By Blackwood H.B. No. 712
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to solicitation by public safety organizations, public
1-3 safety publications, and certain independent promoters; providing
1-4 criminal and civil penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. DEFINITIONS. In this Act:
1-7 (1) "Independent promoter" means a person conducting
1-8 an independent promotion.
1-9 (2) "Independent promotion" means an appeal for a
1-10 donation or the sale of tickets or advertising by a person that is
1-11 not affiliated with a public safety organization in the name of
1-12 public safety or in a name or cause associated with public safety.
1-13 (3) "Law enforcement personnel" means employees of
1-14 government law enforcement agencies who are commissioned peace
1-15 officers.
1-16 (4) "Person" includes an individual, corporation,
1-17 organization, business trust, partnership, association, and any
1-18 other legal entity.
1-19 (5) "Public safety organization" means a
1-20 nongovernmental organization that uses in its name, in a
1-21 publication of the organization, in a solicitation for
1-22 contributions to the organization, for membership in the
1-23 organization, or to purchase advertising in a publication of the
1-24 organization, or in a solicitation to purchase products or tickets
2-1 to an event sponsored by or for the benefit of the organization by
2-2 a solicitor, the term "officer," "peace officer," "police officer,"
2-3 "police," "law enforcement," "reserve officer," "deputy," "deputy
2-4 sheriff," "constable," "deputy constable," "civilian employee," or
2-5 any other term in a manner that reasonably implies that the
2-6 organization is composed of law enforcement or public safety
2-7 personnel or that a contribution, purchase, or membership will
2-8 benefit public safety personnel.
2-9 (6) "Public safety personnel" means employees or
2-10 volunteers of a public safety organization, including fire
2-11 fighters, emergency medical service providers, or civilian
2-12 employees of a public safety organization.
2-13 (7) "Public safety publication" means a
2-14 nongovernmental publication with a name that includes the term
2-15 "officer," "peace officer," "police officer," "police," "law
2-16 enforcement," "reserve officer," "deputy," "deputy sheriff,"
2-17 "constable," "deputy constable," "civilian employee," or any other
2-18 term in a manner that reasonably implies that the publication is
2-19 published by or benefits public safety.
2-20 (8) "Solicitor" means a person who contracts for or
2-21 receives monetary compensation for providing solicitation services
2-22 on behalf of a public safety organization, independent promoter, or
2-23 public safety publication and who solicits:
2-24 (A) contributions in person, by telephone, by
2-25 electronic media, or by mail;
2-26 (B) membership in a public safety organization
2-27 from individuals who are not employed by a public safety agency of
3-1 the United States, this state, or a political subdivision of this
3-2 state;
3-3 (C) the purchase of advertising; or
3-4 (D) the purchase of goods, services, or tickets
3-5 to an event sponsored by or for the benefit of a public safety
3-6 organization or for the cause of public safety.
3-7 SECTION 2. REGISTRATION REQUIRED. (a) A public safety
3-8 organization, independent promoter, or public safety publication
3-9 may not solicit unless the public safety organization, independent
3-10 promoter, or public safety publication has filed a registration
3-11 statement as required by Section 4 of this Act and has paid a
3-12 registration fee as required by Section 5 of this Act.
3-13 (b) A public safety organization, independent promoter, or
3-14 public safety publication may not use a solicitor unless the
3-15 solicitor has filed a registration statement and paid the
3-16 registration fee as required by Section 6 of this Act and has filed
3-17 and maintains a bond as required by Section 7 of this Act.
3-18 (c) A person may not act as solicitor for a public safety
3-19 organization, independent promoter, or public safety publication
3-20 unless the person has filed a registration statement as required by
3-21 Section 6 of this Act and has filed and maintains a bond as
3-22 required by Section 7 of this Act.
3-23 SECTION 3. ELIGIBILITY. (a) A public safety organization
3-24 is eligible to register under Section 4 of this Act and use a
3-25 solicitor if the organization is a bona fide membership
3-26 organization that consists of members:
3-27 (1) who are individuals;
4-1 (2) of whom at least five percent or 500 members,
4-2 whichever is less, are employed as law enforcement personnel or
4-3 public safety personnel by a public safety agency of the United
4-4 States, this state, or a political subdivision of this state; and
4-5 (3) who signed written membership agreements with the
4-6 organization and paid an annual membership fee of not less than $10
4-7 a member.
4-8 (b) An independent promoter is eligible to register under
4-9 Section 4 of this Act and use a solicitor if a full disclosure is
4-10 made in accordance with this Act.
