By Cain H.B. No. 2771
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of bingo; providing penalties; imposing
1-3 taxes.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 2(10), (20), and (22), Bingo Enabling
1-6 Act (Article 179d, Vernon's Texas Civil Statutes), are amended to
1-7 read as follows:
1-8 (10) "Net proceeds" means:
1-9 (A) in relation to the gross receipts from one
1-10 or more occasions of bingo, the amount that remains after deducting
1-11 the reasonable sums necessarily and actually expended for
1-12 advertising, security, repairs to premises and equipment, bingo
1-13 supplies and equipment, prizes, stated rental, or mortgage and
1-14 insurance expenses, if any, bookkeeping, legal, or accounting
1-15 services, fees for personnel as permitted under Subsection (c) of
1-16 Section 19 of this Act, janitorial services and utility supplies
1-17 and services, if any, license fees, and the fee on prizes imposed
1-18 by Section 19b of this Act <gross receipts tax>; and
1-19 (B) in relation to the gross rent or other
1-20 consideration received by an organization licensed to conduct bingo
1-21 for the use of its premises, fixtures, or equipment by another
1-22 licensee, the amount that remains after deducting the reasonable
1-23 sums necessarily and actually expended for janitorial services and
1-24 utility supplies directly attributable to the use of the premises,
2-1 fixtures, or equipment, if any.
2-2 (20) "Commission" means the Texas Lottery <Alcoholic
2-3 Beverage> Commission.
2-4 (22) "Bingo equipment" means equipment actually used,
2-5 made, or sold for the purpose of use in bingo games and includes
2-6 machines or other devices from which balls or other items are
2-7 withdrawn to determine the letters and numbers or other symbols to
2-8 be called, the balls or items themselves, bingo cards, and any
2-9 other device commonly used in the direct operation of the game.
2-10 "Bingo equipment" does not include:
2-11 (A) a bingo game set commonly manufactured and
2-12 sold as a child's game for a retail price of $20 or less unless the
2-13 set or a part of the set is actually used in a bingo game subject
2-14 to regulation under this Act; or
2-15 (B) commonly available component parts of bingo
2-16 equipment such as light bulbs, fuses, or bingo balls.
2-17 SECTION 2. Sections 11(f) and (t), Bingo Enabling Act
2-18 (Article 179d, Vernon's Texas Civil Statutes), are amended to read
2-19 as follows:
2-20 (f) A series of prizes offered or awarded on any one bingo
2-21 occasion for bingo games other than instant bingo may not aggregate
2-22 more than $2,500. <A series of prizes offered or awarded on any
2-23 one bingo occasion for games of instant bingo may not aggregate
2-24 more than $1,500.>
2-25 (t) With the prior written consent of the commission, a
2-26 licensed authorized organization may make an occasional sale of
2-27 bingo cards or of a used bingo flashboard or blower to another
3-1 licensed authorized organization.
3-2 SECTION 3. Section 12(d), Bingo Enabling Act (Article 179d,
3-3 Vernon's Texas Civil Statutes), is amended to read as follows:
3-4 (d) An authorized organization may receive a temporary
3-5 license for the conduct of bingo games on filing with the
3-6 commission an application, on a form prescribed by the commission,
3-7 accompanied by a $25 license fee. A temporary license is valid for
3-8 four hours during any one day. An organization may receive no more
3-9 than six temporary licenses in a calendar year. An organization
3-10 operating under a temporary license is subject to the taxes and
3-11 fees <gross receipts tax> authorized or imposed by this Act and the
3-12 other provisions of this Act to the extent they can be made
3-13 applicable.
3-14 SECTION 4. Sections 13(c), (f), and (j), Bingo Enabling Act
3-15 (Article 179d, Vernon's Texas Civil Statutes), are amended to read
3-16 as follows:
3-17 (c) The commission shall issue to an applicant a license for
3-18 the conduct of bingo, or a license renewal, on payment of a license
3-19 fee in accordance with Subdivision (1) of Subsection (d) of this
3-20 section, if the commission determines that:
3-21 (1) the member or members of the applicant designated
3-22 in the application to conduct bingo are active members of the
3-23 applicant;
3-24 (2) no person under whose name the game or games of
3-25 bingo will be conducted, and no person who will work at the
3-26 proposed bingo games, has been convicted of a felony, gambling
3-27 offense, criminal fraud, or a crime of moral turpitude for which
4-1 less than 10 years have elapsed since termination of any sentence,
4-2 parole, mandatory supervision, or probation served for the offense;
4-3 (3) the games are to be conducted in accordance with
4-4 this Act;
4-5 (4) the proceeds of the games are to be disposed of as
4-6 provided by this Act;
4-7 (5) <no prize will be offered or given in excess of
4-8 the limits set by Section 11(e) of this Act in any single game and
4-9 that the aggregate of all prizes offered and given in all of the
4-10 games conducted on a single occasion under the license will not
4-11 exceed the limits set by Section 11(f) of this Act;>
4-12 <(6)> the applicant has made and can demonstrate
4-13 significant progress toward the accomplishment of the purposes of
4-14 the organization during the 12-month period preceding the date of
4-15 application for a license or license renewal; and
4-16 (6) <(7)> all persons who will conduct, promote, or
4-17 administer the proposed bingo games are active, bona fide members
4-18 of the applicant organization and all other persons who will assist
4-19 in conducting, promoting, or administering the proposed bingo games
4-20 are persons authorized to do so by Section 19 of this Act.
4-21 (f) A person who leases premises on which bingo is conducted
4-22 is not required to be a licensed commercial lessor unless the
4-23 person leases directly to a licensed authorized organization <The
4-24 commission may not issue a license to an applicant seeking to
4-25 conduct bingo on the premises of a licensed commercial lessor if
4-26 the premises presently owned or occupied by the applicant are
4-27 adequate and suitable for conducting bingo games. The burden is on
5-1 the applicant to establish by clear and convincing proof that the
5-2 premises it presently owns or occupies are not adequate and
5-3 suitable for conducting games. It is the intent of this subsection
5-4 to encourage licensed organizations to use their own facilities if
5-5 possible, to discourage the commercialization of bingo, and to
5-6 maximize the availability of bingo proceeds for application by an
5-7 authorized organization to its authorized purposes>.
