73R9180 E By Coleman H.B. No. 2284 Substitute the following for H.B. No. 2284: By Brady C.S.H.B. No. 2284 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the registration and bonding of and financial reporting 1-3 by commercial solicitors and to the prohibition of deceptive 1-4 practices by commercial solicitors. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Title 2, Business & Commerce Code, is amended by 1-7 adding Chapter 20 to read as follows: 1-8 CHAPTER 20. REGISTRATION, BONDING, REPORTING, AND 1-9 SOLICITATION BY COMMERCIAL SOLICITORS 1-10 Sec. 20.01. SCOPE OF ACT; SHORT TITLE. (a) Except as 1-11 provided by this chapter, this chapter applies to all commercial 1-12 solicitors created, organized, or doing business in Texas that are 1-13 soliciting in Texas for a charitable organization. Solicitation 1-14 from the public in Texas shall be considered doing business in 1-15 Texas. 1-16 (b) This chapter may be cited as the Commercial Solicitors 1-17 Act. 1-18 Sec. 20.02. DEFINITIONS. In this chapter and for purposes 1-19 of this chapter only: 1-20 (1) "Charitable organization" means: 1-21 (A) an organization that is exempt or has 1-22 applied for exemption from federal taxes pursuant to Section 1-23 501(c)(3) of the Internal Revenue Code of 1986; 2-1 (B) an organization that is exempt or has 2-2 applied for exemption from federal taxes pursuant to Section 2-3 501(c)(4), 501(c)(10), or 501(c)(19) of the Internal Revenue Code 2-4 of 1986 if the organization solicits contributions; or 2-5 (C) any other organization which represents 2-6 itself to be established for a charitable purpose, except for 2-7 charitable remainder trusts, charitable lead trusts and pooled 2-8 income funds--contributions to which are deductible under Section 2-9 170, 2055, or 2522 of the Internal Revenue Code of 1986. 2-10 (2) "Charitable purpose" means: 2-11 (A) any purpose described in Section 501(c)(3) 2-12 of the Internal Revenue Code of 1986; or 2-13 (B) any patriotic, social welfare, or other 2-14 benevolent or eleemosynary objective. 2-15 (3) "Commercial solicitor" means a person that for 2-16 compensation and on behalf of a charitable organization solicits 2-17 contributions in this state or employs, procures, or engages any 2-18 other person to solicit contributions for compensation in this 2-19 state. No lawyer, financial planner, financial advisor, planned 2-20 giving consultant, investment counselor, certified public 2-21 accountant, or employee of a financial institution who advises a 2-22 person to make a charitable contribution shall be deemed to be a 2-23 commercial solicitor if, at the time the advice is rendered, the 2-24 advisor is not under contract to solicit and receive in the 2-25 advisor's name contributions for the charitable organization that 3-1 would be the beneficiary if the advice were followed. A bona fide 3-2 salaried director, trustee, officer, employee, or volunteer of a 3-3 charitable organization shall not be deemed to be a commercial 3-4 solicitor. Receipt of prizes or awards by a volunteer for 3-5 solicitation shall not be deemed to be compensation. 3-6 (4) "Contribution" means the grant, promise, or pledge 3-7 of money, credit, property, financial assistance, or other thing of 3-8 any kind or value except for volunteer services. It does not 3-9 include bona fide fees, dues, or assessments paid by members, 3-10 provided that membership is not conferred solely as consideration 3-11 for making a contribution in response to a solicitation. 3-12 (5) "Person" means an individual, partnership, 3-13 corporation, association, or other group, however organized. 3-14 (6)(a) "Solicit" and "solicitation" mean the direct or 3-15 indirect request for a contribution on the plea or representation 3-16 that the contribution, or any portion thereof, will be used for a 3-17 charitable purpose or to benefit a charitable organization. A 3-18 solicitation shall be deemed to have taken place whether or not the 3-19 person making the solicitation receives any contribution. Without 3-20 limiting the scope of the foregoing these words shall include the 3-21 following method of requesting contributions: 3-22 (1) any oral or written request; 3-23 (2) publication of a request in newspapers, on the 3-24 radio or television, or by any telecommunications device or other 3-25 manner of transmitting information to the public; 4-1 (3) the distribution, circulation, posting, or 4-2 publishing of any handbill, written advertisement, or other 4-3 publications; or 4-4 (4) an offering for sale of any advertisement, book, 4-5 card, coupon, membership, merchandise, subscription, flower, candy, 4-6 or other tangible item if any appeal is made for any charitable 4-7 organization or purpose, or if the name of any charitable 4-8 organization is used or referred to in the appeal as an inducement 4-9 or reason for making any such sale. 4-10 (b) The words "solicit" and "solicitation" shall not include 4-11 a request for contributions from persons having some interest in 4-12 the charitable organization, such as prior donors, trustees, 4-13 directors, members, employees, former students, advisory boards, 4-14 volunteers, persons who have used the services of the charitable 4-15 organization, or direct beneficiaries or families of direct 4-16 beneficiaries of the charitable organization. 