TEXAS BUSINESS ORGANIZATIONS
§ 21.551. DEFINITIONS.
In this subchapter:
(1) "Derivative proceeding" means a civil suit in the right of a domestic corporation or, to the extent provided by § 21.562, in the right of a foreign corporation.
(2) "Shareholder" includes a beneficial owner whose shares are held in a voting trust or by a nominee on the beneficial owner's behalf.
§ 21.552. STANDING TO BRING PROCEEDING.
A shareholder may not institute or maintain a derivative proceeding unless:
(1) the shareholder:
(A) was a shareholder of the corporation at the time of the act or omission complained of; or
(B) became a shareholder by operation of law from a person that was a shareholder at the time of the act or omission complained of; and
(2) the shareholder fairly and adequately represents the interests of the corporation in enforcing the right of the corporation.
§ 21.553. DEMAND.
(a) A shareholder may not institute a derivative proceeding until the 91st day after the date a written demand is filed with the corporation stating with particularity the act, omission, or other matter that is the subject of the claim or challenge and requesting that the corporation take suitable action.
(b) The waiting period required by Subsection (a) before a derivative proceeding may be instituted is not required if:
(1) the shareholder has been previously notified that the demand has been rejected by the corporation;
(2) the corporation is suffering irreparable injury; or
(3) irreparable injury to the corporation would result by waiting for the expiration of the 90-day period.
§ 21.554. DETERMINATION BY DIRECTORS OR INDEPENDENT PERSONS.
(a) A determination of how to proceed on allegations made in a demand or petition relating to a derivative proceeding must be made by an affirmative vote of the majority of:
(1) the independent and disinterested directors of the corporation present at a meeting of the board of directors of the corporation at which interested directors are not present at the time of the vote if the independent and disinterested directors constitute a quorum of the board of directors;
(2) a committee consisting of two or more independent and disinterested directors appointed by an affirmative vote of the majority of one or more independent and disinterested directors present at a meeting of the board of directors, regardless of whether the independent and disinterested directors constitute a quorum of the board of directors; or
(3) a panel of one or more independent and disinterested persons appointed by the court on a motion by the corporation listing the names of the persons to be appointed and stating that, to the best of the corporation's knowledge, the persons to be appointed are disinterested and qualified to make the determinations contemplated by § 21.558.
(b) The court shall appoint a panel under Subsection (a)(3) if the court finds that the persons recommended by the corporation are independent and disinterested and are otherwise qualified with respect to expertise, experience, independent judgment, and other factors considered appropriate by the court under the circumstances to make the determinations. A person appointed by the court to a panel under this § may not be held liable to the corporation or the corporation's shareholders for an action taken or omission made by the person in that capacity, except for an act or omission constituting fraud or wilful misconduct.
§ 21.555. STAY OF PROCEEDING.
(a) If the domestic or foreign corporation that is the subject of a derivative proceeding commences an inquiry into the allegations made in a demand or petition and the person or group of persons described by § 21.554 is conducting an active review of the allegations in good faith, the court shall stay a derivative proceeding until the review is completed and a determination is made by the person or group regarding what further action, if any, should be taken.
(b) To obtain a stay, the domestic or foreign corporation shall provide the court with a written statement agreeing to advise the court and the shareholder making the demand of the determination promptly on the completion of the review of the matter. A stay, on application, may be reviewed every 60 days for the continued necessity of the stay.
(c) If the review and determination made by the person or group is not completed before the 61st day after the stay is ordered by the court, the stay may be renewed for one or more additional 60-day periods if the domestic or foreign corporation provides the court and the shareholder with a written statement of the status of the review and the reasons why a continued extension of the stay is necessary.
§ 21.556. DISCOVERY.
(a) If a domestic or foreign corporation proposes to dismiss a derivative proceeding under § 21.558, discovery by a shareholder after the filing of the derivative proceeding in accordance with this subchapter shall be limited to:
(1) facts relating to whether the person or group of persons described by § 21.558 is independent and disinterested;
(2) the good faith of the inquiry and review by the person or group; and
(3) the reasonableness of the procedures followed by the person or group in conducting the review.
(b) Discovery described by Subsection (a) may not be expanded to include a fact or substantive matter regarding the act, omission, or other matter that is the subject matter of the derivative proceeding. The scope of discovery may be expanded if the court determines after notice and hearing that a good faith review of the allegations for purposes of § 21.558 has not been made by an independent and disinterested person or group in accordance with that section.
