The use of one or more assumed names or “DBAs” is an important part of an overall asset protection plan. Why? Because asset protection is, at least in part, about layering of incremental obstacles to a potential plaintiff. The more hurdles a plaintiff and his attorney have to get over in order to get to you and your assets, the better. The objective is to deter, discourage, and deplete a potential plaintiff’s resources. Although assumed name records are publicly available for inspection, sometimes online, this is an additional level of research that—believe or not—some plaintiffs will be too lazy to undertake.
Public Interest in Disclosure
What is the intent of the statute requiring the filing of a DBA? Both simple and practical: public disclosure of the true party in interest and the location at which that party may be served with process if suit is filed. The premise behind the law is that it is in the public interest to be able to ascertain whom to sue and where service of process may be physically achieved.
From a disclosure perspective, DBA filing requirements operate in favor of potential plaintiffs. There is, however, a sense in which they favor defendants. Suits are filed everyday against assumed-name defendants, particularly at the justice court level. Consider a hypothetical auto dealership, “Northside Chevrolet.” If a suit is filed against Northside Chevrolet, it is subject to immediate dismissal upon motion by Northside’s attorney. Why? Because Northside Chevrolet is not a legal entity. It is merely the assumed name of someone else, almost certainly a corporation or LLC with a liability barrier that is doing business under the name Northside. The result is that the plaintiff must now go home, do research, and re-file the case (paying additional fees and costs in the process) against the true principal behind the DBA. The legal entity may not even have its business headquarters in that county, requiring a request for out-of-county service of process, another delay and expense. A certain percentage of plaintiffs will instead give up at this point.
An assumed name is merely a trade name and has no legal existence of its own. Steer Wealth Mgmt., LLC v. Denson, 537 S.W.3d 558 (Tex. App.—Houston [1st Dist.] 2017, no pet. h.).
Law Applicable to Assumed Names
There is no statutory limit on the number of DBAs an individual or company may have, either at the state or county level. A filing is good for 10 years and fees are nominal. A DBA may also be terminated or abandoned by filing a form. Go to the county clerk’s website in the county in which you are headquartered or in which you propose to operate. For state-level filings, go to http://www.sos.state.tx.us/corp/forms/503 and complete Form 503. This form requires an applicant to state the counties in which an assumed name will be used. If the entity will potentially use its assumed name in all counties in Texas, check the box for “All.”
Texas Business & Commerce Code, Title 5, Chapter 71—the “Assumed Business and Professional Name Act”—contains the legal requirements for filing a notarized assumed name certificate for individuals, companies, and others:
§ 71.002. Definitions
(2) “Assumed name” means:
(A) for an individual, [if the enterprise proposes to operate under] a name that does not include the surname of the individual;
(B) for a partnership, [if the enterprise proposes to operate under] a name that does not include the surname or other legal name of each joint venturer or general partner;
(C) for an individual or a partnership, [if the enterprise proposes to operate under] a name, including a surname, that suggests the existence of additional owners by including words such as “Company,” “& Company,” “& Son,” “& Sons,” “& Associates,” “Brothers,” and similar words, but not words that merely describe the business being conducted or the professional service being rendered;
(D) for a limited partnership, [if the enterprise proposes to operate under] a name other than the name stated in its certificate of formation;
(E) for a company, [if the enterprise proposes to operate under] a name used by the company;
(F) for a corporation, [if the enterprise proposes to operate under] a name other than the name stated in its certificate of formation or a comparable document;
(G) for a limited liability partnership, [if the enterprise proposes to operate under] a name other than the name stated in its application filed with the office of the secretary of state or a comparable document; and
(H) for a limited liability company, [if the enterprise proposes to operate under] a name other than the name stated in its certificate of formation or a comparable document including the name of any series of the limited liability company established by its company agreement.
The filer must include the physical address of its place of business. If the proposed county of business is different from the county where the enterprise is headquartered, then a DBA must be filed in both counties.
Suppose you have a Nevada LLC and want to operate under an assumed name in Dallas or Houston, may you file an assumed name certificate in either county (or both) and do so? Absolutely. The statute expressly includes both domestic and foreign entities within its scope.
State Versus County Filing of DBAs
Obtaining a DBA is a logical next step after forming an LLC. But where should the filing occur—at the county clerk’s office or with the secretary of state? Business & Commerce Code Section 71.103(a) was amended in 2019 to eliminate the county-level DBA filing requirement for registered entities (corporations, LLCs, limited partnerships, etc.) that file an assumed name certificate with the Secretary of State. The county-level filing requirement remains for non-registered entities such as general partnerships, joint ventures, and sole proprietors.