4-17 Sec. 20.03. REGISTRATION OF COMMERCIAL SOLICITORS. (a) No 4-18 commercial solicitor may solicit contributions in Texas unless the 4-19 commercial solicitor is registered under this chapter. 4-20 (b) The attorney general shall promptly register a 4-21 commercial solicitor that does all of the following: 4-22 (1) submits to the attorney general a completed 4-23 application for registration that contains the following: 4-24 (A) the legal name and any other names used by 4-25 the commercial solicitor; 5-1 (B) the street address or addresses of the 5-2 commercial solicitor; 5-3 (C) the telephone and telefax number, if any, of 5-4 the commercial solicitor; 5-5 (D) the date and state of incorporation; 5-6 (E) if not incorporated, the type of 5-7 organization and date formed; 5-8 (F) a statement as to whether the commercial 5-9 solicitor or any of its directors, officers, agents, or employees 5-10 has been involved in any court or administrative proceeding 5-11 relating to solicitation in any state. The statement shall include 5-12 a description of each proceeding, the state in which the proceeding 5-13 took place, the name of the agency or court, the date of the 5-14 proceeding, and the ultimate outcome of the proceeding; 5-15 (G) a list of all agencies and states where the 5-16 commercial solicitor is registered or has been registered including 5-17 dates of registration, registration numbers, and any other names 5-18 under which the commercial solicitor was or is registered; 5-19 (H) the names, street addresses, and telephone 5-20 numbers of the owners, officers, directors, or trustees of the 5-21 commercial solicitor; 5-22 (I) a statement as to whether any owner, 5-23 officers, directors, or trustees have been convicted of a felony 5-24 and including the state, court, and date of each such conviction; 5-25 (J) the names of each individual responsible for 6-1 custody of funds, distribution of funds, and custody of records and 6-2 of each individual authorized to sign checks; and 6-3 (K) a sworn statement that the information 6-4 included in the registration is true, correct, and complete; 6-5 (2) files with the attorney general a bond that is 6-6 approved under Section 20.04 of this code; and 6-7 (3) pays to the attorney general a $100 registration 6-8 fee. 6-9 (c) The attorney general shall issue a certificate of 6-10 registration to each commercial solicitor that is registered under 6-11 this section. Certificates issued under this subsection expire one 6-12 year from their date of issue. Renewal applications shall be 6-13 submitted to the attorney general on or before the expiration date. 6-14 Renewal applications shall include: 6-15 (1) any changes in the registration applications 6-16 previously provided to the attorney general or a statement 6-17 certifying that there are no changes; 6-18 (2) a $100 renewal fee; and 6-19 (3) evidence satisfactory to the attorney general that 6-20 the commercial solicitor maintains a bond that is approved under 6-21 Section 20.04 of this code. 6-22 (d) Within 10 working days after receiving an application 6-23 for registration or for renewal of a registration under this 6-24 section, the attorney general shall notify the commercial solicitor 6-25 of any deficiencies in the application, bond, or fee payment. 7-1 Sec. 20.04. BOND. At the time of applying for registration, 7-2 a commercial solicitor shall file with the attorney general a bond 7-3 in which the commercial solicitor is the principal obligor in the 7-4 sum of $25,000 with one or more responsible sureties whose 7-5 liability in the aggregate as sureties equals at least that sum. 7-6 The commercial solicitor shall maintain the bond in effect as long 7-7 as the registration is in effect. The bond, which may be in the 7-8 form of a rider to a larger blanket liability bond, shall run to 7-9 the state for any liabilities arising out of a violation of this 7-10 chapter or the rules promulgated under this chapter. 