§ 21.557. TOLLING OF STATUTE OF LIMITATIONS.
A written demand filed with the corporation under § 21.553 tolls the statute of limitations on the claim on which demand is made until the earlier of:
(1) the 91st day after the date of the demand; or
(2) the 31st day after the date the corporation advises the shareholder that the demand has been rejected or the review has been completed.
§ 21.558. DISMISSAL OF DERIVATIVE PROCEEDING.
(a) A court shall dismiss a derivative proceeding on a motion by the corporation if the person or group of persons described by § 21.554 determines in good faith, after conducting a reasonable inquiry and based on factors the person or group considers appropriate under the circumstances, that continuation of the derivative proceeding is not in the best interests of the corporation.
(b) In determining whether the requirements of Subsection (a) have been met, the burden of proof shall be on:
(1) the plaintiff shareholder if:
(A) the majority of the board of directors consists of independent and disinterested directors at the time the determination is made;
(B) the determination is made by a panel of one or more independent and disinterested persons appointed under § 21.554(a)(3); or
(C) the corporation presents prima facie evidence that demonstrates that the directors appointed under § 21.554(a)(2) are independent and disinterested; or
(2) the corporation in any other circumstance.
§ 21.559. PROCEEDING INSTITUTED AFTER DEMAND REJECTED.
If a derivative proceeding is instituted after a demand is rejected, the petition must allege with particularity facts that establish that the rejection was not made in accordance with the requirements of §§ 21.554 and 21.558.
§ 21.560. DISCONTINUANCE OR SETTLEMENT.
(a) A derivative proceeding may not be discontinued or settled without court approval.
(b) The court shall direct that notice be given to the affected shareholders if the court determines that a proposed discontinuance or settlement may substantially affect the interests of other shareholders.
§ 21.561. PAYMENT OF EXPENSES.
(a) In this section, "expenses" means reasonable expenses incurred by a party in a derivative proceeding, including:
(1) attorney's fees;
(2) costs in pursuing an investigation of the matter that was the subject of the derivative proceeding; or
(3) expenses for which the domestic or foreign corporation or a corporate defendant may be required to indemnify another person.
(b) On termination of a derivative proceeding, the court may order:
(1) the domestic or foreign corporation to pay the expenses the plaintiff incurred in the proceeding if the court finds the proceeding has resulted in a substantial benefit to the domestic or foreign corporation;
(2) the plaintiff to pay the expenses the domestic or foreign corporation or other defendant incurred in investigating and defending the proceeding if the court finds the proceeding has been instituted or maintained without reasonable cause or for an improper purpose; or
(3) a party to pay the expenses incurred by another party relating to the filing of a pleading, motion, or other paper if the court finds the pleading, motion, or other paper:
(A) was not well grounded in fact after reasonable inquiry;
(B) was not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; or
(C) was interposed for an improper purpose, such as to harass, cause unnecessary delay, or cause a needless increase in the cost of litigation.
§ 21.562. APPLICATION TO FOREIGN CORPORATIONS.
(a) In a derivative proceeding brought in the right of a foreign corporation, the matters covered by this subchapter are governed by the laws of the jurisdiction of incorporation of the foreign corporation, except for §§ 21.555, 21.560, and 21.561, which are procedural provisions and do not relate to the internal affairs of the foreign corporation.
(b) In the case of matters relating to a foreign corporation under § 21.554, a reference to a person or group of persons described by that § refers to a person or group entitled under the laws of the jurisdiction of incorporation of the foreign corporation to review and dispose of a derivative proceeding. The standard of review of a decision made by the person or group to dismiss the derivative proceeding shall be governed by the laws of the jurisdiction of incorporation of the foreign corporation.
§ 21.563. CLOSELY HELD CORPORATION.
(a) In this section, "closely held corporation" means a corporation that has:
(1) fewer than 35 shareholders; and
(2) no shares listed on a national securities exchange or regularly quoted in an over-the-counter market by one or more members of a national securities association.
(b) §§ 21.552-21.559 do not apply to a closely held corporation.
(c) If justice requires:
(1) a derivative proceeding brought by a shareholder of a closely held corporation may be treated by a court as a direct action brought by the shareholder for the shareholder's own benefit; and
(2) a recovery in a direct or derivative proceeding by a shareholder may be paid directly to the plaintiff or to the corporation if necessary to protect the interests of creditors or other shareholders of the corporation.