5-8 (j) A license may not be transferred by a licensee, except
5-9 that, in accordance with commission rules, a licensed commercial
5-10 lessor who is an individual may transfer the individual's license
5-11 to a corporation formed by the individual if the corporation would
5-12 be eligible for a commercial license to lease bingo premises under
5-13 this section if the corporation were applying for a license.
5-14 SECTION 5. Section 13(o), Bingo Enabling Act (Article 179d,
5-15 Vernon's Texas Civil Statutes), is amended to read as follows:
5-16 (o) Notwithstanding Subsection (n) of this section, a person
5-17 who was licensed as a commercial lessor on June 10, 1989, whose
5-18 license has been kept in effect since that date, and who is
5-19 otherwise eligible for the license may renew the license as a
5-20 commercial lessor of bingo premises <according to the terms of the
5-21 license as those terms existed on June 10, 1989>.
5-22 SECTION 6. The Bingo Enabling Act (Article 179d, Vernon's
5-23 Texas Civil Statutes) is amended by adding Section 13f to read as
5-24 follows:
5-25 Sec. 13f. ACCESS TO INTERNAL REVENUE SERVICE INFORMATION.
5-26 (a) The commission may obtain information relating to a person's
5-27 qualification for licensing under this Act from the Internal
6-1 Revenue Service under a contract between the comptroller and the
6-2 Internal Revenue Service on:
6-3 (1) an operator or an applicant to act as an operator
6-4 of bingo occasions; or
6-5 (2) an applicant for a license to act or a person who
6-6 holds a license to act as a commercial lessor.
6-7 (b) All information received by the commission from the
6-8 Internal Revenue Service is confidential and may only be used as
6-9 provided by the contract between the comptroller and the Internal
6-10 Revenue Service under which the information was obtained.
6-11 (c) A person commits an offense if the person releases or
6-12 discloses any information obtained under this section except on
6-13 court order. An offense under this subsection is a Class A
6-14 misdemeanor.
6-15 (d) The comptroller shall adopt rules governing the custody
6-16 and use of information obtained under this section.
6-17 SECTION 7. Section 16(e), Bingo Enabling Act (Article 179d,
6-18 Vernon's Texas Civil Statutes), is amended to read as follows:
6-19 (e) After a hearing, the <The> commission may suspend or
6-20 revoke any license issued under this Act for failure to comply with
6-21 this Act or a rule adopted by the commission under this Act, or for
6-22 any reason that would allow or require the commission to refuse to
6-23 issue or renew a license of the same class. An administrative law
6-24 judge of the State Office of Administrative Hearings shall conduct
6-25 the hearing as provided by Chapter 591, Acts of the 72nd
6-26 Legislature, Regular Session, 1991 (Article 6252-13f, Vernon's
6-27 Texas Civil Statutes), and its subsequent amendments. The
7-1 commission may review the decision of an administrative law judge
7-2 as provided by the Administrative Procedure and Texas Register Act
7-3 (Article 6252-13a, Vernon's Texas Civil Statutes) and its
7-4 subsequent amendments. The commission may summarily suspend a
7-5 license issued under this Act for failure to comply with this Act
7-6 or a rule adopted by the commission under this Act if the
7-7 commission determines that the licensee's continued operation may
7-8 constitute an immediate threat to the health, safety, morals, or
7-9 welfare of the public. The Administrative Procedure and Texas
7-10 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) does
7-11 not apply to the commission in the enforcement and administration
7-12 of a summary suspension under this section.
7-13 SECTION 8. The Bingo Enabling Act (Article 179d, Vernon's
7-14 Texas Civil Statutes) is amended by adding Sections 16a and 16b to
7-15 read as follows:
7-16 Sec. 16a. ADMINISTRATIVE PENALTIES. (a) The commission may
7-17 assess an administrative penalty against the holder of a commercial
7-18 lessor's license under this Act who violates a provision of this
7-19 Act or a rule or order adopted by the commission under this Act as
7-20 provided by this section.
7-21 (b) The penalty for each violation may be in an amount not
7-22 to exceed $5,000. Each day a violation continues or occurs may be
7-23 considered a separate violation for purposes of penalty assessment.
7-24 (c) In determining the amount of the penalty, the executive
7-25 director of the commission shall consider:
7-26 (1) the seriousness of the violation, including the
7-27 nature, circumstances, extent, and gravity of the prohibited acts
8-1 and the hazard or potential hazard posed to the health or safety of
8-2 the public;
8-3 (2) the economic damage to property or the environment
8-4 caused by the violation;
8-5 (3) the history of previous violations;
8-6 (4) the amount necessary to deter future violations;
8-7 (5) efforts to correct the violation; and
8-8 (6) any other matter that justice may require.
8-9 (d) If, after investigation of a possible violation and the
8-10 facts surrounding that possible violation, the executive director
8-11 determines that a violation has occurred, the executive director
8-12 may issue a violation report stating the facts on which the
8-13 conclusion that a violation occurred is based, recommending that an
8-14 administrative penalty under this section be imposed on the person
8-15 charged, and recommending the amount of that proposed penalty. The
8-16 executive director shall base the recommended amount of the
8-17 proposed penalty on the seriousness of the violation determined by
8-18 consideration of the factors set forth in Subsection (c) of this
8-19 section.
8-20 (e) Not later than the 14th day after the date on which the
8-21 report is issued, the executive director shall give written notice
8-22 of the report to the person charged. The notice shall include a
8-23 brief summary of the charges, a statement of the amount of the
8-24 penalty recommended, and a statement of the right of the person
8-25 charged to a hearing on the occurrence of the violation or the
8-26 amount of the penalty, or both the occurrence of the violation and
8-27 the amount of the penalty.