7-11 Sec. 20.05. SOLICITATION NOTICE. Before soliciting on 7-12 behalf of a charitable organization, a commercial solicitor shall 7-13 file with the attorney general a completed solicitation notice that 7-14 includes all of the following: 7-15 (1) the compensation and expenses to be paid to the 7-16 commercial solicitor under the contract described in Section 20.06 7-17 of this code; 7-18 (2) the projected period during which the solicitation 7-19 will take place; 7-20 (3) the street address and telephone number from which 7-21 the solicitation will be conducted; 7-22 (4) the name and street address of each person 7-23 responsible for directing and supervising the conduct of services 7-24 provided by the commercial solicitor under the contract described 7-25 in Section 20.06 of this code; 8-1 (5) a statement of whether the commercial solicitor 8-2 will at any time have custody or control of contributions and, if 8-3 not, a statement identifying, by name and street address, the 8-4 person that will have custody or control of contributions; 8-5 (6) a full and fair description of the charitable 8-6 purpose for which solicitations will be made; 8-7 (7) the signature of an owner, officer, or director of 8-8 the commercial solicitor; and 8-9 (8) written confirmation from an officer or director 8-10 of the charitable organization on whose behalf the commercial 8-11 solicitor is acting that the information contained in the 8-12 solicitation notice is true and complete to the best of the 8-13 officer's or director's knowledge. 8-14 Sec. 20.06. CONTRACT. A commercial solicitor and a 8-15 charitable organization shall enter into a written contract that 8-16 states the respective obligations of the commercial solicitor and 8-17 the charitable organization. The contract shall state the amount 8-18 of the compensation that the commercial solicitor will receive. 8-19 The compensation shall be expressed either as (1) a fixed 8-20 percentage of the gross revenue, or (2) a dollar amount. Any 8-21 expenses to be paid by the charitable organization shall be set 8-22 forth in the contract. 8-23 Sec. 20.07. REPORTING CHANGES. Within 10 working days after 8-24 any material change occurs in any solicitation notice filed with 8-25 the attorney general under Section 20.05 of this code, the 9-1 commercial solicitor shall report the change, in writing, to the 9-2 attorney general. 9-3 Sec. 20.08. FINANCIAL REPORT. Within 90 days after 9-4 completing services under a contract described in Section 20.06 of 9-5 this code and within 90 days after the close of the commercial 9-6 solicitor's fiscal year for any contract described under Section 9-7 20.06 of this code lasting more than one year, the commercial 9-8 solicitor shall account in writing to the charitable organization 9-9 for all contributions received by the commercial solicitor and all 9-10 expenses charged by the commercial solicitor to the charitable 9-11 organization under the contract. The charitable organization shall 9-12 retain the accounting for at least three years and make it 9-13 available to the attorney general upon request. 9-14 Sec. 20.09. DEPOSITING CONTRIBUTIONS. A commercial 9-15 solicitor shall deposit, in its entirety, a contribution of money 9-16 received by the commercial solicitor on behalf of a charitable 9-17 organization in an account at a financial institution, within five 9-18 days after its receipt. The charitable organization shall have 9-19 sole control of all withdrawals from the account. 9-20 Sec. 20.10. RECORD KEEPING. During the period in which a 9-21 contract described in Section 20.06 of this code is in effect and 9-22 for not less than three years after its completion, a commercial 9-23 solicitor shall retain all of the following records: 9-24 (1) the date and amount of the contribution and, if 9-25 known, the name and address of each person contributing; 10-1 (2) the name and street address of each employee or 10-2 agent of the commercial solicitor involved in the solicitation; 10-3 (3) a record of all contributions that are at any time 10-4 in the custody or control of the commercial solicitor; 10-5 (4) a record of all expenses incurred by the 10-6 commercial solicitor that the charitable organization is required 10-7 to pay; and 10-8 (5) a record of the location and account number of 10-9 each financial institution account in which the commercial 10-10 solicitor deposits contributions. 