Corporate Governance & Board Advisory
I've been on the board. I've been the GC. I advise from the inside.
Corporate governance isn't a specialty I studied. It's a job I've done, three times, at three companies, across two countries. When I advise boards, I'm drawing on years of preparing the materials, managing the meetings, and making the calls that kept companies on the right side of the line.
In this practice area
Most governance advice comes from the outside looking in
There's a difference between an attorney who advises boards and an attorney who has sat on the board. Between someone who drafts governance policies and someone who has enforced them under pressure. Between theory and the experience of being the person in the room when the board asks, "What do we do now?"
I've been that person. Three times. The perspective it gives me, on fiduciary duties, on risk tolerance, on how boards function versus how they're supposed to function, is something you can't get from an attorney who has only practiced from the outside.
Governance capabilities
Fiduciary Duty Advisory
Guidance on the duties of care, loyalty, and good faith as they apply to your specific governance structure. Texas recently codified the business judgment rule in the TBOC, I advise boards on what this means in practice and how to ensure decisions are defensible. Specifically, TBOC §21.419 (added by SB 29, effective May 14, 2025) creates the rebuttable presumption that directors and officers acted in good faith, on an informed basis, and in the corporation's best interests. The protection is real but conditional, it requires a documentation discipline most boards don't have by default. I help boards build that discipline into the meeting cadence: agenda design, materials review, minute-keeping, and the contemporaneous records that establish “informed basis” if the decision is later challenged.
Board Meeting Support
Meeting preparation, agenda development, board packages, minutes, and the documentation that protects directors. I've prepared board materials for publicly traded companies and bring that standard of rigor to every engagement.
Internal Investigations
When the board needs independent counsel to investigate a complaint, a whistleblower report, or a potential compliance breach, I provide the structured, defensible process that protects the company and the directors personally. The framework is the same regardless of trigger: intake (scope the matter, identify witnesses, assess privilege); preservation (litigation hold, document collection, IT preservation); interviews (Upjohn warnings, witness sequencing, contemporaneous notes); findings (board-level report, remediation recommendations, privilege analysis for any external disclosure). When a special committee is appropriate, for matters involving senior management, controlling shareholders, or related-party transactions, I help structure the committee mandate and preserve its independence.
Risk Governance
Enterprise risk assessment, risk committee support, and the frameworks that help boards understand and manage their exposure. I approach risk the way a GC does, as something to manage strategically, not something to fear.
Governance Framework Design
For companies building governance infrastructure for the first time, whether due to growth, a capital raise, or a listing, I design the committee structures, charters, policies, and reporting frameworks from the ground up. I've done this three times. I know what works and what's just paperwork.
Public Company Governance
For public companies and companies preparing to go public: board independence requirements, audit and compensation committee composition, insider trading policies, disclosure controls, and the ongoing governance obligations that come with a listing.
Corporate Secretary Services
Outsourced corporate secretary support, meeting coordination, filing obligations, shareholder communications, and the administrative infrastructure that keeps the governance system running. I've served as corporate secretary for public companies and can provide this as a standalone service or as part of a broader GC engagement.
The Scale bridge: If a governance matter escalates to litigation or regulatory investigation, Scale LLP's litigation practice, including a partner who served as a federal prosecutor in the Jack Smith investigation, provides the firepower without disrupting the advisory relationship.
The Four Pillars of Texas Governance Post-SB 29
A working framework for Texas entities navigating the governance changes that took effect May 2025. Each pillar is a distinct design decision, independence, information rights, fiduciary calibration, and litigation strategy, and each pillar can be gotten right or wrong independently of the others.
Director independence
Independence is the foundation of every governance protection. SB 29 strengthened Texas's framework for disinterested directors by codifying clearer standards for what qualifies as independence in transactions involving interested parties, drawing from Delaware's MFW pathway but applying it more broadly across Texas business entities, including LLCs and partnerships, not just corporations.
For boards, this means independence is no longer a fact pattern argued after the transaction; it is a structure to design upfront. A properly constituted independent committee, with documented disinterestedness and adequate resources for separate counsel, materially changes the standard of judicial review.
Information rights
The books and records right is the foundation of every shareholder fiduciary claim. TBOC § 21.218 as amended now codifies the "proper purpose" test for Texas entities and narrows the documents discoverable through statutory demand, ending the practice of using § 21.218 as pre-suit discovery.