9-1 (f) Not later than the 20th day after the date on which
9-2 notice is received, the person charged may accept the determination
9-3 of the executive director made under Subsection (d) of this
9-4 section, including the recommended penalty, or make a written
9-5 request for a hearing on the determination.
9-6 (g) If the person charged with the violation accepts the
9-7 determination of the executive director, the executive director
9-8 shall issue an order approving the determination and ordering the
9-9 payment of the recommended penalty.
9-10 (h) If the person charged requests a hearing or fails to
9-11 timely respond to the notice, the executive director shall set a
9-12 hearing and give notice of the hearing. The hearing shall be held
9-13 by the State Office of Administrative Hearings. The hearing
9-14 examiner shall make findings of fact and conclusions of law and
9-15 promptly issue to the commission a proposal for decision as to the
9-16 occurrence of the violation, including a recommendation as to the
9-17 amount of the proposed penalty if a penalty is warranted. Based on
9-18 the findings of fact, conclusions of law, and recommendations of
9-19 the hearing examiner, the executive director by order may find a
9-20 violation has occurred and may assess a penalty or may find that no
9-21 violation has occurred. All proceedings under this subsection are
9-22 subject to the Administrative Procedure and Texas Register Act
9-23 (Article 6252-13a, Vernon's Texas Civil Statutes) and its
9-24 subsequent amendments.
9-25 (i) The executive director shall give notice of the
9-26 executive director's order to the person charged. The notice shall
9-27 include:
10-1 (1) the findings of fact and conclusions of law
10-2 separately stated;
10-3 (2) the amount of the penalty ordered, if any;
10-4 (3) a statement of the right of the person charged to
10-5 judicial review of the executive director's order, if any; and
10-6 (4) other information required by law.
10-7 (j) Not later than the 30th day after the date the executive
10-8 director's order is final as provided by Section 16(c),
10-9 Administrative Procedure and Texas Register Act (Article 6252-13a,
10-10 Vernon's Texas Civil Statutes), the person shall:
10-11 (1) pay the amount of the penalty;
10-12 (2) pay the amount of the penalty and file a petition
10-13 for judicial review contesting the occurrence of the violation, the
10-14 amount of the penalty, or both the occurrence of the violation and
10-15 the amount of the penalty; or
10-16 (3) without paying the amount of the penalty, file a
10-17 petition for judicial review contesting the occurrence of the
10-18 violation, the amount of the penalty, or both the occurrence of the
10-19 violation and the amount of the penalty.
10-20 (k) Within the 30-day period, a person who acts under
10-21 Subsection (j)(3) of this section may:
10-22 (1) stay enforcement of the penalty by:
10-23 (A) paying the amount of the penalty to the
10-24 court for placement in an escrow account; or
10-25 (B) giving to the court a supersedeas bond
10-26 approved by the court for the amount of the penalty and that is
10-27 effective until all judicial review of the board's order is final;
11-1 or
11-2 (2) request the court to stay enforcement of the
11-3 penalty by:
11-4 (A) filing with the court a sworn affidavit of
11-5 the person stating that the person is financially unable to pay the
11-6 amount of the penalty and is financially unable to give the
11-7 supersedeas bond; and
11-8 (B) giving a copy of the affidavit to the
11-9 executive director by certified mail.
11-10 (l) If the executive director receives a copy of an
11-11 affidavit under Subsection (k)(2) of this section, the executive
11-12 director may file with the court not later than the fifth day after
11-13 the date the copy is received a contest to the affidavit. The
11-14 court shall hold a hearing on the facts alleged in the affidavit as
11-15 soon as practicable and shall stay the enforcement of the penalty
11-16 on finding that the alleged facts are true. The person who files
11-17 an affidavit has the burden of proving that the person is
11-18 financially unable to pay the amount of the penalty and to give a
11-19 supersedeas bond.
11-20 (m) If the person does not pay the amount of the penalty and
11-21 the enforcement of the penalty is not stayed, the executive
11-22 director may refer the matter to the attorney general for
11-23 collection of the amount of the penalty.
11-24 (n) Judicial review of the order of the board:
11-25 (1) is instituted by filing a petition as provided by
11-26 Section 19, Administrative Procedure and Texas Register Act
11-27 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
12-1 subsequent amendments; and
12-2 (2) is under the substantial evidence rule.
12-3 (o) If the court sustains the occurrence of the violation,
12-4 the court may uphold or reduce the amount of the penalty and order
12-5 the person to pay the full or reduced amount of the penalty. If
12-6 the court does not sustain the occurrence of the violation, the
12-7 court shall order that no penalty is owed.
12-8 (p) When the judgment of the court becomes final, the court
12-9 shall proceed under this subsection. If the person paid the amount
12-10 of the penalty and if that amount is reduced or is not upheld by
12-11 the court, the court shall order that the appropriate amount plus
12-12 accrued interest be remitted to the person. The rate of the
12-13 interest is the rate charged on loans to depository institutions by
12-14 the New York Federal Reserve Bank, and the interest shall be paid
12-15 for the period beginning on the date the penalty was paid and
12-16 ending on the date the penalty is remitted. If the person gave a
12-17 supersedeas bond and if the amount of the penalty is not upheld by
12-18 the court, the court shall order the release of the bond. If the
12-19 person gave a supersedeas bond and if the amount of the penalty is
12-20 reduced, the court shall order the release of the bond after the
12-21 person pays the amount.
12-22 (q) A penalty collected under this section shall be remitted
12-23 to the comptroller for deposit in the general revenue fund.
12-24 (r) All proceedings under this section are subject to the
12-25 Administrative Procedure and Texas Register Act (Article 6252-13a,
12-26 Vernon's Texas Civil Statutes) and its subsequent amendments.
12-27 Sec. 16b. REMEDIES NOT EXCLUSIVE. The commission may
13-1 suspend or revoke a commercial lessor's license under Section 16(e)
13-2 of this Act, impose an administrative penalty under Section 16a of
13-3 this Act, or both, depending on the severity of the violation.
