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.