10-11 Sec. 20.11. FALSE, MISLEADING, OR DECEPTIVE ACTS IN 10-12 SOLICITATION PROHIBITED AND REMEDIES PROVIDED. (a) False, 10-13 misleading, or deceptive acts or practices in the conduct of any 10-14 solicitation by a commercial solicitor are hereby declared unlawful 10-15 and are subject to public or private action as provided by 10-16 Subchapter E, Chapter 17, Business & Commerce Code. 10-17 (b) False, misleading, or deceptive acts or practices 10-18 include, but are not limited to, the following acts: 10-19 (1) any act specifically enumerated in Subsection (b), 10-20 Section 17.46, Business & Commerce Code; 10-21 (2) causing confusion or misunderstanding as to the 10-22 sponsorship, approval, or certification of any solicitation, 10-23 including mentioning the name of a charitable organization as a 10-24 beneficiary of the solicitation unless that organization has agreed 10-25 in writing to accept benefits of the solicitation; 11-1 (3) causing confusion or misunderstanding as to the 11-2 charitable organization that is the beneficiary of the 11-3 solicitation; 11-4 (4) falsely stating that the solicitor is a volunteer, 11-5 employee, or member of the charitable organization that is the 11-6 beneficiary of the solicitation; 11-7 (5) misrepresenting the purposes for which 11-8 contributions will be used; 11-9 (6) knowingly soliciting for a renewal, annual dues, 11-10 or annual contribution or otherwise implying that the donor or 11-11 prospective donor has previously made a contribution to the 11-12 charitable organization when that is not the case; 11-13 (7) sending a solicitation that is or appears to be an 11-14 invoice or bill unless the donor or prospective donor has 11-15 specifically agreed to make a contribution; or 11-16 (8) exploiting or using the fact of filing with the 11-17 attorney general in such a manner as to lead any person to believe 11-18 that the filing in any manner constitutes an endorsement or 11-19 approval by the state. 11-20 (c) Failing to file information or filing incomplete, false, 11-21 or misleading information in any document required to be filed with 11-22 the attorney general under this section is unlawful and is subject 11-23 to action by the attorney general as provided in Section 20.13 of 11-24 this code. 11-25 Sec. 20.12. AUDIT POWERS OF THE ATTORNEY GENERAL. (a) The 12-1 commercial solicitor shall make all records described in Section 12-2 20.10 of this code available for inspection by the attorney general 12-3 upon request. The attorney general shall not retain, copy, or 12-4 disclose information under Subsection (a), Section 20.10, of this 12-5 code to any person except to other law enforcement entities to the 12-6 extent necessary for investigative or law enforcement purposes. 12-7 (b) A commercial solicitor shall make these records 12-8 available to the attorney general within 10 working days after the 12-9 commercial solicitor receives the attorney general's request. 12-10 (c) This section is in addition to and does not limit any 12-11 other audit or investigative authority of the attorney general. 12-12 Sec. 20.13. REMEDIES. (a) The attorney general may 12-13 institute an action for failure to comply with any provision of 12-14 this chapter, seeking injunctive relief to restrain the person from 12-15 continuing the violation or violations and civil penalties of not 12-16 less than $1,000 and not more than $25,000 per violation. 12-17 (b) Suit may be brought against a bond filed under this 12-18 chapter. 12-19 (c) The remedies authorized by this chapter are not 12-20 exclusive but are in addition to any other procedure or remedies 12-21 provided for by any other common or statutory law. 12-22 (d) In any proceeding successfully prosecuted by the 12-23 attorney general under this chapter, the court may allow the 12-24 attorney general to recover civil penalties and the reasonable 12-25 costs, expenses, and attorney's fees incurred in bringing the suit. 13-1 Sec. 20.14. VENUE. In any proceeding under this chapter, 13-2 venue shall be in a court of competent jurisdiction in Travis 13-3 County, in the county in which the charitable organization is 13-4 located, or in the county in which the solicitation occurred. 13-5 Sec. 20.15. RULES. The attorney general may prescribe any 13-6 rules, procedures, and forms necessary for the proper 13-7 administration of this chapter. 13-8 Sec. 20.16. CONTRARY PROVISIONS INVALID. This chapter 13-9 applies without regard to contrary provisions in any contract 13-10 required by Section 20.06 of this code. 13-11 Sec. 20.17. SEVERABILITY. If any provision of this chapter 13-12 is or becomes invalid, illegal, or unenforceable in any respect, 13-13 the remaining provisions hereof shall not be in any way affected or 13-14 impaired thereby. 13-15 SECTION 2. This Act takes effect September 1, 1993. 13-16 SECTION 3. The importance of this legislation and the 13-17 crowded condition of the calendars in both houses create an 13-18 emergency and an imperative public necessity that the 13-19 constitutional rule requiring bills to be read on three several 13-20 days in each house be suspended, and this rule is hereby suspended.