13-4 SECTION 9. Sections 19(c) and (d), Bingo Enabling Act
13-5 (Article 179d, Vernon's Texas Civil Statutes), are amended to read
13-6 as follows:
13-7 (c) Items of expense may not be incurred or paid in
13-8 connection with the conduct of any game of bingo under any license
13-9 issued under this Act except those that are reasonable and are
13-10 necessarily expended for advertising, security, repairs to premises
13-11 and equipment, bingo supplies and equipment, prizes, stated rental
13-12 or mortgage and insurance expenses, if any, bookkeeping, legal, or
13-13 accounting services related to bingo, fees in amounts authorized by
13-14 the commission for callers, cashiers, and ushers, janitorial
13-15 services and utility supplies and services, if any, and license
13-16 fees. The value of any health insurance or health benefit provided
13-17 by a licensed authorized organization to an employee may not be
13-18 included in the amount of a fee authorized by the commission.
13-19 (d) <A person may not be an operator for more than one
13-20 licensed authorized organization, without regard to the person's
13-21 membership status in licensed authorized organizations.> The
13-22 commission may adopt rules restricting involvement in the conduct,
13-23 promotion, or administration of bingo by a licensed authorized
13-24 commercial lessor, by a person having an interest in or who is
13-25 active in a licensed authorized commercial lessor, or by a person
13-26 related in the first degree by consanguinity or affinity, as
13-27 determined under Article 5996h, Revised Statutes, to a person
14-1 having an interest in or active in a licensed authorized commercial
14-2 lessor, without regard to a person's membership status in a
14-3 licensed authorized organization.
14-4 SECTION 10. Sections 19b(b) and (c), Bingo Enabling Act
14-5 (Article 179d, Vernon's Texas Civil Statutes), are amended to read
14-6 as follows:
14-7 (b) The fee imposed by this section is six <three> percent
14-8 of the amount or value of the prize.
14-9 (c) A licensed authorized organization shall report and
14-10 remit the fee imposed by this section at the same time and in the
14-11 same manner as the gross rentals <receipts> tax under Section 20 of
14-12 this Act.
14-13 SECTION 11. The Bingo Enabling Act (Article 179d, Vernon's
14-14 Texas Civil Statutes) is amended by adding Section 19c to read as
14-15 follows:
14-16 Sec. 19c. LOCAL SHARE OF FEE ON PRIZES. (a) A county or
14-17 municipality that imposed a gross receipts tax on the conduct of
14-18 bingo games as of January 1, 1993, is entitled to a share of the
14-19 fee imposed by Section 19b of this Act.
14-20 (b) Except as provided by Subsection (d) of this section, a
14-21 county to which this section applies is entitled to 50 percent of
14-22 the fee collected under Section 19b of this Act on a prize awarded
14-23 at a bingo game conducted in the county.
14-24 (c) Except as provided by Subsection (d) of this section, a
14-25 municipality to which this section applies is entitled to 50
14-26 percent of the fee collected under Section 19b of this Act on a
14-27 prize awarded at a bingo game conducted in the municipality.
15-1 (d) If a county and municipality are both entitled to a
15-2 share of the fee imposed by Section 19b of this Act:
15-3 (1) the county is entitled to 25 percent of the fee
15-4 collected under Section 19b of this Act on a prize awarded at a
15-5 bingo game conducted in the county; and
15-6 (2) the municipality is entitled to 25 percent of the
15-7 fee collected under Section 19b of this Act on a prize awarded at a
15-8 bingo game conducted in the municipality.
15-9 (e) The local share of the fee on prizes provided by this
15-10 section is limited to a share of collections attributable to the
15-11 first five percent levied on the amount or value of prizes.
15-12 SECTION 12. Section 20, Bingo Enabling Act (Article 179d,
15-13 Vernon's Texas Civil Statutes), is amended to read as follows:
15-14 Sec. 20. REPORTING AND DUE DATE OF TAXES AND FEES. The
15-15 taxes and fees authorized or imposed by this Act are due and
15-16 payable by the licensee or any person conducting bingo games
15-17 without a license to the state treasurer quarterly on or before the
15-18 15th day of the month succeeding each calendar quarter. The report
15-19 must be filed under oath on forms prescribed by the commission.
15-20 SECTION 13. Section 26, Bingo Enabling Act (Article 179d,
15-21 Vernon's Texas Civil Statutes), is amended to read as follows:
15-22 Sec. 26. TRANSMITTALS, REFUNDS, AND COLLECTIONS. (a) The
15-23 revenue collected from the fee on prizes imposed by Section 19b of
15-24 this Act and sent to the state shall be deposited to the credit of
15-25 a special account in the general revenue fund.
15-26 (b) The commission shall determine the total amount of
15-27 revenue deposited in the account from prizes awarded at bingo games
16-1 in each county and each municipality entitled to a share under
16-2 Section 19c of this Act.
16-3 (c) Quarterly, the commission shall send to each county and
16-4 municipality entitled under Section 19c of this Act to a share of
16-5 the fee on prizes the county's or municipality's share as
16-6 determined under Sections 19c(b)-(d) of this Act.
16-7 (d) The commission shall transfer any remaining amounts in
16-8 the account to a nondedicated account in the general revenue fund.
16-9 (e) Each jurisdiction's share of the fee on prizes <all
16-10 gross receipts taxes> collected under <Section 3 of> this Act <by
16-11 the commission> shall be transmitted to the treasurer or the
16-12 officer of the jurisdiction performing the functions of that office
16-13 by the commission payable to the jurisdiction <periodically as
16-14 promptly as feasible. Transmittals required under this Act shall
16-15 be made at least twice in each state fiscal year>. The funds so
16-16 transmitted may be used by the jurisdiction for any purpose for
16-17 which the general funds of the jurisdiction may be used.