Directors retain broad rights, books and records to perform their duties. Shareholders get books and records to investigate suspected wrongdoing, but the proper purpose must be specific and the demand tailored. Texas now has bright-line statutory limits where Delaware has fact-driven judicial standards.
Fiduciary duty calibration
SB 29 expanded the ability of Texas entities to modify or eliminate certain fiduciary duties through charter or operating agreement provisions. For LLCs, broad opt-outs are now permissible. For corporations, more limited opt-outs remain available, but expanded compared to pre-SB 29 doctrine.
This is not a uniform recommendation. For investor-backed companies, eliminating duties of loyalty is rarely appropriate. For family-owned holding companies, narrowed duties may be the right structure. For closely-held operating businesses, calibrated duties match the actual governance structure better than the default duty-of-loyalty framework designed for widely-held public companies.
Derivative litigation strategy
SB 29 introduced a 3% ownership threshold (TBOC § 21.552(a)(3)) for shareholders to bring derivative suits in Texas. Combined with the Texas Business Court's specialized commercial jurisdiction and the codified jury trial waiver under TBOC § 2.115, Texas has materially altered the strategic calculation around derivative litigation.
The universe of potential plaintiffs is narrowed. The forum is more sophisticated. Bench trials replace jury trials in many disputes. For directors deciding how to respond to demand letters, the threshold question is now whether the demand is from a 3%-or-greater holder before substantive response.
Texas vs Delaware, governance side by side
A practical comparison across the governance dimensions most often raised by Texas entities considering jurisdiction. Texas's post-SB 29 framework is not a wholesale replacement for Delaware practice, but on several specific dimensions, the differences are material enough to drive entity choice decisions.
| Governance dimension | Delaware | Texas (post-SB 29) |
|---|---|---|
| Business judgment rule | Codified through caselaw (Aronson, Brehm, MFW); director conduct reviewed under business judgment unless rebutted by particularized facts. | Codified under TBOC § 21.419(c); SB 29 strengthens application across entity types and tightens the rebuttal pathway. |
| Books-and-records standard | DGCL § 220, "proper purpose" required; recent narrowing in Reilly v. Aspen Group and successor cases. | TBOC § 21.218, codified proper-purpose test; specific document categories enumerated; pre-suit discovery use narrowed by SB 29. |
| Fiduciary duty modification | Permitted broadly for LLCs (DGCL § 18-1101); limited for corporations except via § 102(b)(7) exculpation. | SB 29 expanded modification scope for non-public LLCs and corporations through charter/operating agreement provisions. |
| Derivative threshold | No statutory ownership floor; demand requirement or futility under Rule 23.1 of the Chancery Rules. | TBOC § 21.552(a)(3) imposes a 3% ownership floor for shareholders to bring derivative suits. |
| Specialized commercial court | Court of Chancery, centuries of jurisprudence; bench trials standard; deep technical expertise. | Texas Business Court, operational September 2024; jurisdictional threshold $5M; bench trials standard under § 2.115. |
| Jury trial waivers | Generally enforceable for breach of contract; varies by forum and matter type. | TBOC § 2.115 (SB 29) codifies validity for governance and internal-affairs disputes. |
| Forum selection in charter | Permitted post-Boilermakers; DGCL § 115 confirmed exclusive-forum bylaws. | Permitted under TBOC § 2.115 (SB 29); designation of Texas Business Court as exclusive forum increasingly common. |
This comparison reflects statutory provisions as of May 2026. Specific applications turn on entity-specific facts and the current state of judicial interpretation. Not legal advice.
How to evaluate SB 29 opt-in decisions for your Texas entity
A structured framework for boards and counsel considering whether to opt in to specific SB 29 provisions, opt out of default fiduciary duties, or retain the Texas Business Organizations Code's default framework. The right answer is entity-specific. The right process is not.
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Identify entity type and governing documents
Pull the certificate of formation, bylaws, operating agreement, and any shareholder or operating agreements. Identify whether the entity is a public company, private corporation, or LLC. SB 29's opt-in and opt-out options vary materially across entity types, and the analysis cannot begin until the current state is documented accurately.
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Map the existing governance structure
Inventory board composition, audit committee structure, related-party transaction protocols, indemnification provisions, and information rights practice. Identify where current governance differs from default Texas BOC provisions, the gap between actual practice and statutory default often points directly to where SB 29 modifications would be most useful.
