By: Blackwood H.B. No. 712
73R2618 LJD-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the use of a solicitor by certain law enforcement
1-3 organizations; providing criminal and civil penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 1054, Acts of the 70th Legislature,
1-6 Regular Session, 1987 (Article 9023a, Vernon's Texas Civil
1-7 Statutes), is amended to read as follows:
1-8 Sec. 1. DEFINITIONS. In this Act:
1-9 (1) "Law enforcement organization" means <(a) A
1-10 person who makes a solicitation of contributions in person, by
1-11 telephone, or by mail, representing> a nongovernmental organization
1-12 that uses in the name of the organization, <or> in a publication of
1-13 the organization, or in a solicitation by a solicitor the term
1-14 "officer," "peace officer," "police officer," "police," "law
1-15 enforcement," "reserve officer," "deputy," "deputy sheriff,"
1-16 "constable," "deputy constable," or any other term in a manner that
1-17 reasonably implies that the organization is composed of law
1-18 enforcement or public safety personnel or that a contribution,
1-19 purchase, or membership will benefit law enforcement or public
1-20 safety personnel.
1-21 (2) "Solicitor" means a person who receives monetary
1-22 compensation for the person's solicitation services on behalf of a
1-23 law enforcement organization and who:
1-24 (A) solicits a contribution of financial support
2-1 for a law enforcement organization or the purchase of goods or
2-2 services from a law enforcement organization in person, by
2-3 telephone, or by mail; or
2-4 (B) solicits memberships in a law enforcement
2-5 organization from individuals who are not employed by a law
2-6 enforcement agency of the United States, this state, or a political
2-7 subdivision of this state<, shall notify the person solicited,
2-8 verbally if the solicitation is in person, and in any printed
2-9 matter used by the solicitor to seek or collect contributions that
2-10 the person may contact the attorney general to examine the
2-11 information required to be disclosed by this Act>.
2-12 (3) "Person" includes an individual, corporation,
2-13 organization, business trust, partnership, association, and any
2-14 other legal entity.
2-15 Sec. 2. REGISTRATIONS REQUIRED. (a) A law enforcement
2-16 organization may not use a solicitor unless the law enforcement
2-17 organization has filed a registration statement as required by
2-18 Section 4 of this Act and filed and maintains a bond as required by
2-19 Section 5 of this Act.
2-20 (b) A law enforcement organization may not use a solicitor
2-21 unless the solicitor has filed a registration statement as required
2-22 by Section 6 of this Act and has filed and maintains a bond as
2-23 required by Section 7 of this Act.
2-24 (c) A person may not act as a solicitor for a law
2-25 enforcement organization unless the person has filed a registration
2-26 statement as required by Section 6 of this Act and has filed and
2-27 maintains a bond as required by Section 7 of this Act.
3-1 Sec. 3. ELIGIBILITY. (a) A law enforcement organization is
3-2 eligible to register under Section 4 of this Act and use a
3-3 solicitor if the organization:
3-4 (1) consists of members:
3-5 (A) who are individuals;
3-6 (B) of whom at least five percent or 500,
3-7 whichever is less, are employed as peace officers by a law
3-8 enforcement or public safety agency of the United States, this
3-9 state, or a political subdivision of this state; and
3-10 (C) who signed written membership agreements
3-11 with the organization and paid an annual membership fee of not less
3-12 than $10 per member; and
3-13 (2) has been in existence for at least one year.
3-14 (b) A law enforcement organization is not eligible to use a
3-15 solicitor if the law enforcement organization has forfeited on
3-16 three or more occasions a bond filed under this Act.
3-17 (c) A solicitor is not eligible to solicit on behalf of a
3-18 law enforcement organization if the solicitor has forfeited on
3-19 three or more occasions a bond filed under this Act.
3-20 Sec. 4. LAW ENFORCEMENT ORGANIZATION REGISTRATION STATEMENT.
3-21 (a) <(b)> Before beginning solicitations, a law enforcement
3-22 organization <the solicitor> must have on file with the attorney
3-23 general for public disclosure a registration statement containing
3-24 <the following information>:
3-25 (1) the name, street address, and telephone number of
3-26 each <the> solicitor that solicits on behalf of the law enforcement
3-27 organization;
4-1 (2) the name, street address, and telephone number of
4-2 each law enforcement organization or fund on behalf of which all or
4-3 part of the contributions will be used, or if there is no
4-4 organization or fund, a statement describing the manner in which
4-5 the contributions will be used;
4-6 (3) a statement of whether the law enforcement
4-7 organization or fund for which the contributions are solicited has
4-8 a charitable tax exemption under both federal and state law;
4-9 (4) the name and law enforcement agency of each active
4-10 or retired peace officer who serves on the board of directors or
4-11 governing body of the law enforcement organization or fund for
4-12 which the contributions are solicited, if any;
4-13 (5) the number of members and the percentage of
4-14 members of each law enforcement organization who are active peace
4-15 officers of the United States, this state, or a subdivision of this
4-16 state and the number of members and the percentage of members of
4-17 each law enforcement organization who are retired peace officers of
4-18 the United States, this state, or a subdivision of this state, as
4-19 determined on December 31 of the year preceding the year in which
4-20 the solicitation is made, for which the contributions are
4-21 solicited, if any; <and>
4-22 (6) the names of each local, chapter, lodge,
4-23 association, or group of licensed peace officers that are members
4-24 of the law enforcement organization for which contributions are
4-25 solicited, if any;
4-26 (7) a copy of the Internal Revenue Service Form 990,
4-27 or its successor, the law enforcement organization most recently
5-1 filed with the Internal Revenue Service, if any; and
5-2 (8) the name, address, and telephone number of the
5-3 surety on the bond required by Section 5 of this Act.