16-18 <(b) Before transmitting funds under Subsection (a) of this
16-19 section, the commission shall deduct two percent of the sum
16-20 collected from each jurisdiction during such period and shall
16-21 deposit the funds in the state treasury to the credit of a special
16-22 fund to be known as the bingo enforcement fund. The fund may be
16-23 used only for the administration and enforcement of this Act.>
16-24 (f) <(c)> The commission is authorized to retain in the
16-25 suspense account of any jurisdiction a portion of the
16-26 jurisdiction's share of the fee on prizes <tax> collected under
16-27 this Act. The balance so retained in the suspense account may not
17-1 exceed five percent of the amount remitted to the jurisdiction.
17-2 The commission is authorized to make refunds from the suspense
17-3 account of any jurisdiction for overpayments made to such accounts
17-4 and to redeem dishonored checks and drafts deposited to the credit
17-5 of the suspense account of the jurisdiction.
17-6 (g) <(d)> When any jurisdiction entitled to a share of the
17-7 fee on prizes prohibits the conduct of bingo as provided by
17-8 Sections 4-9 of this Act <imposes the gross receipts tax and
17-9 thereafter abolishes the tax>, the commission may retain in the
17-10 suspense account of the jurisdiction for one year five percent of
17-11 the final remittance to each such jurisdiction at the time of
17-12 termination of collection of the tax in the jurisdiction to cover
17-13 possible refunds for overpayment of the tax and to redeem
17-14 dishonored checks and drafts deposited to the credit of the
17-15 account. After one year has elapsed after the effective date of
17-16 the prohibition of bingo <abolition of the tax> in the
17-17 jurisdiction, the commission shall remit the balance in the account
17-18 to the jurisdiction and close the account.
17-19 (h) <(e)> Interest earned on all fees on prizes <taxes>
17-20 collected by the commission under this Act before distribution to
17-21 the local jurisdiction, including interest earned from the suspense
17-22 accounts retained under this section, shall be credited to the
17-23 General Revenue Fund.
17-24 SECTION 14. The Bingo Enabling Act (Article 179d, Vernon's
17-25 Texas Civil Statutes) is amended by adding Section 27a to read as
17-26 follows:
17-27 Sec. 27a. SUBPOENA OF WITNESSES; WITNESS FEES; CONTEMPT.
18-1 (a) The commission, administrator, or a representative of the
18-2 commission under the direction of the commission, for the purposes
18-3 of this Act, may:
18-4 (1) issue subpoenas;
18-5 (2) compel the attendance of witnesses;
18-6 (3) administer oaths;
18-7 (4) certify to official acts;
18-8 (5) take depositions inside or outside the state, as
18-9 provided by law;
18-10 (6) compel the production of pertinent books,
18-11 accounts, records, documents, and testimony; and
18-12 (7) certify to copies of documents as being true
18-13 copies on file in the official records of the commission.
18-14 (b) If a witness in attendance before the commission or
18-15 before an authorized representative refuses without reasonable
18-16 cause to be examined or answer a legal or pertinent question, or to
18-17 produce a book, record, or paper when ordered by the commission to
18-18 do so, the commission may apply to the Travis County district court
18-19 for an order returnable in not less than two nor more than five
18-20 days, directing the witness to show cause before the judge why he
18-21 should not be punished for contempt. If the judge determines that
18-22 the witness has refused, without reasonable cause or legal excuse,
18-23 to be examined or answer a legal or pertinent question, or to
18-24 produce a book, record, or paper which he was ordered to bring or
18-25 produce, he may forthwith punish the offender as for contempt of
18-26 court.
18-27 SECTION 15. Sections 31, 32, and 33, Bingo Enabling Act
19-1 (Article 179d, Vernon's Texas Civil Statutes), are amended to read
19-2 as follows:
19-3 Sec. 31. Determination if no Return Made. If any licensee
19-4 fails to make a required return, or if any person conducts bingo
19-5 without a license, the commission shall make an estimate of the
19-6 prizes awarded at each occasion of bingo <gross receipts of the
19-7 licensee or person conducting bingo without a license> or of the
19-8 gross rentals received by a licensee for the rental of premises on
19-9 which bingo is conducted. The estimate shall be made for the
19-10 period in respect to which the licensee or other person failed to
19-11 make a return and shall be based on any information covering any
19-12 period that is in the possession of the commission or may come into
19-13 the possession of the commission. On the basis of this estimate,
19-14 the commission shall compute and determine the amount required to
19-15 be paid to the state, adding to the sum a penalty of 10 percent of
19-16 the amount. One or more determinations may be made for one or more
19-17 periods.
19-18 Sec. 32. Jeopardy Determination. (a) If the commission
19-19 believes that the collection of any gross rental tax or fee on
19-20 prizes or any amount of tax or fee on prizes required to be
19-21 remitted to the state or the amount of any determination will be
19-22 jeopardized by delay, the commission shall make a determination of
19-23 the tax or fee on prizes or amount of tax or fee on prizes required
19-24 to be collected, noting that fact upon the determination. The
19-25 amount determined is due and payable immediately.
19-26 (b) If the amount specified in the determination is not paid
19-27 within 20 days after service of notice thereof on the licensee
20-1 against whom the determination is made, the amount becomes final at
20-2 the expiration of the 20 days unless a petition for redetermination
20-3 is filed within the 20 days. A delinquency penalty of 10 percent
20-4 of the tax or fee on prizes or amount of the tax or fee on prizes
20-5 and interest at the rate of 10 percent a year shall attach to the
20-6 amount of the tax or fee on prizes or the amount of the tax or fee
20-7 on prizes required to be collected.
20-8 Sec. 33. Application of Tax Laws. Subtitle B, Title 2, Tax
20-9 Code, applies to the administration, collection, and enforcement of
20-10 the gross rentals tax <taxes authorized or> imposed under Section
20-11 2B of this Act and the fee on prizes imposed under Section 19b of
20-12 this Act except as modified by this Act. In applying the
20-13 provisions <For purposes of the application> of that subtitle to
20-14 the gross rentals tax <taxes authorized or> imposed under Section
20-15 2B of this Act and the fee on prizes imposed under Section 19b of
20-16 this Act only, the fee on prizes is treated as if it were a tax and
20-17 the powers and duties assigned to the comptroller under that
20-18 subtitle are assigned to the commission.
