Tex. Bus. Orgs. Code Section 101.458
Dismissal of Derivative Proceeding

(a)

A court, sitting in equity as the finder of fact, shall dismiss a derivative proceeding on a motion by the limited liability company if the person or group of persons described by Section 101.454 (Determination by Governing or Independent Persons) 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 limited liability company.

(b)

In determining whether the requirements of Subsection (a) have been met, the burden of proof shall be on:

(1)

the plaintiff member if:

(A)

the applicable person or persons making the determination under Section 101.454 (Determination by Governing or Independent Persons)(a)(1) or (2) are independent and disinterested 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 Section 101.454 (Determination by Governing or Independent Persons)(a)(3); or

(C)

the limited liability company presents prima facie evidence that demonstrates that the applicable person or persons making the determination under Section 101.454 (Determination by Governing or Independent Persons)(a) are independent and disinterested; or

(2)

the limited liability company in any other circumstance.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2019, 86th Leg., R.S., Ch. 899 (H.B. 3603), Sec. 20, eff. September 1, 2019.

Source: Section 101.458 — Dismissal of Derivative Proceeding, https://statutes.­capitol.­texas.­gov/Docs/BO/htm/BO.­101.­htm#101.­458 (accessed Jun. 5, 2024).

101.001
Definitions 101.002
Applicability of Other Laws 101.051
Certain Provisions Contained in Certificate of Formation 101.052
Company Agreement 101.053
Amendment of Company Agreement 101.054
Waiver or Modification of Certain Statutory Provisions Prohibited 101.055
Irrevocable Power of Attorney 101.056
Ratification of Void or Voidable Acts or Transactions 101.101
Members Required 101.102
Qualification for Membership 101.103
Effective Date of Membership 101.104
Classes or Groups of Members or Membership Interests 101.105
Issuance of Membership Interests After Formation of Company 101.106
Nature of Membership Interest 101.107
Withdrawal or Expulsion of Member Prohibited 101.108
Assignment of Membership Interest 101.109
Rights and Duties of Assignee of Membership Interest Before Membership 101.110
Rights and Liabilities of Assignee of Membership Interest After Becoming Member 101.111
Rights and Duties of Assignor of Membership Interest 101.112
Member’s Membership Interest Subject to Charging Order 101.113
Parties to Actions 101.114
Liability for Obligations 101.151
Requirements for Enforceable Promise 101.152
Enforceable Promise Not Affected by Change in Circumstances 101.153
Failure to Perform Enforceable Promise 101.154
Consent Required to Release Enforceable Obligation 101.155
Creditor’s Right to Enforce Certain Obligations 101.156
Requirements to Enforce Conditional Obligation 101.201
Allocation of Profits and Losses 101.202
Distribution in Kind 101.203
Sharing of Distributions 101.204
Interim Distributions 101.205
Distribution on Withdrawal 101.206
Prohibited Distribution 101.207
Creditor Status with Respect to Distribution 101.208
Record Date 101.251
Governing Authority 101.252
Management by Governing Authority 101.253
Designation of Committees 101.254
Designation of Agents 101.255
Contracts or Transactions Involving Interested Governing Persons or Officers 101.301
Applicability of Subchapter 101.302
Number and Qualifications 101.303
Term 101.304
Removal 101.305
Manager Vacancy 101.306
Removal and Replacement of Manager Elected by Class or Group 101.307
Methods of Classifying Managers 101.352
General Notice Requirements 101.353
Quorum 101.354
Equal Voting Rights 101.355
Act of Governing Authority, Members, or Committee 101.356
Votes Required to Approve Certain Actions 101.357
Manner of Voting 101.358
Action by Less than Unanimous Written Consent 101.359
Effective Action by Members or Managers with or Without Meeting 101.401
Expansion or Restriction of Duties and Liabilities 101.402
Permissive Indemnification, Advancement of Expenses, and Insurance or Other Arrangements 101.451
Definitions 101.452
Standing to Bring Proceeding 101.453
Demand 101.454
Determination by Governing or Independent Persons 101.455
Stay of Proceeding 101.456
Discovery 101.457
Tolling of Statute of Limitations 101.458
Dismissal of Derivative Proceeding 101.459
Allegations After Demand Rejected 101.460
Discontinuance or Settlement 101.461
Payment of Expenses 101.462
Application to Foreign Limited Liability Companies 101.463
Closely Held Limited Liability Company 101.501
Supplemental Records Required for Limited Liability Companies 101.502
Right to Examine Records 101.503
Penalty for Refusal to Permit Examination of Certain Records 101.0515
Execution of Filings 101.551
Persons Eligible to Wind up Company 101.552
Approval of Voluntary Winding Up, Revocation, Cancellation, or Reinstatement 101.601
Series of Members, Managers, Membership Interests, or Assets 101.602
Enforceability of Obligations and Expenses of Protected Series or Registered Series Against Assets 101.603
Assets of Protected Series or Registered Series 101.604
Notice of Limitation on Liabilities of Protected Series or Registered Series 101.605
General Powers of Protected Series or Registered Series 101.606
Liability of Member or Manager for Obligations 101.607
Class or Group of Members or Managers 101.608
Governing Authority 101.610
Effect of Certain Event on Manager or Member 101.611
Member Status with Respect to Distribution 101.612
Record Date for Allocations and Distributions 101.613
Distributions 101.614
Authority to Wind up and Terminate Protected Series or Registered Series 101.615
Termination of Protected Series or Registered Series 101.616
Event Requiring Winding up 101.617
Procedures for Winding up and Termination of Protected Series or Registered Series 101.618
Revocation of Voluntary Winding up 101.619
Cancellation of Event Requiring Winding up 101.620
Continuation of Business 101.621
Winding up by Court Order 101.622
Protected Series or Registered Series Not a Separate Domestic Entity or Organization 101.623
Filing of Certificate of Registered Series 101.624
Amending Certificate of Registered Series 101.625
Certificate of Termination for Registered Series 101.626
Name of Registered Series 101.627
Conversion of a Registered Series to a Protected Series 101.628
Authorization of Conversion 101.629
Conversion Not Winding up Event 101.630
Effect of Conversion 101.631
Filing of Certificate of Conversion 101.632
Prohibition on Conversion Permitted 101.633
Merger Among Merging Series of Same Limited Liability Company 101.634
Certificate of Merger 101.635
Effects of Merger of Merging Series 101.636
Prohibition on Merger Permitted 101.1115
Effect of Death or Divorce on Membership Interest
Green check means up to date. Up to date

Accessed:
Jun. 5, 2024

§ 101.458’s source at texas​.gov