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Assess the liability risk profile honestly
Is the entity an operating business with employees, customers, and creditors, where duties to multiple stakeholders matter? A holding company with predictable cashflows and a narrow stakeholder set? An investment vehicle owned by sophisticated principals who priced in the governance terms upfront? The fiduciary-duty calibration that makes sense varies materially across these profiles.
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Consider stakeholder dynamics
Founders, outside investors, employee shareholders, and family members occupy different positions and have different interests in the fiduciary framework. The right opt-in or opt-out matches the actual stakeholder structure, not a hypothetical structure designed for a different class of company.
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Document the decision and update the governing documents
Whatever the choice, opt out broadly, opt out narrowly, retain default duties, document the rationale at the board level and amend the governing documents through the proper authorization process. The reasoning matters as much as the result. A board record that reflects the analysis protects directors at the front end and defends the decision in any later review.
Texas Senate Bill 29, the new floor for governance protection.
On May 14, 2025, Texas signed Senate Bill 29 into law, effective immediately. SB 29 is the most consequential change to Texas corporate governance in a generation. It doesn't replace the duties of care, loyalty, and good faith that directors owe shareholders. It changes how those duties are evaluated, and who can challenge them.
The codified business judgment rule (TBOC §21.419). The rule has long existed at common law; SB 29 makes it statutory. Directors and officers of covered corporations are now presumed to act in good faith, on an informed basis, in the corporation's best interests, and in compliance with governing documents. The presumption can be overcome, but only by specific evidence of fraud, intentional misconduct, ultra vires action, or knowing violation of law, with pleading at a heightened particularity standard similar to Federal Rule 9(b).
Public companies are covered automatically. Private corporations must affirmatively opt in by amending their certificate of formation. This is an actual decision your board has to make, not a default.
The corollary protections. SB 29 also establishes a 3% ownership threshold for derivative actions at SB 29-elected companies, narrows shareholder books-and-records inspection rights (excluding routine emails and texts unless they effectuate corporate action), and permits jury waivers and exclusive forum-selection clauses in governance documents (TBOC §§2.115 and 2.116). Companion sections cover LLCs (TBOC §101.256) and limited partnerships (TBOC §153.163). For LPs, the changes go further, a partnership agreement can now expressly eliminate fiduciary duties.
What this means in practice. If your Texas corporation hasn't opted in, your directors don't have these protections. The opt-in is straightforward; the discipline of documenting board decisions to qualify for the protection is the real work.
The Texas Business Court and governance disputes.
The Texas Business Court, operational since September 1, 2024 (codified at Tex. Gov't Code Chapter 25A), has direct relevance for governance practice. The court has jurisdiction over derivative actions, internal entity disputes, and TBOC-based actions involving publicly traded companies regardless of dollar threshold. House Bill 40 (effective September 1, 2025) lowered the general jurisdictional threshold to $5 million for most case categories.
What this means: governance-related disputes that previously moved through the regular district courts now have a specialized forum with judges experienced in business law. For corporations operating under SB 29's BJR codification, the practical effect is that BJR-related disputes are likely to be heard by judges trained to apply the rule consistently, a meaningful predictability gain over forum-shopping under the prior regime.
I advise on documenting board decisions, drafting governance documents, and structuring internal proceedings with the Business Court forum in mind.
What three GC tours taught me about boards.
Three public-company GC tours, three different governance challenges. The two Calgary-based dual-listed energy companies (NYSE/TSX) ran on the rhythm of continuous disclosure, quarterly reporting in two jurisdictions, material change reporting under both SEC and Canadian regulators, board oversight of decisions that moved markets. The discipline there was cadence.
At DIRTT Environmental Solutions (TSX: DRT), the work was crisis governance, operating the board through the COVID-era operational reset, restructuring distribution contracts under time pressure, leading multi-million-dollar commercial litigation through to summary judgment, and supporting the board through a CEO transition. The discipline there was judgment under uncertainty.
At Greenfire Resources (NYSE/TSX: GFR), where I currently serve as Outside General Counsel and Corporate Secretary, the work has been governance framework design for a freshly public company: building board policies, equity compensation plans, and continuous-disclosure infrastructure post-listing. The discipline there is foundation.