20-19 SECTION 16. Section 35(a), Bingo Enabling Act (Article 179d,
20-20 Vernon's Texas Civil Statutes), is amended to read as follows:
20-21 (a) A person lawfully conducting or participating in the
20-22 conduct of bingo or permitting the conduct on any premises owned or
20-23 leased by him or it under any license lawfully issued under this
20-24 Act is not liable to prosecution or conviction for violation of any
20-25 provision of the Penal Code, as amended, or any other law or
20-26 ordinance to the extent that such conduct is specifically
20-27 authorized by this Act. The immunity does not extend to any person
21-1 knowingly conducting or participating in the conduct of bingo under
21-2 any license obtained by any false pretense, <or by any> false
21-3 statement, or material omission made in any application for license
21-4 or otherwise or permitting the conduct on any premises owned or
21-5 leased by him or it of any game of bingo conducted under any
21-6 license known to him or it to have been obtained by any false
21-7 pretense or statement.
21-8 SECTION 17. Section 36, Bingo Enabling Act (Article 179d,
21-9 Vernon's Texas Civil Statutes), is amended to read as follows:
21-10 Sec. 36. OFFENSES; REVOCATION <FORFEITURE> OF LICENSE;
21-11 INELIGIBILITY TO APPLY FOR LICENSE. (a) A person commits an
21-12 offense and the <forfeits a> license is subject to revocation
21-13 <issued> under this Act if the person:
21-14 (1) makes a false statement or material omission in an
21-15 application for a license authorized to be issued under this Act;
21-16 (2) fails to maintain records that fully and truly
21-17 record all transactions connected with the conducting of bingo, the
21-18 leasing of premises to be used for the conduct of bingo, or the
21-19 manufacture, sale, or distribution of bingo supplies, devices, or
21-20 equipment;
21-21 (3) falsifies or makes any false entry in any books or
21-22 records so far as they relate to the conduct of bingo, to the
21-23 disposition of bingo proceeds, to the application of rent received
21-24 by any authorized organization, or to the gross receipts realized
21-25 from the manufacture, sale, or distribution of bingo supplies,
21-26 devices, or equipment;
21-27 (4) diverts or pays any portion of the net proceeds of
22-1 any game of bingo to any person except in furtherance of one or
22-2 more of the lawful purposes prescribed by this Act; or
22-3 (5) violates this Act or a term of a license issued
22-4 under this Act.
22-5 (b) An offense under Subsection (a)(2), (3), or (5) of this
22-6 section is a Class C misdemeanor, unless it is shown on the trial
22-7 of the offense that the person has been convicted previously under
22-8 this section, in which event it is a Class B misdemeanor. An
22-9 offense under Subsection (a)(1) or (a)(4) of this section is a
22-10 Class A misdemeanor. This subsection does not apply to an offense
22-11 committed under Section 39(b) or Section 40 of this Act.
22-12 (c) A person whose license is revoked <forfeited> under this
22-13 section may not apply for another license under this Act until one
22-14 year has elapsed from the date of revocation <forfeiture>.
22-15 SECTION 18. Sections 37(a), (b), and (c), Bingo Enabling Act
22-16 (Article 179d, Vernon's Texas Civil Statutes), are amended to read
22-17 as follows:
22-18 (a) At any time within three years after a person is
22-19 delinquent in the payment of any amount of required gross rentals
22-20 tax or fee on prizes due, the commission may collect the amount as
22-21 provided by this section.
22-22 (b) The commission shall seize any property, real or
22-23 personal, of the person and sell the property, or a sufficient part
22-24 of it, at public auction to pay the amount due with any interest or
22-25 penalties on account of the seizure and sale. Any seizure made to
22-26 collect the gross rentals <a> tax or the fee on prizes due shall be
22-27 only of property of the licensee not exempt from execution under
23-1 the laws of this state.
23-2 (c) Notice of the sale and the time and place of the sale
23-3 shall be given to the delinquent person in writing at least 20 days
23-4 before the date set for the sale as provided by this subsection.
23-5 The notice shall be enclosed in an envelope addressed to the
23-6 person<, in case of a sale for limited sales tax due,> at his last
23-7 known address or place of business<, and in case of a sale for use
23-8 taxes due, at his last known residence or place of business in this
23-9 state>. It shall be deposited in the United States mail, postage
23-10 prepaid. The notice shall also be published for at least 10 days
23-11 before the date set for the sale in a newspaper of general
23-12 circulation published in the county in which the property seized is
23-13 to be sold. If there is no newspaper of general circulation in the
23-14 county, notice shall be posted in three public places in the county
23-15 at least 20 days before the date set for the sale. The notice
23-16 shall contain a description of the property to be sold, a statement
23-17 of the amount due, including interest, penalties, and costs, the
23-18 name of the delinquent, and the further statement that unless the
23-19 amount due, interest, penalties, and costs are paid on or before
23-20 the time fixed in the notice for the sale, the property, or so much
23-21 of it as may be necessary, will be sold in accordance with the law
23-22 and the notice.
23-23 SECTION 19. Section 38, Bingo Enabling Act (Article 179d,
23-24 Vernon's Texas Civil Statutes), is amended to read as follows:
23-25 Sec. 38. Bonds or Securities. (a) Each licensee under this
23-26 Act shall furnish to the commission a cash bond, a bond from a
23-27 surety company chartered or authorized to do business in this
24-1 state, certificates of deposit, certificates of savings or U.S.