4-11 SECTION 4. REGISTRATION STATEMENT FOR PUBLIC SAFETY
4-12 ORGANIZATION, INDEPENDENT PROMOTER, AND PUBLIC SAFETY PUBLICATION.
4-13 (a) Before beginning solicitations a public safety organization,
4-14 independent promoter, or public safety publication must have on
4-15 file with the secretary of state for public disclosure a
4-16 registration statement signed by two of its officers or directors
4-17 and if the organization, promoter, or publication is not a resident
4-18 of this state, must have on file with the secretary of state an
4-19 irrevocable written consent appointing the attorney general as
4-20 agent for service of process on the organization, promoter, or
4-21 publication for any action pertaining to a violation of this Act.
4-22 The registration statement must disclose:
4-23 (1) the name, street address, and telephone number of
4-24 the solicitors that are to solicit on behalf of the registering
4-25 entity, if any;
4-26 (2) the name, street address, and telephone number of
4-27 each public safety organization, public safety publication, or fund
5-1 on behalf of which all or part of the contributions will be used,
5-2 or if there is no organization, publication, or fund, a statement
5-3 describing the manner in which the contributions will be used;
5-4 (3) a statement of whether the registering entity or
5-5 fund for which the contributions are to be solicited has a
5-6 charitable tax exemption under both federal and state law;
5-7 (4) the name and public safety agency or former agency
5-8 of each active and retired public safety officer who serves on the
5-9 board of directors or governing body of the registering entity, if
5-10 any;
5-11 (5) the number of members and the percentage of
5-12 members who are active and retired public safety officers of the
5-13 United States, this state, or a political subdivision of this
5-14 state, as determined on December 31 of the year preceding the year
5-15 in which the registration is made and for which the contributions
5-16 are solicited, if the registering entity is a public safety
5-17 organization;
5-18 (6) the name of the local chapter, lodge, association,
5-19 or group of licensed public safety officers of the public safety
5-20 organization for which contributions are to be solicited, if the
5-21 registering entity is a public safety organization;
5-22 (7) a copy of the most recent tax or informational
5-23 return filed with the Internal Revenue Service by the registering
5-24 entity;
5-25 (8) the amount of funds collected during the previous
5-26 year by the registering entity through solicitations of nonmembers
5-27 of the public safety organization for which the funds were
6-1 collected and the amount of funds that are paid as expenses to
6-2 maintain the solicitation operation;
6-3 (9) if known or projected, the amount of funds
6-4 expected to be collected during the year of filing by the
6-5 registering entity through solicitations of nonmembers described by
6-6 Subdivision (8) of this subsection;
6-7 (10) a copy of any contract or agreement between the
6-8 registering entity and a solicitor; and
6-9 (11) if the registering entity is a public safety
6-10 publication, information on:
6-11 (A) the total number of copies of each issue of
6-12 the publication to be printed;
6-13 (B) the frequency of the publication; and
6-14 (C) the date and circulation of the most recent
6-15 issue of the publication.
6-16 (b) A public safety organization, independent promoter, or
6-17 public safety publication that has filed a registration statement
6-18 under Subsection (a) of this section and that continues to make
6-19 solicitations through a solicitor shall file an updated statement
6-20 with the secretary of state on or before January 15 of each year
6-21 during which a solicitation will occur.
6-22 (c) A public safety organization, independent promoter, or
6-23 public safety publication that has filed a registration statement
6-24 under Subsection (a) of this section shall file an updated
6-25 statement with the secretary of state within 30 days after the date
6-26 of a change of street address, phone number, or name.
6-27 SECTION 5. REGISTRATION FEE FOR PUBLIC SAFETY ORGANIZATION,
7-1 INDEPENDENT PROMOTER, OR PUBLIC SAFETY PUBLICATION. A public
7-2 safety organization or independent promoter that registers under
7-3 Section 4 of this Act shall pay an annual $250 registration fee to
7-4 the secretary of state.
7-5 SECTION 6. SOLICITOR REGISTRATION STATEMENT AND FEE. (a)
7-6 Before beginning solicitations for a public safety organization,
7-7 independent promoter, or public safety publication, a solicitor
7-8 must have on file with the secretary of state for public disclosure
7-9 a registration statement containing:
7-10 (1) the name, street and mailing address, and
7-11 telephone number of the solicitor;
7-12 (2) the name, street and mailing address, and
7-13 telephone number of each public safety organization, independent
7-14 promoter, or public safety publication on whose behalf the
7-15 solicitor solicits or will solicit in this state; and
7-16 (3) if the solicitor is not a resident of this state,
7-17 an irrevocable written consent appointing the attorney general as
7-18 agent for service of process on the solicitor for any action
7-19 pertaining to a violation of this Act.
