form, it's vital to keep a copy for your records. Should any changes occur in the agent's status or information, timely updates are crucial. The form serves not just as a means of compliance, but as an active acknowledgment and assumption of the duties that come with being a registered agent. Operators of businesses and appointed agents alike should fully understand these duties and ensure that they are capable of and committed to fulfilling them.

Obtain Answers on 401 A

Frequently Asked Questions about the Form 401-A

  1. What is Form 401-A and who should use it?

    Form 401-A is a document used to formally accept the appointment and consent to serve as a registered agent for either a domestic or foreign filing entity in Texas. Individuals or organizations appointed as registered agents for entities are the primary users of this form. It evidences consent to accept legal documents on behalf of the represented entity and to fulfill all responsibilities associated with the role of a registered agent.

  2. Is it mandatory for the consent of a registered agent to be filed with the secretary of state?

    No, the signed consent of the registered agent must be retained by the represented entity, and it's not required to be filed with the secretary of state as part of a registered agent filing. However, if the consent is included in a registered agent filing or submitted separately for the purpose of filing, it will be retained and indexed in the filing history of the represented entity.

  3. What happens if a person is named as a registered agent without their consent?

    If an individual or organization is named as a registered agent without consent, they are not obligated to perform the duties of a registered agent. They have the option to file a rejection of the appointment with the secretary of state, which will terminate the appointment and the association with the registered office address. It's crucial to note that failing to appoint or maintain a registered agent and registered office may lead to the involuntary termination of a domestic entity or the revocation of a foreign entity's registration to conduct business in Texas.

  4. Can a registered agent resign or change their information?

    Yes, a registered agent can resign or change their information. To resign, the agent must notify both the represented entity and the secretary of state. The appointment officially terminates on the 31st day after the secretary of state receives this notice. For changes in name or address, the registered agent should inform the entity they represent and file a statement of change with the secretary of state. Entities are also advised to file a statement of change of registered agent and/or registered office with the secretary of state to appoint a new registered agent or change the registered office address.

Common mistakes

When it comes to filling out the Form 401-A, there are several common pitfalls that can trip people up. This form is crucial for designating or accepting the role of a registered agent for entities in Texas. A registered agent is vital as they are responsible for receiving legal documents on behalf of the entity. Here's a look at some of the mistakes people often make:

  1. Not verifying the consent of the designated registered agent before submission. The form is an affirmation that the appointed individual or organization has consented to act as the registered agent, which is a step that should not be overlooked.

  2. Submitting the form with incomplete information, such as leaving out the name of the represented entity or the name of the person or organization designated as the registered agent. Every field is important and requires attention.

  3. Failing to sign the form where required. If the designated registered agent is an individual, that individual must sign the form. If an organization is named, an authorized individual must sign on the organization's behalf.

  4. Using an address that doesn't allow for in-person service of process. The registered office address must be a physical location in Texas where documents can be legally served during normal business hours.

  5. Assuming the form needs to be filed with the secretary of state's office. While the form needs to be completed and retained, it's not always necessary to submit it unless specifically required by law or for permissive filing.

  6. Overlooking the requirement to update the form when changes occur. If a registered agent changes their name or address, or if the represented entity decides to appoint a new agent, the relevant updates need to be made promptly.

  7. Not understanding the role and responsibilities of a registered agent. Accepting this appointment means agreeing to receive legal documents and notifying the entity of any received communications. It's a role with significant legal implications.

Avoiding these common mistakes can help ensure that the process goes smoothly and that entities remain in compliance with Texas laws regarding registered agents.

Documents used along the form

When navigating the landscape of business filings, the need for various forms and documents becomes apparent. Among them, Form 401-A stands as a crucial element for entities operating within Texas, guiding the acceptance and consent process for an appointed registered agent. However, to ensure compliance and smooth operational transitions, several other forms and documents frequently accompany Form 401-A. Let's delve into a few significant ones that entities might require in their administrative arsenal.