5-4 (b) The law enforcement organization shall file the original
5-5 copy of the bond required by Section 5 of this Act with the
5-6 statement required by this section.
5-7 (c) A law enforcement organization that has filed a
5-8 registration statement under Subsection (a) of this section and
5-9 that continues to make solicitations through a solicitor must file
5-10 an updated statement with the attorney general on or before January
5-11 15 of each year during which solicitations will occur.
5-12 Sec. 5. LAW ENFORCEMENT ORGANIZATION BOND. (a) A law
5-13 enforcement organization that uses a solicitor shall post a surety
5-14 bond with the attorney general in the amount of:
5-15 (1) $2,500, if the law enforcement organization
5-16 solicits in not more than one county;
5-17 (2) $5,000, if the law enforcement organization
5-18 solicits in more than one county but fewer than six counties; or
5-19 (3) $10,000, if the law enforcement organization
5-20 solicits in six or more counties.
5-21 (b) The bond must be payable to the state and conditioned on
5-22 compliance with this Act.
5-23 Sec. 6. SOLICITOR REGISTRATION STATEMENT; FEE. (a) Before
5-24 beginning solicitations for a law enforcement organization, a
5-25 solicitor must have on file with the attorney general for public
5-26 disclosure a registration statement containing:
5-27 (1) the name, address, and telephone number of the
6-1 solicitor;
6-2 (2) the name, address, and telephone number of each
6-3 law enforcement organization on whose behalf the solicitor solicits
6-4 or will solicit; and
6-5 (3) the name of any other state in which the solicitor
6-6 is registered as a solicitor and the status of the registration.
6-7 (b) The registration statement required by Subsection (a) of
6-8 this section must be accompanied by a registration fee in the
6-9 amount of $500 and a bond as required by Section 7 of this Act.
6-10 (c) A solicitor that has filed a registration statement
6-11 under Subsection (a) of this section must file an updated statement
6-12 with the attorney general on or before January 15 of each year
6-13 during which the solicitor will solicit on behalf of a law
6-14 enforcement organization.
6-15 Sec. 7. SOLICITOR BOND. (a) A solicitor shall post a
6-16 surety bond with the attorney general in the amount of:
6-17 (1) $2,500, if the solicitor solicits in not more than
6-18 one county;
6-19 (2) $5,000, if the solicitor solicits in more than one
6-20 county but fewer than six counties; or
6-21 (3) $10,000, if the solicitor solicits in six or more
6-22 counties.
6-23 (b) The bond must be payable to the state and conditioned on
6-24 compliance with this Act.
6-25 Sec. 8. DISCLOSURE AT TIME OF SOLICITATION. A solicitor
6-26 shall disclose at the time each solicitation is made, orally if the
6-27 solicitation is in person or by telephone and by printed notice in
7-1 any printed matter distributed by the solicitor, the following
7-2 information: "The Attorney General of Texas has on file important
7-3 information about organizations that seek contributions in the name
7-4 of law enforcement personnel and the number to call about that
7-5 information is the Solicitation Information Hotline, (the number
7-6 maintained by the attorney general)."
7-7 Sec. 9. SOLICITATION INFORMATION HOTLINE. The attorney
7-8 general shall establish and operate a toll-free telephone line
7-9 known as the Solicitation Information Hotline. A member of the
7-10 public may telephone the hotline number to:
7-11 (1) obtain information concerning a law enforcement
7-12 organization or solicitor that is filed with the attorney general
7-13 under this Act; or
7-14 (2) report an alleged violation of this Act by a
7-15 solicitor or a law enforcement organization.
7-16 Sec. 10. PROHIBITED PRACTICES. (a) A solicitor may not
7-17 solicit on behalf of a law enforcement organization in counties
7-18 other than counties in which a member of the law enforcement
7-19 organization has jurisdiction as a peace officer.
7-20 (b) A contribution or membership fee solicited at a person's
7-21 residence in person or by telephone may be collected and paid only
7-22 through the United States mail or parcel post courier.
7-23 (c) A solicitor may not make a materially false or
7-24 misleading statement of fact during a solicitation that would lead
7-25 a reasonable person to believe that proceeds of the solicitation
7-26 are being used or will be used for a purpose other than the purpose
7-27 for which the proceeds are actually used.
8-1 (d) A solicitor or a law enforcement organization may not
8-2 make a material misrepresentation in a registration statement filed
8-3 under this Act.
