1-1 By: Blackwood (Senate Sponsor - Lucio) H.B. No. 712
1-2 (In the Senate - Received from the House April 20, 1993;
1-3 April 21, 1993, read first time and referred to Committee on
1-4 Economic Development; May 5, 1993, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 9, Nays
1-6 0; May 5, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Parker x
1-10 Lucio x
1-11 Ellis x
1-12 Haley x
1-13 Harris of Dallas x
1-14 Harris of Tarrant x
1-15 Leedom x
1-16 Madla x
1-17 Rosson x
1-18 Shapiro x
1-19 Wentworth x
1-20 COMMITTEE SUBSTITUTE FOR H.B. No. 712 By: Lucio
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to solicitation by public safety organizations, public
1-24 safety publications, and certain independent promoters; providing
1-25 criminal and civil penalties.
1-26 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-27 SECTION 1. DEFINITIONS. In this Act:
1-28 (1) "Independent promoter" means a person conducting
1-29 an independent promotion.
1-30 (2) "Independent promotion" means an appeal for a
1-31 donation or the sale of tickets or advertising by a person that is
1-32 not affiliated with a public safety organization in the name of
1-33 public safety or in a name or cause associated with public safety.
1-34 (3) "Law enforcement personnel" means employees of
1-35 government law enforcement agencies who are commissioned peace
1-36 officers.
1-37 (4) "Person" includes an individual, corporation,
1-38 organization, business trust, partnership, association, and any
1-39 other legal entity.
1-40 (5) "Public safety organization" means a
1-41 nongovernmental organization that uses in its name, in a
1-42 publication of the organization, in a solicitation for
1-43 contributions to the organization, for membership in the
1-44 organization, or to purchase advertising in a publication of the
1-45 organization, or in a solicitation to purchase products or tickets
1-46 to an event sponsored by or for the benefit of the organization by
1-47 a solicitor, the term "officer," "peace officer," "police officer,"
1-48 "police," "law enforcement," "reserve officer," "deputy," "deputy
1-49 sheriff," "constable," "deputy constable," "fireman," "fire
1-50 fighter," "volunteer fireman," "emergency medical service
1-51 provider," "civilian employee," or any other term in a manner that
1-52 reasonably implies that the organization is composed of law
1-53 enforcement or public safety personnel or that a contribution,
1-54 purchase, or membership will benefit public safety personnel.
1-55 (6) "Public safety personnel" means employees or
1-56 volunteers of a public safety organization, including fire
1-57 fighters, emergency medical service providers, or civilian
1-58 employees of a public safety organization.
1-59 (7) "Public safety publication" means a
1-60 nongovernmental publication with a name that includes the term
1-61 "officer," "peace officer," "police officer," "police," "law
1-62 enforcement," "reserve officer," "deputy," "deputy sheriff,"
1-63 "constable," "deputy constable," "fireman," "fire fighter,"
1-64 "volunteer fireman," "emergency medical service provider,"
1-65 "civilian employee," or any other term in a manner that reasonably
1-66 implies that the publication is published by or benefits public
1-67 safety.
1-68 (8) "Solicitor" means a person who contracts for or
2-1 receives monetary compensation for providing solicitation services
2-2 on behalf of a public safety organization, independent promoter, or
2-3 public safety publication and who solicits:
2-4 (A) contributions in person, by telephone, by
2-5 electronic media, or by mail;
2-6 (B) membership in a public safety organization
2-7 from individuals who are not employed by a public safety agency of
2-8 the United States, this state, or a political subdivision of this
2-9 state;
2-10 (C) the purchase of advertising; or
2-11 (D) the purchase of goods, services, or tickets
2-12 to an event sponsored by or for the benefit of a public safety
2-13 organization or for the cause of public safety.
2-14 SECTION 2. REGISTRATION REQUIRED. (a) A public safety
2-15 organization, independent promoter, or public safety publication
2-16 may not solicit unless the public safety organization, independent
2-17 promoter, or public safety publication has filed a registration
2-18 statement as required by Section 4 of this Act and has paid a
2-19 registration fee as required by Section 5 of this Act.
