1. (a) Except as provided by Subsections (b) and (c), the determinations required under Section 8.101(a) must be made by:

   1. (1) a majority vote of a quorum composed of the governing persons who at the time of the vote are disinterested and independent;
   2. (2) if a quorum described by Subdivision (1) cannot be obtained, a majority vote of a committee of the governing authority of the enterprise designated to act in the matter by a majority vote of the governing persons and composed solely of one or more governing persons who at the time of the vote are disinterested and independent;
   3. (3) special legal counsel selected by the governing authority of the enterprise, or selected by a committee of the board of directors, by vote in accordance with Subdivision (1) or (2) or, if a quorum described by Subdivision (1) cannot be obtained and a committee described by Subdivision (2) cannot be established, by a majority vote of the governing persons of the enterprise;
   4. (4) the owners or members of the enterprise in a vote that excludes the ownership or membership interests held by each governing person who is not disinterested and independent; or
   5. (5) a unanimous vote of the owners or members of the enterprise.
2. (b) If special legal counsel determines under Subsection (a)(3) that a person meets the standard under Section 8.101(a)(1), the special legal counsel shall determine whether the amount of expenses other than a judgment is reasonable under Section 8.101(a)(2) but may not determine whether indemnification should be paid under Section 8.101(a)(3). The determination whether indemnification should be paid must be made in a manner specified by Subsection (a)(1), (2), (4), or (5).
3. (c) A provision contained in the governing documents of the enterprise, a resolution of the owners, members, or governing authority, or an agreement that requires the indemnification of a person who meets the standard under Section 8.101(a)(1) constitutes a determination under Section 8.101(a)(3) that indemnification should be paid even though the provision may not have been adopted or authorized in the same manner as the determinations required under Section 8.101(a). The determinations required under Sections 8.101(a)(1) and (2) must be made in a manner provided by Subsection (a).

Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.