73R6812 LJD-F
By Blackwood H.B. No. 712
Substitute the following for H.B. No. 712:
By Oakley C.S.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," "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 peace officers by a law
4-6 enforcement or public safety agency of the United States, this
4-7 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 disclosing:
4-21 (1) the name, street address, and telephone number of
4-22 the solicitors that are to solicit on behalf of the registering
4-23 entity, if any;
4-24 (2) the name, street address, and telephone number of
4-25 each public safety organization, public safety publication, or fund
4-26 on behalf of which all or part of the contributions will be used,
4-27 or if there is no organization, publication, or fund, a statement
5-1 describing the manner in which the contributions will be used;
5-2 (3) a statement of whether the registering entity or
5-3 fund for which the contributions are to be solicited has a
5-4 charitable tax exemption under both federal and state law;
5-5 (4) the name and public safety agency or former agency
5-6 of each active and retired public safety officer who serves on the
5-7 board of directors or governing body of the registering entity, if
5-8 any;
5-9 (5) the number of members and the percentage of
5-10 members who are active and retired public safety officers of the
5-11 United States, this state, or a political subdivision of this
5-12 state, as determined on December 31 of the year preceding the year
5-13 in which the registration is made and for which the contributions
5-14 are solicited, if the registering entity is a public safety
5-15 organization;
5-16 (6) the name of the local chapter, lodge, association,
5-17 or group of licensed public safety officers of the public safety
5-18 organization for which contributions are to be solicited, if the
5-19 registering entity is a public safety organization;
5-20 (7) a copy of the most recent tax or informational
5-21 return filed with the Internal Revenue Service by the registering
5-22 entity;
5-23 (8) the amount of funds collected during the previous
5-24 year by the registering entity through solicitations of nonmembers
5-25 of the public safety organization for which the funds were
5-26 collected and the amount of funds that are paid as expenses to
5-27 maintain the solicitation operation;
6-1 (9) if known or projected, the amount of funds
6-2 expected to be collected during the year of filing by the
6-3 registering entity through solicitations of nonmembers described by
6-4 Subdivision (8) of this subsection;
6-5 (10) a copy of any contract or agreement between the
6-6 registering entity and a solicitor; and
6-7 (11) if the registering entity is a public safety
6-8 publication, information on:
6-9 (A) the total number of copies of each issue of
6-10 the publication to be printed;
6-11 (B) the frequency of the publication; and
6-12 (C) the date and circulation of the most recent
6-13 issue of the publication.
6-14 (b) A public safety organization, independent promoter, or
6-15 public safety publication that has filed a registration statement
6-16 under Subsection (a) of this section and that continues to make
6-17 solicitations through a solicitor shall file an updated statement
6-18 with the secretary of state on or before January 15 of each year
6-19 during which a solicitation will occur.
6-20 (c) A public safety organization, independent promoter, or
6-21 public safety publication that has filed a registration statement
6-22 under Subsection (a) of this section shall file an updated
6-23 statement with the secretary of state within 30 days after the date
6-24 of a change of street address, phone number, or name.
6-25 SECTION 5. REGISTRATION FEE FOR PUBLIC SAFETY ORGANIZATION,
6-26 INDEPENDENT PROMOTER, OR PUBLIC SAFETY PUBLICATION. A public
6-27 safety organization or independent promoter that registers under
7-1 Section 4 of this Act shall pay an annual $250 registration fee to
7-2 the secretary of state.
7-3 SECTION 6. SOLICITOR REGISTRATION STATEMENT AND FEE. (a)
7-4 Before beginning solicitations for a public safety organization,
7-5 independent promoter, or public safety publication, a solicitor
7-6 must have on file with the secretary of state for public disclosure
7-7 a registration statement containing:
7-8 (1) the name, street and mailing address, and
7-9 telephone number of the solicitor; and
7-10 (2) the name, street and mailing address, and
7-11 telephone number of each public safety organization, independent
7-12 promoter, or public safety publication on whose behalf the
7-13 solicitor solicits or will solicit in this state.