2-20 (b) A public safety organization, independent promoter, or
2-21 public safety publication may not use a solicitor unless the
2-22 solicitor has filed a registration statement and paid the
2-23 registration fee as required by Section 6 of this Act and has filed
2-24 and maintains a bond as required by Section 7 of this Act.
2-25 (c) A person may not act as solicitor for a public safety
2-26 organization, independent promoter, or public safety publication
2-27 unless the person has filed a registration statement as required by
2-28 Section 6 of this Act and has filed and maintains a bond as
2-29 required by Section 7 of this Act.
2-30 SECTION 3. ELIGIBILITY. (a) A public safety organization
2-31 is eligible to register under Section 4 of this Act and use a
2-32 solicitor if the organization is a bona fide membership
2-33 organization that consists of members:
2-34 (1) who are individuals;
2-35 (2) of whom at least five percent or 500 members,
2-36 whichever is less, are employed as law enforcement personnel or
2-37 public safety personnel by a public safety agency of the United
2-38 States, this state, or a political subdivision of this state; and
2-39 (3) who signed written membership agreements with the
2-40 organization and paid an annual membership fee of not less than $10
2-41 a member.
2-42 (b) An independent promoter is eligible to register under
2-43 Section 4 of this Act and use a solicitor if a full disclosure is
2-44 made in accordance with this Act.
2-45 SECTION 4. REGISTRATION STATEMENT FOR PUBLIC SAFETY
2-46 ORGANIZATION, INDEPENDENT PROMOTER, AND PUBLIC SAFETY PUBLICATION.
2-47 (a) Before beginning solicitations a public safety organization,
2-48 independent promoter, or public safety publication must have on
2-49 file with the secretary of state for public disclosure a
2-50 registration statement signed by two of its officers or directors
2-51 and if the organization, promoter, or publication is not a resident
2-52 of this state, must have on file with the secretary of state an
2-53 irrevocable written consent appointing the attorney general as
2-54 agent for service of process on the organization, promoter, or
2-55 publication for any action pertaining to a violation of this Act.
2-56 The registration statement must disclose:
2-57 (1) the name, street address, and telephone number of
2-58 the solicitors that are to solicit on behalf of the registering
2-59 entity, if any;
2-60 (2) the name, street address, and telephone number of
2-61 each public safety organization, public safety publication, or fund
2-62 on behalf of which all or part of the contributions will be used,
2-63 or if there is no organization, publication, or fund, a statement
2-64 describing the manner in which the contributions will be used;
2-65 (3) a statement of whether the registering entity or
2-66 fund for which the contributions are to be solicited has a
2-67 charitable tax exemption under both federal and state law;
2-68 (4) the name and public safety agency or former agency
2-69 of each active and retired public safety officer who serves on the
2-70 board of directors or governing body of the registering entity, if
3-1 any;
3-2 (5) the number of members and the percentage of
3-3 members who are active and retired public safety officers of the
3-4 United States, this state, or a political subdivision of this
3-5 state, as determined on December 31 of the year preceding the year
3-6 in which the registration is made and for which the contributions
3-7 are solicited, if the registering entity is a public safety
3-8 organization;
3-9 (6) the name of the local chapter, lodge, association,
3-10 or group of licensed public safety officers of the public safety
3-11 organization for which contributions are to be solicited, if the
3-12 registering entity is a public safety organization;
3-13 (7) a copy of the most recent tax or informational
3-14 return filed with the Internal Revenue Service by the registering
3-15 entity;
3-16 (8) the amount of funds collected during the previous
3-17 year by the registering entity through solicitations of nonmembers
3-18 of the public safety organization for which the funds were
3-19 collected and the amount of funds that are paid as expenses to
3-20 maintain the solicitation operation;
3-21 (9) if known or projected, the amount of funds
3-22 expected to be collected during the year of filing by the
3-23 registering entity through solicitations of nonmembers described by
3-24 Subdivision (8) of this subsection;
3-25 (10) a copy of any contract or agreement between the
3-26 registering entity and a solicitor; and
3-27 (11) if the registering entity is a public safety
3-28 publication, information on:
3-29 (A) the total number of copies of each issue of
3-30 the publication to be printed;
3-31 (B) the frequency of the publication; and
3-32 (C) the date and circulation of the most recent
3-33 issue of the publication.