It is important to note that this statute addresses only the requirement of a DBA filing. The option for a registered entity such an LLC to file at the county level remains available. Under certain circumstances, from an asset protection perspective, it may in fact be useful for a registered agent to go ahead and obtain a county-level assumed name certificate—regardless of whether it is required or not.
At the county level, the county clerk will want to determine if a proposed DBA is available. The customary standard is that your proposed name must not be the same as or deceptively similar to another entity’s filed assumed name within that county. At the state level, however, the DBA filing is purely a notice filing, meaning that it is not necessary to first ascertain if a certain name is available. Just create a name and file Form 503.
Texas has 254 counties. If you are obtaining a county-level assumed name for banking purposes and everyday usage, does it matter in which county you file? Surprisingly, not much. Even if you are doing business in Houston, a bank will usually accept a DBA from El Paso County for purposes of opening an account and ordering checks in the assumed name. Another noteworthy point: there is currently no central database linking the assumed name records of Texas counties.
Trusts and DBAs
Interestingly, the statute does not mention trusts, which are a common asset protection device. Are these covered by the law? Must a trust file a DBA if the trust is doing business under anything other than its complete formal name? Our view is in the affirmative, even though trusts are technically not stand-alone legal entities, though they often act as such in the real world. A trust likely falls under the term “company,” at least for purposes of this law; and “company” is defined as “a real estate investment trust, a joint-stock company, or any other business, professional, or other association or legal entity that is not incorporated, other than a partnership, limited partnership, limited liability company, limited liability partnership, or foreign filing entity.” But this is actually good news. If one has a land trust and is doing business with it then one should acquire a county-level assumed name and use it.
Joint Ventures and DBAs
A joint venture is usually a partnership that is created to achieve a single purpose, often involving a single property. Can a JV get a DBA? Yes, and it should, particularly if it will be actively engaged in business with third parties. The JV should also utilize the assume name certificate to open a bank account and have checks printed in the JV name. Because a joint venture is not a registered entity, a DBA is available only at the county level.
A Series LLC Doing Business through One of Its Series
What about individual series of a series limited liability company? Series are, in many respects, sub-companies and are largely empowered to behave that way. Business Organizations Code Section 101.605 provides that an individual series has the power (1) to sue and be sued; (2) to contract; and (3) to hold title to real and personal property. In order to fulfill these functions at the series level (rather than at the level of the company at large), the series must operate or hold title under its own name (for example, as “ABC LLC—Series A”) which in turn requires that the series obtain an assumed name certificate. Why is this so? Because the series is not, as a technical matter, an independent legal entity; and since it is operating under a name other than the name stated in the company’s COF, it must have a DBA on file. Moreover, to be fully compliant, the DBA filing must take place both at the county and state levels.
The basic assumed name filing for a series LLC would be in the name of the company doing business as an individual series. For example: “ABC LLC doing business as ABC LLC—Series A.” Section 71.103 would require such an assumed name filing both in the county where Series A does business and also at the office of the Secretary of State.
An Individual Series Doing Business on Its Own
What about filing an assumed name certificate for a specific series—for instance “ABC LLC—Series A DBA Ace Investments?” County clerks have no problem with this formulation and are more than willing to accept your DBA filing fee. However, the Secretary of State would currently reject it with the following notation: “Our records do not show an entity by the name shown on the document which was submitted for filing.” In other words, the Secretary of State is taking a strict stance here, i.e., that the individual series of a series LLC are not in and of themselves separate legal entities. Therefore, in the State’s view, they cannot have assumed names. Since, for asset protection purposes, we would nonetheless prefer to throw a cloak of anonymity over individual series, we must for now be content with series DBA filing at the county level only—unless there is new legislation or the Secretary of State revises its interpretation of the statute. As it turns out, this works sufficiently well for asset protection purposes.
Banks and Series DBAs
As to banking, the importance of having a DBA for Series A, Series B, Series C, and so forth is relevant if one chooses to open a bank account solely and specifically for the use of an individual series. A bank will require an assumed name certificate if “ABC LLC—Series A” wants to open an account in the name of “Ace Investments” and have checks printed that way. Having such a DBA also entitles the series to lawfully print business cards and stationery that read “Ace Investments” with no disclosure that the principal behind the scenes is in fact an individual series of a series LLC.
Title Companies and DBA Requirements
Title companies are also sensitive to DBA issues. Expect that if a company (whether traditional or series) has not filed a required assumed name certificate it will be asked to do so before closing on either the purchase or sale of real property.
As a practical matter, neither banks nor title companies appear to care whether one’s assumed name certificate is issued by the Secretary of State or by the local county clerk, just so long as a filed certificate exists.