7-14 (b) The registration statement required by Subsection (a) of
7-15 this section must be accompanied by a registration fee in the
7-16 amount of $500 and a bond as required by Section 7 of this Act.
7-17 (c) A solicitor that has filed a registration statement
7-18 under Subsection (a) of this section shall file an updated
7-19 statement and renewal fee in the amount of $500 with the secretary
7-20 of state on or before January 15 of each year during which the
7-21 solicitor will solicit on behalf of a public safety organization,
7-22 independent promoter, or public safety publication.
7-23 (d) A solicitor that has filed a registration statement
7-24 under Subsection (a) of this section shall file an updated
7-25 statement with the secretary of state within 30 days after the date
7-26 of a change of street address, mailing address, phone number, or
7-27 name.
8-1 SECTION 7. SOLICITOR BOND. (a) A solicitor shall post a
8-2 surety bond with the secretary of state in the amount of $10,000
8-3 issued by a surety company authorized to do business in this state.
8-4 (b) The bond must be payable to the state and conditioned on
8-5 compliance with this Act.
8-6 SECTION 8. DISCLOSURE REQUIRED. A disclosure shall be given
8-7 to each resident, orally or in writing, before the resident
8-8 delivers any consideration to a public safety organization,
8-9 independent promoter, public safety publication, or solicitor. The
8-10 disclosure, if given in writing, must be in contrasting eight-point
8-11 type or larger. A disclosure must include:
8-12 (1) the name of the public safety organization as
8-13 registered under Section 4 of this Act, if a public safety
8-14 organization is involved;
8-15 (2) an express statement that the promotion is
8-16 independent of affiliation with any public safety organization, if
8-17 an independent promoter is involved;
8-18 (3) the name of the solicitor, if one has been
8-19 employed as part of the solicitation;
8-20 (4) a general statement as to how the net funds
8-21 received will be used; and
8-22 (5) the name, street address, and statewide hotline
8-23 number by which a resident may obtain additional information on the
8-24 public safety organization, independent promoter, public safety
8-25 publication, or solicitor from the secretary of state.
8-26 SECTION 9. SOLICITATION INFORMATION HOTLINE. The secretary
8-27 of state shall establish and operate a toll-free telephone line
9-1 known as Solicitation Information Hotline. A member of the public
9-2 may telephone the hotline number to:
9-3 (1) obtain information concerning a public safety
9-4 organization, independent promoter, public safety publication, or
9-5 solicitor that has filed a registration statement with the
9-6 secretary of state under this Act; or
9-7 (2) report an alleged violation of this Act by a
9-8 public safety organization, independent promoter, public safety
9-9 publication, or solicitor.
9-10 SECTION 10. PROHIBITED PRACTICES. A person may not commit
9-11 an unfair or deceptive act or practice in the conduct of
9-12 solicitations for a public safety organization, independent
9-13 promoter, or public safety publication, including:
9-14 (1) using any representation that implies that the
9-15 contribution is for or on behalf of a public safety agency or a
9-16 public safety organization, or using any emblem, device, or printed
9-17 matter belonging to or associated with a public safety agency or
9-18 organization, unless authorized in writing to do so by the agency
9-19 or organization;
9-20 (2) using a name, symbol, or statement that is similar
9-21 to that used by a public safety agency or organization in a manner
9-22 that is intended to confuse or mislead a person being solicited;
9-23 (3) knowingly representing or implying that the
9-24 proceeds of the solicitation are being used for a purpose other
9-25 than the purpose for which the funds are actually used;
9-26 (4) representing or implying that the solicitor is a
9-27 peace officer or member of a public safety agency or public safety
10-1 organization if the solicitor is not;
10-2 (5) using or exploiting the fact of filing with the
10-3 secretary of state in a manner that leads any person to believe
10-4 that filing in any manner constitutes an endorsement or approval of
10-5 the state;
10-6 (6) knowingly filing incomplete, false, or misleading
10-7 information in any document required to be filed with the secretary
10-8 of state under this Act;
10-9 (7) soliciting for a public safety organization,
10-10 independent promoter, public safety publication, or cause by
10-11 representing that those who respond affirmatively to the
10-12 solicitation will receive favored treatment by public safety
10-13 personnel;
10-14 (8) collecting a contribution or membership fee
10-15 solicited at a person's residence by an in-person or telephone
10-16 solicitation through any means other than payment through the
10-17 United States mail or parcel post courier; or
10-18 (9) soliciting for a public safety organization in a
10-19 county in which members of the public safety organization do not
10-20 have jurisdiction.