24-2 treasury bonds or, subject to the discretion and approval of the
24-3 commission, an assignment of negotiable stocks or bonds, or such
24-4 other security as the commission may deem sufficient to secure the
24-5 payment of required tax on gross rentals or fee on prizes <taxes>
24-6 under this Act. The commission shall fix the amount of the bond or
24-7 security in each case, taking into consideration the amount of
24-8 money that has or is expected to become due from the licensee under
24-9 this Act. The amount of the bond or security required by the
24-10 commission may not exceed three times the amount of the licensee's
24-11 average quarterly reports.
24-12 (b) On failure to pay the gross rentals tax or the fee on
24-13 prizes <taxes> imposed under this Act, the commission may notify
24-14 both the licensee and any surety of the delinquency by jeopardy or
24-15 deficiency determination. If payment is not made when due, the
24-16 commission may forfeit the bond or security or any part thereof.
24-17 (c) If the licensee ceases to conduct bingo games and
24-18 relinquishes his license, the commission shall authorize the
24-19 release of all bonds and security on a determination that no
24-20 amounts of gross rentals tax or fee on prizes remain due and
24-21 payable under this Act.
24-22 SECTION 20. Section 39(b), Bingo Enabling Act (Article 179d,
24-23 Vernon's Texas Civil Statutes), is amended to read as follows:
24-24 (b) Any person conducting, promoting, or administering a
24-25 game commits a felony of the third degree unless the person is
24-26 conducting, promoting, or administering a game:
24-27 (1) in accordance with a valid license issued under
25-1 this Act;
25-2 (2) within the confines of a home for purposes of
25-3 amusement or recreation when:
25-4 (A) no player or other person furnishes anything
25-5 of more than nominal value for the opportunity to participate;
25-6 (B) participation in the game does not exceed 15
25-7 players; and
25-8 (C) the prizes awarded or to be awarded are
25-9 nominal;
25-10 (3) on behalf of an organization of persons 60 years
25-11 of age or over, a senior citizens' association, a senior citizens'
25-12 community center program operated or funded by a governmental
25-13 entity, or the patients in a hospital or nursing home or residents
25-14 of a retirement home solely for the purpose of amusement and
25-15 recreation of its members, residents, or patients, when:
25-16 (A) no player or other person furnishes anything
25-17 of more than nominal value for the opportunity to participate; and
25-18 (B) the prizes awarded or to be awarded are
25-19 nominal; or
25-20 (4) on behalf of a business conducting the game for
25-21 promotional or advertising purposes if:
25-22 (A) the game is conducted by or through a
25-23 newspaper or a radio or television station;
25-24 (B) participation in the game is open to the
25-25 general public and is not limited to customers of the business;
25-26 (C) playing materials are furnished without
25-27 charge to any person on request; and
26-1 (D) no player is required to furnish anything of
26-2 value for the opportunity to participate.
26-3 SECTION 21. The Bingo Enabling Act (Article 179d, Vernon's
26-4 Texas Civil Statutes) is amended by adding Section 43 to read as
26-5 follows:
26-6 Sec. 43. BINGO ADVISORY COMMITTEE. (a) The commission
26-7 shall appoint a bingo advisory committee consisting of nine
26-8 members. The committee members shall be appointed to represent a
26-9 balance of interests including representatives of:
26-10 (1) the general public;
26-11 (2) charities that operate bingo games; and
26-12 (3) commercial and charity lessors that participate in
26-13 the bingo industry.
26-14 (b) A bingo advisory committee member serves at the pleasure
26-15 of the commission. A member of the committee is not entitled to
26-16 receive compensation for serving as a member. A member is entitled
26-17 to reimbursement for reasonable expenses incurred in performing
26-18 duties as a member of the committee.
26-19 (c) The bingo advisory committee shall:
26-20 (1) advise the commission on the needs and problems of
26-21 the state's bingo industry;
26-22 (2) comment on rules involving bingo during their
26-23 development and before their final adoption unless an emergency
26-24 requires immediate action by the commission;
26-25 (3) report annually to the commission on the
26-26 committee's activities; and
26-27 (4) perform other duties as determined by the
27-1 commission.
27-2 (d) The bingo advisory committee shall meet quarterly or as
27-3 requested by the commission.
27-4 (e) The commission may adopt rules to govern the operations
27-5 of the bingo advisory committee.
27-6 SECTION 22. Section 112.058, Tax Code, is amended by adding
27-7 Subsection (f) to read as follows:
27-8 (f) All protest payments of taxes imposed by and collected
27-9 for the state under the Bingo Enabling Act (Article 179d, Vernon's
27-10 Texas Civil Statutes) that become due on or after September 1,
27-11 1993, are governed by Subchapter J, Chapter 403, Government Code.
27-12 SECTION 23. Sections 2A, 3, 4(b), 13(p), 21, and 22, Bingo
27-13 Enabling Act (Article 179d, Vernon's Texas Civil Statutes), are
27-14 repealed.
27-15 SECTION 24. This Act takes effect September 1, 1993, but
27-16 only if H.B. No. 1587, 73rd Legislature, Regular Session, 1993, or
27-17 S.B. No. 550, 73rd Legislature, Regular Session, 1993, is enacted
27-18 and becomes law. If neither H.B. No. 1587, 73rd Legislature,
27-19 Regular Session, 1993, nor S.B. No. 550, 73rd Legislature, Regular
27-20 Session, 1993, is enacted and becomes law, this Act has no effect.
27-21 SECTION 25. (a) As soon as practicable, but not later than
27-22 January 1, 1994:
27-23 (1) all powers, duties, rights, and obligations of the
27-24 Texas Alcoholic Beverage Commission relating to the administration
27-25 and regulation of bingo are transferred to the Texas Lottery
27-26 Commission;
27-27 (2) except as provided by Subsections (b) and (c) of
28-1 this section, all assets, liabilities, personnel, equipment, data,
28-2 documents, facilities, and other items of the Texas Alcoholic
28-3 Beverage Commission relating to the administration and regulation
28-4 of bingo are transferred to the Texas Lottery Commission; and
28-5 (3) any appropriation to the Texas Alcoholic Beverage
28-6 Commission relating to the administration and regulation of bingo
28-7 is transferred to the Texas Lottery Commission.