8-4 (e) For purposes of Subsection (d) of this section,
8-5 overreporting the number of active or retired peace officers that
8-6 are members of the law enforcement organization by more than three
8-7 percent of the organization's total membership is a material
8-8 misrepresentation.
8-9 (f) A solicitor may not retain more than 80 percent of the
8-10 total amount of financial contributions received by the solicitor
8-11 on behalf of a law enforcement organization. A solicitor shall
8-12 deliver not less than 20 percent of the total amount of financial
8-13 contributions received by the solicitor on behalf of a law
8-14 enforcement organization to the organization.
8-15 Sec. 11 <2>. OFFENSES; PENALTIES. (a) A person commits an
8-16 offense if the person knowingly or intentionally violates any
8-17 provision of this Act.
8-18 (b) An offense under this Act is a Class B misdemeanor,
8-19 except that if it be shown that the defendant has been convicted
8-20 previously under this Act, the offense is a Class A misdemeanor.
8-21 (c) A corporation or association may be held criminally
8-22 responsible for conduct by a person acting on its behalf if the
8-23 person's conduct constitutes an offense under this Act.
8-24 (d) It is a defense to prosecution under this section that:
8-25 (1) the defendant is a law enforcement organization;
8-26 (2) the person whose conduct constitutes the offense
8-27 was acting on behalf of a corporation or association with which the
9-1 law enforcement organization had contracted for services; and
9-2 (3) the person committed the conduct without the
9-3 knowledge of the law enforcement organization.
9-4 Sec. 12. AUDIT POWERS OF ATTORNEY GENERAL. (a) The
9-5 attorney general may request reasonable and necessary information
9-6 from a law enforcement organization or a solicitor for the purpose
9-7 of auditing or verifying the representations contained in a
9-8 registration statement required by this Act.
9-9 (b) The attorney general may audit representations made by a
9-10 solicitor during a solicitation to determine whether the
9-11 solicitation complies with this Act.
9-12 Sec. 13. INJUNCTION. The attorney general may sue in a
9-13 district court of Travis County to enjoin a person from violating
9-14 this Act. The attorney general shall notify the defendant of the
9-15 alleged prohibited conduct not later than the seventh day before
9-16 the date the suit is filed, unless the attorney general intends to
9-17 request that the court issue a temporary restraining order, in
9-18 which event notice is not required.
9-19 Sec. 14. CIVIL PENALTIES. (a) A person who violates an
9-20 injunction issued under Section 13 of this Act is liable to the
9-21 state for a civil penalty of not more than $2,500 for a single
9-22 violation and not more than $10,000 for all violations of the
9-23 injunction. The attorney general may bring suit to recover the
9-24 civil penalty in the court that issued the original injunction. If
9-25 the violator has filed a bond under this Act, the suit may be
9-26 brought against the bond.
9-27 (b) A law enforcement organization that fails to timely file
10-1 the information required by this Act or that files information
10-2 required by this Act that is found to contain a material
10-3 misrepresentation forfeits its surety bond to the state and must
10-4 replace the bond to continue to use solicitors.
10-5 Sec. 15. SUIT ON BOND BY INJURED PARTY. (a) A person who
10-6 is injured by a violation of this Act may bring and maintain a suit
10-7 or join in a suit brought by the attorney general to recover
10-8 against a bond filed under this Act. In a suit brought under this
10-9 Act, the court may assess costs of litigation and reasonable
10-10 attorney's fees incurred by a plaintiff other than the attorney
10-11 general or by a defendant who substantially prevails.
10-12 (b) In a suit brought by a private plaintiff and the
10-13 attorney general under this Act, if the amount claimed exceeds the
10-14 amount of the bond, a bond forfeiture first pays the private
10-15 plaintiff's damages and attorney's fees and any remaining amount is
10-16 forfeited to the state.
10-17 (c) Nothing in this Act prevents the attorney general or an
10-18 injured party from suing to recover a contribution obtained by
10-19 misrepresentation or limits other causes of action available to a
10-20 plaintiff by statute or common law.
10-21 Sec. 16. LOCAL ORDINANCES. This Act does not preempt or
10-22 supersede any municipal ordinance applicable to a law enforcement
10-23 organization or a solicitor.
10-24 SECTION 2. (a) The change in law made by this Act applies
10-25 only to an offense committed on or after the effective date of this
10-26 Act. For purposes of this section, an offense is committed before
10-27 the effective date of this Act if any element of the offense occurs
11-1 before the effective date.
11-2 (b) An offense committed before the effective date of this
11-3 Act is covered by the law in effect when the offense was committed,
11-4 and the former law is continued in effect for that purpose.
11-5 SECTION 3. This Act takes effect January 1, 1994.
11-6 SECTION 4. The importance of this legislation and the
11-7 crowded condition of the calendars in both houses create an
11-8 emergency and an imperative public necessity that the
11-9 constitutional rule requiring bills to be read on three several
11-10 days in each house be suspended, and this rule is hereby suspended.