Three tours, three lessons. Boards function well when three things are true: the information flowing to directors is complete and timely, the governance structure matches the company's actual risk profile, and the GC is willing to deliver uncomfortable news without hedging. I've built that system three times. I've sat in meetings where the right answer was the one nobody wanted to hear, and I delivered it anyway. When I advise your board, I bring that same directness, drawn from real chairs, in real moments.
Client Testimonial
Sometimes Legal can be viewed as the 'business prevention department' — but it was the exact opposite with Chuck. He was extremely strategic, added valuable contributions across all areas of the business, and was a fantastic partner to commercial.Jennifer Warawa Former Chief Commercial Officer, DIRTT (TSX: DRT)
Frequently asked questions
Any time the decisions being made carry personal liability for the people making them. If your company has a board, investors, regulatory obligations, or is contemplating a significant transaction, governance counsel isn't optional, it's protection.
Yes. In many engagements, I serve as counsel to the board rather than to the company, particularly in situations involving conflicts of interest, internal investigations, or transactions where the interests of management and the board may diverge.
Senate Bill 29, signed by Governor Abbott on May 14, 2025 (effective immediately), codified the business judgment rule at TBOC §21.419. Public companies are covered automatically; private corporations must opt in by amending their certificate of formation. The codified rule creates a rebuttable presumption that directors acted in good faith, on an informed basis, and in the corporation's best interests. The presumption can be overcome, but only by specific evidence of fraud, intentional misconduct, ultra vires action, or knowing violation of law, with pleading at a heightened particularity standard. The protection is significant but conditional: it requires a documentation discipline that most boards don't have by default. I advise on building that discipline into the meeting cadence and on the certificate-of-formation amendments needed to opt in.
Governance advisory is focused specifically on board-level matters, fiduciary duties, meeting support, committee structure, risk oversight. Fractional GC is broader, it includes governance but also covers contracts, commercial support, compliance, and day-to-day legal operations. Many clients start with one and expand to the other.
For most Texas-domiciled corporations, yes, the protections are real, the cost is low, and the downside is minimal. The opt-in mechanism is a certificate-of-formation amendment, which requires shareholder approval but doesn't fundamentally change how the corporation operates day-to-day. What you get in return: the codified business judgment rule presumption (TBOC §21.419), the 3% ownership threshold for derivative actions, narrowed books-and-records inspection rights, and the ability to include jury waivers and exclusive forum-selection clauses in your governing documents. The two scenarios where opt-in deserves more thought are (a) corporations with sophisticated outside investors who have negotiated for specific shareholder protections that opt-in might erode, and (b) corporations contemplating institutional capital where investors typically expect Delaware-style protections. For founder-controlled and family-owned Texas corporations, the analysis usually points toward opt-in.
The general rule: any time the matter touches senior management, controlling shareholders, or related-party transactions, the board needs counsel separate from the company's regular outside counsel. The technical reason is privilege, communications between the company and its regular counsel may not protect the directors personally if interests diverge later. The practical reason is independence, the board needs advice unfiltered by the management relationship. Other triggers worth considering: whistleblower complaints alleging conduct by named officers, regulatory inquiries, transactions where management has a personal financial interest, and any matter the audit committee specifically requests be investigated independently. The earlier counsel is engaged, the more options remain available, for documentation, for privilege, for remediation. Late engagement narrows options.
From the Y'all Street Law podcast
Brian Elliott and I cover the developing landscape of Texas business law in long-form conversation. Episodes most relevant to this practice area:
Texas Corporate Law Overhaul
SB 29 codified the business judgment rule, raised derivative-suit thresholds, and reset the Texas governance landscape. Brian and I work through what changed and which provisions are opt-in.
Listen Episode 1Texas Business Courts Launch
The September 2024 launch of the specialized Texas commercial court, why it exists, what cases qualify, and how governance disputes route through it.
Listen Episode 5Business Courts Deep Dive
How the Texas Business Court is operating in practice, judges, written opinions, and the developing body of Texas business law.
Listen Episode 162026 Predictions
Where the Texas governance practice is heading, derivative litigation under SB 29, more redomestications, and the Business Court hitting its stride.
ListenDefined terms in this practice area
Each term links to a statutorily-grounded definition in the Kraus Law glossary, with citations and Texas-specific application notes.
Your board deserves counsel
that has sat in the chair.
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