3-34 (b) A public safety organization, independent promoter, or
3-35 public safety publication that has filed a registration statement
3-36 under Subsection (a) of this section and that continues to make
3-37 solicitations through a solicitor shall file an updated statement
3-38 with the secretary of state on or before January 15 of each year
3-39 during which a solicitation will occur.
3-40 (c) A public safety organization, independent promoter, or
3-41 public safety publication that has filed a registration statement
3-42 under Subsection (a) of this section shall file an updated
3-43 statement with the secretary of state within 30 days after the date
3-44 of a change of street address, phone number, or name.
3-45 SECTION 5. REGISTRATION FEE FOR PUBLIC SAFETY ORGANIZATION,
3-46 INDEPENDENT PROMOTER, OR PUBLIC SAFETY PUBLICATION. (a) Except as
3-47 provided by Subsection (b) of this section, a public safety
3-48 organization or independent promoter that registers under Section 4
3-49 of this Act shall pay an annual $250 registration fee to the
3-50 secretary of state.
3-51 (b) A public safety organization that is composed of members
3-52 who are volunteer fire fighters for a local political subdivision
3-53 and that solicits only in the area of the fire fighters'
3-54 jurisdiction is not required to pay a registration fee to register
3-55 under Section 4 of this Act. This subsection does not apply to a
3-56 statewide association of volunteer fire fighters.
3-57 SECTION 6. SOLICITOR REGISTRATION STATEMENT AND FEE.
3-58 (a) Before beginning solicitations for a public safety
3-59 organization, independent promoter, or public safety publication, a
3-60 solicitor must have on file with the secretary of state for public
3-61 disclosure a registration statement containing:
3-62 (1) the name, street and mailing address, and
3-63 telephone number of the solicitor;
3-64 (2) the name, street and mailing address, and
3-65 telephone number of each public safety organization, independent
3-66 promoter, or public safety publication on whose behalf the
3-67 solicitor solicits or will solicit in this state; and
3-68 (3) if the solicitor is not a resident of this state,
3-69 an irrevocable written consent appointing the attorney general as
3-70 agent for service of process on the solicitor for any action
4-1 pertaining to a violation of this Act.
4-2 (b) The registration statement required by Subsection (a) of
4-3 this section must be accompanied by a registration fee in the
4-4 amount of $500 and a bond as required by Section 7 of this Act.
4-5 (c) A solicitor that has filed a registration statement
4-6 under Subsection (a) of this section shall file an updated
4-7 statement and renewal fee in the amount of $500 with the secretary
4-8 of state on or before January 15 of each year during which the
4-9 solicitor will solicit on behalf of a public safety organization,
4-10 independent promoter, or public safety publication.
4-11 (d) A solicitor that has filed a registration statement
4-12 under Subsection (a) of this section shall file an updated
4-13 statement with the secretary of state within 30 days after the date
4-14 of a change of street address, mailing address, phone number, or
4-15 name.
4-16 SECTION 7. SOLICITOR BOND. (a) A solicitor shall post a
4-17 surety bond with the secretary of state in the amount of $10,000
4-18 issued by a surety company authorized to do business in this state.
4-19 (b) The bond must be payable to the state and conditioned on
4-20 compliance with this Act.
4-21 SECTION 8. DISCLOSURE REQUIRED. A disclosure shall be given
4-22 to each resident, orally or in writing, before the resident
4-23 delivers any consideration to a public safety organization,
4-24 independent promoter, public safety publication, or solicitor. The
4-25 disclosure, if given in writing, must be in contrasting eight-point
4-26 type or larger. A disclosure must include:
4-27 (1) the name of the public safety organization as
4-28 registered under Section 4 of this Act, if a public safety
4-29 organization is involved;
4-30 (2) an express statement that the promotion is
4-31 independent of affiliation with any public safety organization, if
4-32 an independent promoter is involved;
4-33 (3) the name of the solicitor, if one has been
4-34 employed as part of the solicitation;
4-35 (4) a general statement as to how the net funds
4-36 received will be used; and
4-37 (5) the name, street address, and statewide hotline
4-38 number by which a resident may obtain additional information on the
4-39 public safety organization, independent promoter, public safety
4-40 publication, or solicitor from the secretary of state.
