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