28-8 (b) The Texas Alcoholic Beverage Commission may decide
28-9 whether to transfer to the Texas Lottery Commission:
28-10 (1) personnel who perform both duties that relate to
28-11 bingo regulation and duties that do not relate to bingo regulation;
28-12 and
28-13 (2) assets used both in bingo regulation and
28-14 activities other than bingo regulation.
28-15 (c) The Texas Lottery Commission may decide whether to
28-16 accept personnel from the Texas Alcoholic Beverage Commission.
28-17 (d) The officers and employees of the Texas Alcoholic
28-18 Beverage Commission shall cooperate fully with the reorganization.
28-19 (e) A transfer of functions under Subsection (a) of this
28-20 section shall occur on the date specified in an interagency
28-21 contract between the Texas Lottery Commission and the Texas
28-22 Alcoholic Beverage Commission.
28-23 (f) Notwithstanding the changes made by this Act to the
28-24 Bingo Enabling Act (Article 179d, Vernon's Texas Civil Statutes),
28-25 the Texas Alcoholic Beverage Commission retains all powers and
28-26 duties relating to the regulation of bingo until the effective date
28-27 of the transfer under Subsection (a) of this section, and:
29-1 (1) a reference in the Bingo Enabling Act (Article
29-2 179d, Vernon's Texas Civil Statutes) to the Texas Lottery
29-3 Commission is considered to be a reference to the Texas Alcoholic
29-4 Beverage Commission until that date; and
29-5 (2) a reference in the Bingo Enabling Act (Article
29-6 179d, Vernon's Texas Civil Statutes) to the executive director of
29-7 the Texas Lottery Commission is considered to be a reference to the
29-8 administrator of the Texas Alcoholic Beverage Commission until that
29-9 date.
29-10 SECTION 26. (a) A change in law made by this Act does not
29-11 affect:
29-12 (1) the validity of any action taken by the Texas
29-13 Alcoholic Beverage Commission under the Bingo Enabling Act (Article
29-14 179d, Vernon's Texas Civil Statutes) before the effective date of
29-15 the change in law; or
29-16 (2) a civil, criminal, or administrative proceeding
29-17 completed before the effective date of this Act.
29-18 (b) A change in law made by this Act does not affect the
29-19 validity of a civil, criminal, or administrative proceeding,
29-20 including licensing or rulemaking, in progress on the effective
29-21 date of the change in law. A civil, criminal, or administrative
29-22 proceeding under the Bingo Enabling Act (Article 179d, Vernon's
29-23 Texas Civil Statutes) that is in progress on the effective date of
29-24 a transfer of functions under Section 25 of this Act continues as
29-25 if it had been initiated by the Texas Lottery Commission under the
29-26 law in effect on the effective date of the transfer.
29-27 (c) All forms, rules, and procedures adopted by the Texas
30-1 Alcoholic Beverage Commission for the administration and
30-2 enforcement of the Bingo Enabling Act (Article 179d, Vernon's Texas
30-3 Civil Statutes) and in effect on the effective date of a transfer
30-4 of functions under Section 25 of this Act remain in effect on or
30-5 after that date as if adopted by the Texas Lottery Commission until
30-6 the earlier of:
30-7 (1) the date the form, rule, or procedure is amended,
30-8 repealed, withdrawn, or otherwise superseded by the Texas Lottery
30-9 Commission; or
30-10 (2) the first anniversary of the effective date of a
30-11 transfer of functions under Section 25 of this Act.
30-12 (d) Before the first anniversary of the effective date of a
30-13 transfer of functions under Section 25 of this Act, the Texas
30-14 Lottery Commission shall review each form, rule, and procedure
30-15 adopted by the Texas Alcoholic Beverage Commission under the Bingo
30-16 Enabling Act (Article 179d, Vernon's Texas Civil Statutes) and may
30-17 specifically adopt any form, rule, or procedure. A form, rule, or
30-18 procedure that is not specifically adopted expires as provided by
30-19 Subsection (c) of this section.
30-20 (e) A license issued under the Bingo Enabling Act (Article
30-21 179d, Vernon's Texas Civil Statutes) and in effect on the effective
30-22 date of a transfer of functions under Section 25 of this Act
30-23 remains in effect according to its terms as if issued by the Texas
30-24 Lottery Commission until the license expires or is revoked or
30-25 surrendered.
30-26 (f) The change in law made by this Act does not affect taxes
30-27 imposed under the Bingo Enabling Act (Article 179d, Vernon's Texas
31-1 Civil Statutes) before the effective date of this Act, and the law
31-2 in effect before the effective date of this Act is continued in
31-3 effect for purposes of the liability for and collection and
31-4 allocation of those taxes. The Texas Alcoholic Beverage
31-5 Commission, until the transfer of functions under Section 25 of
31-6 this Act, and the Texas Lottery Commission on and after the
31-7 transfer, may maintain a suspense account for any county or
31-8 municipality that imposed a tax under Section 3, Bingo Enabling
31-9 Act, before the effective date of this Act for not more than one
31-10 year after the effective date of this Act to cover tax refunds and
31-11 to redeem dishonored checks and drafts deposited in connection with
31-12 the taxes imposed by the county or municipality.
31-13 (g) A change in law made by this Act applies only to an
31-14 offense committed on or after September 1, 1993. For the purposes
31-15 of this subsection, an offense is committed before September 1,
31-16 1993, if any element of the offense occurs before that date.
31-17 (h) An offense committed before September 1, 1993, is
31-18 covered by the law in effect when the offense was committed, and
31-19 the former law is continued in effect for that purpose.
31-20 SECTION 27. The importance of this legislation and the
31-21 crowded condition of the calendars in both houses create an
31-22 emergency and an imperative public necessity that the
31-23 constitutional rule requiring bills to be read on three several
31-24 days in each house be suspended, and this rule is hereby suspended.