7-20 (b) The registration statement required by Subsection (a) of
7-21 this section must be accompanied by a registration fee in the
7-22 amount of $500 and a bond as required by Section 7 of this Act.
7-23 (c) A solicitor that has filed a registration statement
7-24 under Subsection (a) of this section shall file an updated
7-25 statement and renewal fee in the amount of $500 with the secretary
7-26 of state on or before January 15 of each year during which the
7-27 solicitor will solicit on behalf of a public safety organization,
8-1 independent promoter, or public safety publication.
8-2 (d) A solicitor that has filed a registration statement
8-3 under Subsection (a) of this section shall file an updated
8-4 statement with the secretary of state within 30 days after the date
8-5 of a change of street address, mailing address, phone number, or
8-6 name.
8-7 SECTION 7. SOLICITOR BOND. (a) A solicitor shall post a
8-8 surety bond with the secretary of state in the amount of $10,000
8-9 issued by a surety company authorized to do business in this state.
8-10 (b) The bond must be payable to the state and conditioned on
8-11 compliance with this Act.
8-12 SECTION 8. DISCLOSURE REQUIRED. A disclosure shall be given
8-13 to each resident, orally or in writing, before the resident
8-14 delivers any consideration to a public safety organization,
8-15 independent promoter, public safety publication, or solicitor. The
8-16 disclosure, if given in writing, must be in contrasting eight-point
8-17 type or larger. A disclosure must include:
8-18 (1) the name of the public safety organization as
8-19 registered under Section 4 of this Act, if a public safety
8-20 organization is involved;
8-21 (2) an express statement that the promotion is
8-22 independent of affiliation with any public safety organization, if
8-23 an independent promoter is involved;
8-24 (3) the name of the solicitor, if one has been
8-25 employed as part of the solicitation;
8-26 (4) a general statement as to how the net funds
8-27 received will be used; and
9-1 (5) the name, street address, and statewide hotline
9-2 number by which a resident may obtain additional information on the
9-3 public safety organization, independent promoter, public safety
9-4 publication, or solicitor from the secretary of state.
9-5 SECTION 9. SOLICITATION INFORMATION HOTLINE. The secretary
9-6 of state shall establish and operate a toll-free telephone line
9-7 known as Solicitation Information Hotline. A member of the public
9-8 may telephone the hotline number to:
9-9 (1) obtain information concerning a public safety
9-10 organization, independent promoter, public safety publication, or
9-11 solicitor that has filed a registration statement with the
9-12 secretary of state under this Act; or
9-13 (2) report an alleged violation of this Act by a
9-14 public safety organization, independent promoter, public safety
9-15 publication, or solicitor.
9-16 SECTION 10. PROHIBITED PRACTICES. A person may not commit
9-17 an unfair or deceptive act or practice in the conduct of
9-18 solicitations for a public safety organization, independent
9-19 promoter, or public safety publication, including:
9-20 (1) using any representation that implies that the
9-21 contribution is for or on behalf of a public safety agency or a
9-22 public safety organization, or using any emblem, device, or printed
9-23 matter belonging to or associated with a public safety agency or
9-24 organization, unless authorized in writing to do so by the agency
9-25 or organization;
9-26 (2) using a name, symbol, or statement that is similar
9-27 to that used by a public safety agency or organization in a manner
10-1 that is intended to confuse or mislead a person being solicited;
10-2 (3) knowingly representing or implying that the
10-3 proceeds of the solicitation are being used for a purpose other
10-4 than the purpose for which the funds are actually used;
10-5 (4) representing or implying that the solicitor is a
10-6 peace officer or member of a public safety agency or public safety
10-7 organization if the solicitor is not;
10-8 (5) using or exploiting the fact of filing with the
10-9 secretary of state in a manner that leads any person to believe
10-10 that filing in any manner constitutes an endorsement or approval of
10-11 the state;
10-12 (6) knowingly filing incomplete, false, or misleading
10-13 information in any document required to be filed with the secretary
10-14 of state under this Act;
10-15 (7) soliciting for a public safety organization,
10-16 independent promoter, public safety publication, or cause by
10-17 representing that those who respond affirmatively to the
10-18 solicitation will receive favored treatment by public safety
10-19 personnel;
10-20 (8) collecting a contribution or membership fee
10-21 solicited at a person's residence by an in-person or telephone
10-22 solicitation through any means other than payment through the
10-23 United States mail or parcel post courier; or
10-24 (9) soliciting for a public safety organization in a
10-25 county in which members of the public safety organization do not
10-26 have jurisdiction.