Will one go to the penitentiary for failing to file an assumed name? No. Penalties for failing to fully comply with the Assumed Business and Professional Name Act are generally mild:
§ 71.201. Civil Action; Sanction
(a) A person’s failure to comply with this chapter does not impair the validity of any contract or act by the person or prevent the person from defending any action or proceeding in any court of this state, but the person may not maintain in a court of this state an action or proceeding arising out of a contract or act in which an assumed name was used until an original, new, or renewed certificate has been filed as required by this chapter.
(b) In an action or proceeding brought against a person who has not complied with this chapter, the court may award the plaintiff or other party bringing the action or proceeding expenses incurred, including attorney’s fees, in locating and effecting service of process on the defendant.
In a civil suit, then, a violator may need to immediately file an assumed name certificate in order to proceed with the prosecution or defense of a suit. It may also be ordered to pay the costs and fees associated with inconveniencing the other party. These are not heavy sanctions. Note that “failure to register an assumed name does not ‘impair the validity of any contract or act by the person.’ Accordingly, when evidence shows an entity is doing business under another name, it may be held liable under that name without regard to whether it filed an assumed name certificate.” Broemer v. Houston Lawyer Referral Serv. 407 S.W.3d 477, 482 (Tex.App.—Houston [14th Dist.] 2013, no pet.).
There is a criminal penalty for an intentional violation (whatever that may be):
§ 71.202. Criminal Penalty: General Violation
(a) A person commits an offense if the person:
(1) conducts business or renders a professional service in this state under an assumed name; and
(2) intentionally violates this chapter.
(b) An offense under this section is a Class A misdemeanor.
We are unaware of an abundance of prosecutions in this area. Why? As with most criminal offenses, the district attorney must prove criminal intent. It is far more likely that a person or company failing to fully comply inadvertently overlooked the details of the statute. Forged or fraudulent filings, however, are a more serious matter—a third-degree felony. Bus. & Com. Code §71.203.
Entitlement to Exclusive Use of an Assumed Name
The filing of an assumed name certificate does not assure exclusive use of a DBA and is not the equivalent of obtaining a trademark or copyright:
§ 71.157. Effect of Filing
(a) This chapter does not give a registrant a right to use the assumed name in violation of the common or statutory law of unfair competition or unfair trade practices, common law copyright, or similar law.
(b) The filing of a certificate under this chapter does not in itself constitute actual use of the assumed name stated in the certificate for purposes of determining priority of rights.
Even if one obtains a DBA in the local county, there are still 253 other Texas counties (not to mention the Secretary of State’s office) where someone else may lawfully file to use the same or a similar assumed name.
Having said that, the filing of an assumed name will likely, over time, build and increase one’s entitlement to the assumed name as a matter of common law. The name acquires public acceptance and recognition in the area in which it is used. County clerks, of course, aid in this process by declining to issue identical assumed names to rival enterprises within their borders. A DBA is nonetheless no substitute for obtaining a proper trademark or copyright, which is a highly technical field. Consult an expert.
It should also be noted that an assumed name certificate is not a business license, which is not required in Texas except for specific industries. Nevada, on the other hand, currently charges $200 annually for its required LLC business license.
LLC Bank Accounts and DBAs
Forming an LLC and then failing to get a DBA and do business under it reflects an incomplete process from an asset protection perspective. Get the required DBA and one or more optional DBAs. As many activities as possible should be conducted under a DBA name. There is simply no good reason to make it easy for a potential plaintiff to know the identity or location of the true party in interest behind either an entity or a transaction.
Use of DBAs with a Two-Company Structure
Our recommended asset protection structure involves two LLCs—a management company and a holding company. Both should obtain and utilize assumed names. This is particularly important for the management company in its dealing with residential tenants. The Property Code states:
Sec. 92.201. DISCLOSURE OF OWNERSHIP AND MANAGEMENT. (a) A landlord shall disclose to a tenant . . . the name and either a street or post office box address of the holder of record title, according to the deed records in the county clerk’s office, of the dwelling rented by the tenant. . . . (f) For the purposes of this section, an owner or property manager may disclose either an actual name or names or an assumed name if an assumed name certificate has been recorded with the county clerk.
Accordingly, the preferred practice from an asset protection point of view is to keep the proper name of the management company as private as possible and whenever possible use that company’s assumed name on leases, checks, and other dealings with tenants and the public.
The choice of name for an LLC is far less important than the DBA. Most clients unnecessarily spend considerable time and energy choosing an LLC name that unwisely includes or reveals their personal names or other sensitive information. Something generic for the LLC is always better, accompanied by a catchy assumed name.
Information in this article is provided for general educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well. This firm does not represent you unless and until it is retained and expressly retained in writing to do so.
Copyright © 2020 by David J. Willis. All rights reserved worldwide. David J. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his website, www.LoneStarLandLaw.com.