TBOC § 21.373: the visible-statutory comparator.

Either prong is independently sufficient. The proponent does not need to satisfy both. Solicitation requirement: 67% of voting power. Eligibility: nationally-listed Texas corporations only. Activation: opt-in by certificate of formation or bylaw amendment, with proxy-statement notice. Do not propagate the "whichever is less" framing — the statute is disjunctive; either threshold suffices (ERRATA-2026-05-19 Item 6).

SEC Chair Paul Atkins's October 9, 2025 keynote at the John L. Weinberg Center for Corporate Governance's 25th Anniversary Gala specifically identified the Texas opt-in mechanism as a model for state-law-grounded exclusion of shareholder proposals under Rule 14a-8(i)(1). The endorsement is significant in two respects.

First, it converts the Texas statute from a purely state-law operative into a federally-relevant instrument. A Texas corporation that has opted into § 21.373 can, in the post-November-17 environment, point to its codified statutory threshold as the proper-subject framework under (i)(1). The Atkins keynote signaled that the SEC staff would treat such a citation as satisfying the (i)(1) state-law-improper-subject requirement. The Texas mechanism therefore plugs directly into the post-Nov-17 federal framework that Stream 02 (no-action retreat) and Stream 01 (precatory proposals) treat in detail.

Second, the endorsement made the Texas mechanism the prototype for state-statutory rather than opinion-of-counsel-based Rule 14a-8 exclusion. The endorsement implicitly distinguished the two paths: the Delaware path operates through opinion-of-counsel practice on a contested doctrinal predicate (Pinder framework on precatory proposals); the Texas path operates through a codified statutory threshold that is not doctrinally contested but is operationally demanding. Atkins endorsed both paths but treated the Texas path as the cleaner one because it does not require the federal court to predict contested state-law jurisprudence.

1. Does the Texas opt-in rate rise after the Delaware (i)(1) doctrine is tested?

If federal courts adopt the Strine reading and narrow the Delaware (i)(1) route, Delaware-incorporated firms may have an incentive to redomicile to Texas to access the § 21.373 mechanism. If federal courts adopt the Balotti reading, the Delaware (i)(1) route is foreclosed and the Texas opt-in becomes the only widely-available proper-subject framework. Either outcome may accelerate Texas opt-in adoption, but through different causal mechanisms.

2. Does the disjunctive $1M-or-3% threshold operate differently in practice than expected?

The disjunctive structure is institutionally permissive for institutional holders ($1M is easy at any large-cap firm) and restrictive for small individual holders. Whether the threshold actually deters proposals at the submission stage or only at the (i)(1) exclusion stage is an empirical question the adoption-tracker work will help resolve. Per the CRS Report's 98%-precatory-proposals empirical anchor, even a modestly-deterrent threshold can be operationally consequential.

3. Does the Texas Business Court interpret § 21.373 narrowly or broadly?

The Business Court's first decisions interpreting § 21.373 will shape the operational reach of the statute. A narrow interpretation (e.g., requiring the proponent to satisfy both the threshold and the solicitation requirements, with no exceptions) makes the statute more deterrent. A broad interpretation (e.g., recognizing categories of proposals not subject to the threshold) makes the statute more permissive. The first Business Court decisions on § 21.373 will be among the most-cited corporate-governance jurisprudence of the next decade.

4. Do other states follow Texas's lead?

If the Texas opt-in mechanism is successful as a federal-state-interface instrument under (i)(1), other states with comparable corporate-law statutory architectures may enact parallel mechanisms. Nevada (AB 239) did not include a comparable provision in its 2025 cycle but could in a subsequent legislative session. The competitive-federalism question for the state corporate-law market is whether § 21.373 becomes the first move in a multi-state opt-in race.