10-27 SECTION 11. AUDIT POWERS OF ATTORNEY GENERAL. (a) The
11-1 attorney general may make a written request for information from a
11-2 public safety organization, independent promoter, public safety
11-3 publication, or solicitor for the purpose of auditing or verifying
11-4 the representations contained in a registration statement required
11-5 by this Act.
11-6 (b) A public safety organization, independent promoter,
11-7 public safety publication, or solicitor shall provide information
11-8 requested by the attorney general under Subsection (a) of this
11-9 section within 10 working days after the date of the attorney
11-10 general's request.
11-11 (c) Willful failure to provide timely information under this
11-12 section is grounds for bond forfeiture or suspension of
11-13 registration.
11-14 SECTION 12. CRIMINAL PENALTIES. (a) A person commits an
11-15 offense if the person knowingly violates this Act.
11-16 (b) An offense under this Act is a Class A misdemeanor.
11-17 (c) A corporation or association may be held criminally
11-18 responsible for conduct by a person acting on its behalf if the
11-19 person's conduct constitutes an offense under this Act and is done
11-20 with the knowledge and approval of the corporation or association.
11-21 SECTION 13. ENFORCEMENT AND INJUNCTION. The attorney
11-22 general may sue in a district court of Travis County for a
11-23 violation of this Act to seek a civil penalty and to enjoin a
11-24 person from violating this Act. The attorney general shall notify
11-25 the defendant of the alleged prohibited conduct not later than the
11-26 seventh day before the date the suit is filed unless the attorney
11-27 general intends to request that the court issue a temporary
12-1 restraining order, in which event notice is not required.
12-2 SECTION 14. CIVIL PENALTIES. (a) A person who has been
12-3 found in violation of this Act or any injunction issued under
12-4 Section 13 of this Act is liable to the state for a civil penalty
12-5 of not more than $2,500 for a single violation or cumulatively of
12-6 not more than $10,000 for all of the violations. If the violator
12-7 has filed a bond under this Act, the suit may be brought against
12-8 the bond.
12-9 (b) A public safety organization, independent promoter, or
12-10 public safety publication that fails to timely file the information
12-11 required by this Act or that files information required by this Act
12-12 that is found to contain material misrepresentation may not use a
12-13 solicitor until it provides or corrects the information.
12-14 SECTION 15. SERVICE ON ATTORNEY GENERAL AS AGENT FOR SERVICE
12-15 OF PROCESS. Any service of process or pleading served on the
12-16 attorney general as the agent for a nonresident solicitor, public
12-17 safety organization, independent promoter, or public safety
12-18 organization must be served on the attorney general in triplicate.
12-19 The attorney general shall file one copy in the attorney general's
12-20 office and immediately forward the other copies by certified mail,
12-21 return receipt requested, to the address of the nonresident, as
12-22 shown on the nonresident's registration statement. Service on the
12-23 attorney general shall be returnable in not less than 30 days.
12-24 SECTION 16. LOCAL ORDINANCE. This Act preempts and
12-25 supersedes any municipal ordinance applicable to public safety
12-26 organizations, independent promoters, public safety publications,
12-27 solicitors, or solicitations pertaining to those persons.
13-1 SECTION 17. REPEALER. Chapter 1054, Acts of the 70th
13-2 Legislature, Regular Session, 1987 (Article 9023a, Vernon's Texas
13-3 Civil Statutes), is repealed.
13-4 SECTION 18. TRANSITION. (a) The change in law made by this
13-5 Act applies only to an offense committed on or after the effective
13-6 date of this Act. For purposes of this section, an offense is
13-7 committed before the effective date of this Act if any element of
13-8 the offense occurs before the effective date.
13-9 (b) An offense committed before the effective date of this
13-10 Act is covered by the law in effect when the offense was committed,
13-11 and the former law is continued in effect for that purpose.
13-12 SECTION 19. EFFECTIVE DATE. This Act takes effect September
13-13 1, 1993.
13-14 SECTION 20. EMERGENCY. The importance of this legislation
13-15 and the crowded condition of the calendars in both houses create an
13-16 emergency and an imperative public necessity that the
13-17 constitutional rule requiring bills to be read on three several
13-18 days in each house be suspended, and this rule is hereby suspended.