  • Certificate of Formation (Form 201): This foundational document officially brings a business entity into existence under state law. It outlines the entity's name, type, governing structure, and registered agent, among other crucial details.
  • Statement of Change of Registered Agent/Office (Form 401): When an entity needs to update its registered agent or office information, this form facilitates the official change with the secretary of state.
  • Annual Report: Though not a singular form, annual reports are required by many states for entities to maintain an active status. These reports generally update the state on the company’s address, directors, and officers.
  • Statement of Resignation of Registered Agent (Form 408): Used by a registered agent wishing to resign their position, this form notifies the secretary of state and the entity about the resignation.
  • Certificate of Amendment (Form 424): If an entity needs to make changes to its certificate of formation, such as altering its name or purpose, this form is used to officially record those changes.
  • Application for Registration of a Foreign Entity (Form 301): For entities incorporated outside of Texas that wish to operate within the state, this form must be completed to obtain the necessary authorization.
  • Articles of Dissolution (Form 651): When a company decides to legally terminate its existence, the articles of dissolution must be filed with the state to wind up affairs and dissolve the entity officially.
  • Notice of Termination of Registered Agent (Form 409): This form is used by an entity to terminate the appointment of their registered agent, separate from the agent's own resignation.
  • DBA (Doing Business As) Registration: While not a form issued by the secretary of state, a DBA filing with the applicable county clerk's office allows a business to operate under a name different from its legally registered name.

In the intricate world of business compliance, these forms and documents serve as vital instruments for establishing, altering, and maintaining the structured details of a business entity. Each plays a distinct role in the narrative of a business's life, from inception through operations, and potentially to its dissolution. Ensuring proper completion and filing of these documents not only helps in staying compliant with state regulations but also paves the way for smooth operational transitions and adaptations as a business evolves.

Similar forms

  • Certificate of Formation: Similar to Form 401-A, a Certificate of Formation is a document required for the creation of a corporation, limited liability company (LLC), or other formal entity. Both documents are integral to the legal establishment of an entity in Texas. The Certificate of Formation establishes the entity's existence, while Form 401-A is used to formally acknowledge and accept the role of a registered agent for the entity, ensuring compliance with state requirements for maintaining a designated agent and office for service of process.

  • Certificate of Amendment: This document alters information contained in the original Certificate of Formation or similar organizing document. Much like Form 401-A, which can be used to evidence the acceptance of appointment by a new registered agent, a Certificate of Amendment may formally change the named registered agent or adjust the official address of the registered office, mirroring the consent and acceptance process of changing agents.

  • Statement of Change of Registered Agent/Office: Directly analogous in purpose to Form 401-A, this document facilitates the official change of either the registered agent or the address of the registered office for a business entity. While Form 401-A provides the agent's consent to accept the role, a Statement of Change of Registered Agent or Office is the mechanism through which such a change is recorded with the state, highlighting the intertwined nature of these administrative processes.

  • Statement of Resignation of Registered Agent: This form is used when a registered agent wishes to resign from their position. Conversely, Form 401-A is used when an agent is first accepting their role. Both documents underscore the importance of the registered agent's consent and willingness to serve, whether entering or exiting the role, highlighting the voluntary aspect of this responsibility under Texas law.

  • Application for Registration of a Foreign Entity: Similar to Form 401-A, which is used by both domestic and foreign entities to confirm the appointment of a Texas-based registered agent, the Application for Registration of a Foreign Entity allows an out-of-state business to operate in Texas. Both documents are crucial for compliance and ensuring that entities have a designated representative within the state.

  • Consent of Registered Office or Agent: This document is a close relative to Form 401-A, specifically in its purpose of evidencing consent to serve as a registered agent. Both documents underscore the necessity of an agent's or office's explicit agreement to perform the requisite duties, emphasizing the legal requirement for informed and voluntary consent in these roles.

  • Articles of Incorporation: For corporations, Articles of Incorporation serve a foundational role similar to the Certificate of Formation and require the designation of a registered agent, akin to the purpose of Form 401-A. While the Articles of Incorporation primarily establish the corporation with the state, including details about shares and incorporators, appointing a registered agent is also crucial, reinforcing the necessity of an agent's consent as evidenced by Form 401-A.

Dos and Don'ts

When filling out the 401 A form for Acceptance of Appointment and Consent to Serve as Registered Agent, it's crucial to follow certain dos and don'ts to ensure accuracy and compliance with Texas law. Here are the guidelines:

Things You Should Do:

  • Ensure the individual or organization named as the registered agent is eligible under Texas law, meaning an individual must be a resident of Texas or an organization must be authorized to do business in Texas.

  • Include an express statement from the designated registered agent that they consent to serve in this capacity. This acknowledgment is crucial for validating the form.

