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.