4-41 SECTION 9. SOLICITATION INFORMATION HOTLINE. The secretary
4-42 of state shall establish and operate a toll-free telephone line
4-43 known as Solicitation Information Hotline. A member of the public
4-44 may telephone the hotline number to:
4-45 (1) obtain information concerning a public safety
4-46 organization, independent promoter, public safety publication, or
4-47 solicitor that has filed a registration statement with the
4-48 secretary of state under this Act; or
4-49 (2) report an alleged violation of this Act by a
4-50 public safety organization, independent promoter, public safety
4-51 publication, or solicitor.
4-52 SECTION 10. PROHIBITED PRACTICES. A person may not commit
4-53 an unfair or deceptive act or practice in the conduct of
4-54 solicitations for a public safety organization, independent
4-55 promoter, or public safety publication, including:
4-56 (1) using any representation that implies that the
4-57 contribution is for or on behalf of a public safety agency or a
4-58 public safety organization, or using any emblem, device, or printed
4-59 matter belonging to or associated with a public safety agency or
4-60 organization, unless authorized in writing to do so by the agency
4-61 or organization;
4-62 (2) using a name, symbol, or statement that is similar
4-63 to that used by a public safety agency or organization in a manner
4-64 that is intended to confuse or mislead a person being solicited;
4-65 (3) knowingly representing or implying that the
4-66 proceeds of the solicitation are being used for a purpose other
4-67 than the purpose for which the funds are actually used;
4-68 (4) representing or implying that the solicitor is a
4-69 peace officer or member of a public safety agency or public safety
4-70 organization if the solicitor is not;
5-1 (5) using or exploiting the fact of filing with the
5-2 secretary of state in a manner that leads any person to believe
5-3 that filing in any manner constitutes an endorsement or approval of
5-4 the state;
5-5 (6) knowingly filing incomplete, false, or misleading
5-6 information in any document required to be filed with the secretary
5-7 of state under this Act;
5-8 (7) soliciting for a public safety organization,
5-9 independent promoter, public safety publication, or cause by
5-10 representing that those who respond affirmatively to the
5-11 solicitation will receive favored treatment by public safety
5-12 personnel;
5-13 (8) collecting a contribution or membership fee
5-14 solicited at a person's residence by an in-person or telephone
5-15 solicitation through any means other than payment through the
5-16 United States mail or parcel post courier; or
5-17 (9) soliciting for a public safety organization in a
5-18 county in which members of the public safety organization do not
5-19 have jurisdiction.
5-20 SECTION 11. AUDIT POWERS OF ATTORNEY GENERAL. (a) The
5-21 attorney general may make a written request for information from a
5-22 public safety organization, independent promoter, public safety
5-23 publication, or solicitor for the purpose of auditing or verifying
5-24 the representations contained in a registration statement required
5-25 by this Act.
5-26 (b) A public safety organization, independent promoter,
5-27 public safety publication, or solicitor shall provide information
5-28 requested by the attorney general under Subsection (a) of this
5-29 section within 10 working days after the date of the attorney
5-30 general's request.
5-31 (c) Willful failure to provide timely information under this
5-32 section is grounds for bond forfeiture or suspension of
5-33 registration.
5-34 SECTION 12. CRIMINAL PENALTIES. (a) A person commits an
5-35 offense if the person knowingly violates this Act.
5-36 (b) An offense under this Act is a Class A misdemeanor.
5-37 (c) A corporation or association may be held criminally
5-38 responsible for conduct by a person acting on its behalf if the
5-39 person's conduct constitutes an offense under this Act and is done
5-40 with the knowledge and approval of the corporation or association.