10-21 SECTION 11. AUDIT POWERS OF ATTORNEY GENERAL. (a) The
10-22 attorney general may make a written request for information from a
10-23 public safety organization, independent promoter, public safety
10-24 publication, or solicitor for the purpose of auditing or verifying
10-25 the representations contained in a registration statement required
10-26 by this Act.
10-27 (b) A public safety organization, independent promoter,
11-1 public safety publication, or solicitor shall provide information
11-2 requested by the attorney general under Subsection (a) of this
11-3 section within 10 working days after the date of the attorney
11-4 general's request.
11-5 (c) Willful failure to provide timely information under this
11-6 section is grounds for bond forfeiture or suspension of
11-7 registration.
11-8 SECTION 12. CRIMINAL PENALTIES. (a) A person commits an
11-9 offense if the person knowingly violates this Act.
11-10 (b) An offense under this Act is a Class A misdemeanor.
11-11 (c) A corporation or association may be held criminally
11-12 responsible for conduct by a person acting on its behalf if the
11-13 person's conduct constitutes an offense under this Act and is done
11-14 with the knowledge and approval of the corporation or association.
11-15 SECTION 13. ENFORCEMENT AND INJUNCTION. The attorney
11-16 general may sue in a district court of Travis County for a
11-17 violation of this Act to seek a civil penalty and to enjoin a
11-18 person from violating this Act. The attorney general shall notify
11-19 the defendant of the alleged prohibited conduct not later than the
11-20 seventh day before the date the suit is filed unless the attorney
11-21 general intends to request that the court issue a temporary
11-22 restraining order, in which event notice is not required.
11-23 SECTION 14. CIVIL PENALTIES. (a) A person who has been
11-24 found in violation of this Act or any injunction issued under
11-25 Section 13 of this Act is liable to the state for a civil penalty
11-26 of not more than $2,500 for a single violation or cumulatively of
11-27 not more than $10,000 for all of the violations. If the violator
12-1 has filed a bond under this Act, the suit may be brought against
12-2 the bond.
12-3 (b) A public safety organization, independent promoter, or
12-4 public safety publication that fails to timely file the information
12-5 required by this Act or that files information required by this Act
12-6 that is found to contain material misrepresentation may not use a
12-7 solicitor until it provides or corrects the information.
12-8 SECTION 15. LOCAL ORDINANCE. This Act preempts and
12-9 supersedes any municipal ordinance applicable to public safety
12-10 organizations, independent promoters, public safety publications,
12-11 solicitors, or solicitations pertaining to those persons.
12-12 SECTION 16. REPEALER. Chapter 1054, Acts of the 70th
12-13 Legislature, Regular Session, 1987 (Article 9023a, Vernon's Texas
12-14 Civil Statutes), is repealed.
12-15 SECTION 17. TRANSITION. (a) The change in law made by this
12-16 Act applies only to an offense committed on or after the effective
12-17 date of this Act. For purposes of this section, an offense is
12-18 committed before the effective date of this Act if any element of
12-19 the offense occurs before the effective date.
12-20 (b) An offense committed before the effective date of this
12-21 Act is covered by the law in effect when the offense was committed,
12-22 and the former law is continued in effect for that purpose.
12-23 SECTION 18. EFFECTIVE DATE. This Act takes effect September
12-24 1, 1993.
12-25 SECTION 19. EMERGENCY. The importance of this legislation
12-26 and the crowded condition of the calendars in both houses create an
12-27 emergency and an imperative public necessity that the
13-1 constitutional rule requiring bills to be read on three several
13-2 days in each house be suspended, and this rule is hereby suspended.