  • Make sure the form is signed by the designated registered agent if they are an individual, or by someone authorized to accept the appointment on behalf of an organization.

  • Retain a copy of the signed consent for the entity's records. While it's not mandatory to submit this consent with the registered agent filing, having it on file is good practice.

Things You Shouldn't Do:

  • Do not leave any required fields on the form blank, including the name of the registered agent, the name of the represented entity, and the signature with the date of execution.

  • Avoid submitting the form without ensuring that the registered agent has officially consented, in written or electronic form, to serve as the registered agent.

  • Do not use the address of a mailbox service or telephone answering service as the registered office address. The law requires a physical street address in Texas where service of process can be personally served.

  • Do not forget to update the form if there are any changes in the registered agent's name or address. It's essential to keep this information current to avoid any potential issues with service of process.

Misconceptions

Many misconceptions surround the Form 401-A, from its purpose to the obligations it imposes. Let's clarify the top ten misconceptions:

  • Misconception 1: Form 401-A must be filed with the Secretary of State to be effective. Truth: The form, once signed, should be retained by the entity and is not required to be filed unless specifically requested.
  • Misconception 2: Any individual or organization can serve as a registered agent. Truth: Only a Texas resident or an organization authorized to do business in Texas can serve as a registered agent.
  • Misconception 3: The registered office address can be a P.O. Box. Truth: The address must be a physical location in Texas where the registered agent can personally receive service of process.
  • Misconception 4: Appointing a registered agent is optional for Texas entities. Truth: Texas law requires all entities to continuously maintain a registered agent and office.
  • Misconception 5: The registered agent's consent is not necessary for their appointment. Truth: A person or organization must consent in writing or electronically to serve as a registered agent.
  • Misconception 6: The form is complicated and requires legal expertise to complete. Truth: The form is straightforward, requiring basic information about the agent and their consent to serve.
  • Misconception 7: A registered agent can resign at any time without notice. Truth: The agent must notify the represented entity and the Secretary of State and cannot officially resign until 31 days after the notice is filed.
  • Misconception 8: Changing the registered agent requires a complex process. Truth: To change agents, an entity simply needs to file the appropriate form with the Secretary of State, including the new agent's consent.
  • Misconception 9: The registered agent's role is purely ceremonial. Truth: The agent plays a crucial role in legal processes, being the official recipient for service of process and other official notices.
  • Misconception 10: There are no penalties for not maintaining a registered agent. Truth: Failure to maintain a registered agent and office could lead to the termination or revocation of the entity's registration to transact business in Texas.

Understanding the purpose and requirements of Form 401-A ensures that your entity remains in good standing and compliant with Texas law.

Key takeaways

When dealing with the 401-A form, it's crucial to grasp its purpose and requirements to ensure compliance and smooth operations for entities in Texas. Here are essential takeaways to guide you through filling out and using this form:

  • Form 401-A is designed for the acceptance and consent by a person or organization appointed as a registered agent for an entity doing business in Texas.
  • A registered agent is essential for both domestic and foreign entities in Texas as they are responsible for receiving legal documents and notices on behalf of the entity.
  • The registered agent must either be an individual resident of Texas or an organization authorized to do business in Texas, excluding the entity itself.
  • The registered office address, where the registered agent can be reached, must be a physical location in Texas and not just a mailbox service or telephone answering service.
  • Consent to serve as a registered agent must be confirmed in writing or electronically, ensuring the person or organization is willing and informed about their responsibilities.
  • While the form itself is not always required to be submitted to the Texas Secretary of State, it should be completed and kept by the entity for their records and compliance.
  • A nominal fee applies if the consent form is filed with the Secretary of State, with different amounts for non-profit corporations or cooperative associations.
  • If a registered agent is appointed without their consent, they have the right to reject the appointment to avoid unwanted legal and administrative responsibilities.
  • Registered agents or entities must notify the Texas Secretary of State of any changes in the registered agent's information or if they wish to resign from their position.
  • Entities must ensure they continuously maintain a registered agent and office address in Texas, as failure to do so may lead to involuntary termination or revocation of registration to conduct business in the state.
  • Misrepresentations or fraudulent designations of a registered agent can lead to severe penalties, including misdemeanors or felonies, emphasizing the need for accuracy and honesty in filing.

Understanding these key points about the 401-A form helps in maintaining the legal and operational integrity of entities in Texas, ensuring they meet state requirements and avoid potential legal issues.

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