5-41 SECTION 13. ENFORCEMENT AND INJUNCTION. The attorney
5-42 general may sue in a district court of Travis County for a
5-43 violation of this Act to seek a civil penalty and to enjoin a
5-44 person from violating this Act. The attorney general shall notify
5-45 the defendant of the alleged prohibited conduct not later than the
5-46 seventh day before the date the suit is filed unless the attorney
5-47 general intends to request that the court issue a temporary
5-48 restraining order, in which event notice is not required.
5-49 SECTION 14. CIVIL PENALTIES. (a) A person who has been
5-50 found in violation of this Act or any injunction issued under
5-51 Section 13 of this Act is liable to the state for a civil penalty
5-52 of not more than $2,500 for a single violation or cumulatively of
5-53 not more than $10,000 for all of the violations. If the violator
5-54 has filed a bond under this Act, the suit may be brought against
5-55 the bond.
5-56 (b) A public safety organization, independent promoter, or
5-57 public safety publication that fails to timely file the information
5-58 required by this Act or that files information required by this Act
5-59 that is found to contain material misrepresentation may not use a
5-60 solicitor until it provides or corrects the information.
5-61 SECTION 15. SERVICE ON ATTORNEY GENERAL AS AGENT FOR SERVICE
5-62 OF PROCESS. Any service of process or pleading served on the
5-63 attorney general as the agent for a nonresident solicitor, public
5-64 safety organization, independent promoter, or public safety
5-65 publication must be served on the attorney general in triplicate.
5-66 The attorney general shall file one copy in the attorney general's
5-67 office and immediately forward the other copies by certified mail,
5-68 return receipt requested, to the address of the nonresident, as
5-69 shown on the nonresident's registration statement. Service on the
5-70 attorney general shall be returnable in not less than 30 days.
6-1 SECTION 16. LOCAL ORDINANCE. This Act preempts and
6-2 supersedes any municipal ordinance applicable to public safety
6-3 organizations, independent promoters, public safety publications,
6-4 solicitors, or solicitations pertaining to those persons if those
6-5 persons are registered under this Act.
6-6 SECTION 17. REPEALER. Chapter 1054, Acts of the 70th
6-7 Legislature, Regular Session, 1987 (Article 9023a, Vernon's Texas
6-8 Civil Statutes), is repealed.
6-9 SECTION 18. TRANSITION. (a) The change in law made by this
6-10 Act applies only to an offense committed on or after the effective
6-11 date of this Act. For purposes of this section, an offense is
6-12 committed before the effective date of this Act if any element of
6-13 the offense occurs before the effective date.
6-14 (b) An offense committed before the effective date of this
6-15 Act is covered by the law in effect when the offense was committed,
6-16 and the former law is continued in effect for that purpose.
6-17 SECTION 19. EFFECTIVE DATE. This Act takes effect September
6-18 1, 1993.
6-19 SECTION 20. EMERGENCY. The importance of this legislation
6-20 and the crowded condition of the calendars in both houses create an
6-21 emergency and an imperative public necessity that the
6-22 constitutional rule requiring bills to be read on three several
6-23 days in each house be suspended, and this rule is hereby suspended.
6-24 * * * * *
6-25 Austin,
6-26 Texas
6-27 May 5, 1993
6-28 Hon. Bob Bullock
6-29 President of the Senate
6-30 Sir:
6-31 We, your Committee on Economic Development to which was referred
6-32 H.B. No. 712, have had the same under consideration, and I am
6-33 instructed to report it back to the Senate with the recommendation
6-34 that it do not pass, but that the Committee Substitute adopted in
6-35 lieu thereof do pass and be printed.
6-36 Parker,
6-37 Chairman
6-38 * * * * *
6-39 WITNESSES
6-40 FOR AGAINST ON
6-41 ___________________________________________________________________
6-42 Name: Jim Lyle x
6-43 Representing: TX Municipal Police Assoc.
6-44 City: Austin
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6-46 Name: Chuck Rice x
6-47 Representing: TABCOA
6-48 City: Austin
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