Bill not drafted by TLC or Senate E&E.

      Line and page numbers may not match official copy.

      By Coleman                                      H.B. No. 2771

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the registration of and reporting by charitable

 1-3     organizations; providing penalties.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Chapter 20, Title 132, Revised Statutes, is

 1-6     amended by adding Article 9023d to read as follows:

 1-7           Art. 9023d.   REGISTRATION AND REPORTING BY CHARITABLE

 1-8     ORGANIZATIONS

 1-9           Sec. 1.  SCOPE OF ACT; SHORT TITLE.  (a)  Except as provided

1-10     by this Act, this Act applies to all charitable organizations doing

1-11     business in this state.  In addition to other acts that may

1-12     constitute doing business in this state, the solicitation of

1-13     contributions from persons in this state shall be considered to be

1-14     doing business in Texas, regardless of where the solicitation

1-15     originates.

1-16           (b)  This article may be cited as the Charities Registration

1-17     and Reporting Act.

1-18           (c)  This Act does not apply to organizations subject to

1-19     Article 9023b, Revised Statutes, or Chapter 920, Acts of the 73rd

1-20     Legislature, Regular Session, 1993 (Article 9023c, Vernon's Texas

1-21     Civil Statutes).

1-22           Sec. 2.  CONSTRUCTION AND APPLICATION.  (a)  This Act shall

1-23     be applied to promote its underlying purposes, which are to

1-24     encourage contributions to legitimate charitable organizations

 2-1     through public awareness and donor education and to prevent persons

 2-2     from posing as charitable organizations and from using misleading

 2-3     fund-raising practices, because those activities are harmful to

 2-4     legitimate charitable organizations and to the citizens of this

 2-5     state.

 2-6           (b)  This Act may not be construed to unreasonably burden

 2-7     legitimate charitable organizations.

 2-8           Sec. 3.  DEFINITIONS.  (a)  In this Act:

 2-9                 (1)  "Charitable organization" means:

2-10                       (A)  a person who is exempt or has applied for

2-11     exemption from federal income tax under Section 501(c)(3) of the

2-12     Internal Revenue Code of 1986;

2-13                       (B)  a person who solicits contributions and is

2-14     exempt or has applied for exemption from federal income tax under

2-15     Section 501(c)(4) or 501(c)(10) of the Internal Revenue Code of

2-16     1986; or

2-17                       (C)  a person who solicits contributions and is

2-18     or holds himself, herself, or itself out to be established or

2-19     operating for a charitable purpose, except for commercial

2-20     coventurers and volunteers that have been authorized to solicit on

2-21     behalf of a charitable organization that is registered under this

2-22     Act.

2-23                 (2)  "Charitable purpose" means:

2-24                       (A)  a purpose described by Section 501(c)(3) of

2-25     the Internal Revenue Code of 1986; or

2-26                       (B)  the provision of assistance to needy

2-27     individuals.

2-28                 (3)  "Charitable sales promotion" means any advertising

2-29     or sale conducted by a person who represents that the purchase or

2-30     use of goods or services offered by the person will benefit, in

 3-1     whole or in part, any charitable organization or charitable

 3-2     purpose.  The provision of advertising services to a charitable

 3-3     organization, either for compensation or as a donation, does not of

 3-4     itself constitute a charitable sales promotion.

 3-5                 (4)  "Commercial coventurer" means a person who:

 3-6                       (A)  for profit regularly and primarily is

 3-7     engaged in trade or commerce other than in connection with

 3-8     soliciting for charitable organizations or charitable purposes; and

 3-9                       (B)  conducts a charitable sales promotion.

3-10                 (5)  "Commercial solicitor" means a person who is

3-11     retained by a charitable organization to solicit contributions,

3-12     whether done individually or through another person under the

3-13     direction of the commercial solicitor.  The term does not include a

3-14     fund-raising counsel or a bona fide employee, officer, director, or

3-15     volunteer of a charitable organization.  A person who advises

3-16     another person to make a charitable contribution is not considered,

3-17     solely as the result of that advice, to be a commercial solicitor.

3-18                 (6)  "Contribution" means the promise to give or gift

3-19     of money, credit, property, financial assistance, or other thing of

3-20     any kind or value, except volunteer services.  The term does not

3-21     include bona fide fees, dues, or assessments paid by members if

3-22     membership is not conferred solely as consideration for making a

3-23     contribution in response to a solicitation.

3-24                 (7)  "Fund-raising counsel" means any person who for

3-25     compensation consults with a charitable organization or who plans,

3-26     manages, advises, or assists with respect to the solicitation of

3-27     contributions for or on behalf of a charitable organization, but

3-28     who does not have custody and control over contributions or other

3-29     receipts from a solicitation or authority to pay expenses

3-30     associated with a solicitation and who does not solicit, employ,

 4-1     procure, or engage any compensated person to solicit contributions.

 4-2     The term does not include a bona fide officer, volunteer, or

 4-3     employee of a charitable organization.

 4-4                 (8)  "Knowingly" means with actual awareness, but

 4-5     actual awareness may be inferred if objective manifestations

 4-6     indicate that a person acted with actual awareness.

 4-7                 (9)  "Person" means an individual, partnership,

 4-8     corporation, association, or other legal entity.

 4-9           (b)  For the purposes of this Act, a person has custody and

4-10     control of funds of a charitable organization if the person has the

4-11     authority to direct the use of the funds, expend the funds,

4-12     withdraw the funds, or sign on an account of the charitable

4-13     organization.  A person does not have custody and control of funds

4-14     of a charitable organization if the person simply has possession of

4-15     the funds and the person's only authority from the charitable

4-16     organization with respect to the funds is to forward the funds for

4-17     deposit by the charitable organization.

4-18           (c)  In this Act, a solicitation is the direct or indirect

4-19     request for a contribution on the plea or representation that the

4-20     contribution, or any portion of the contribution, will be used for

4-21     a charitable purpose or to benefit a charitable organization.  A

4-22     solicitation is considered to have occurred regardless of whether

4-23     the person making the solicitation receives any contribution.

4-24     Without limiting the scope of this subsection, the following are

4-25     methods of requesting contributions:

4-26                 (1)  an oral or written request;

4-27                 (2)  publicizing a request in newspapers, on the radio

4-28     or television, or by any telecommunications device or other manner

4-29     of transmitting information to the public;

4-30                 (3)  the distribution, circulation, posting, or

 5-1     publishing of a handbill, written advertisement, or other

 5-2     publication;

 5-3                 (4)  offering for sale an advertisement, book, card,

 5-4     coupon, ticket, membership, merchandise, subscription, flower,

 5-5     candy, or other tangible item if any appeal is made for a

 5-6     charitable organization or charitable purpose, if the name of a

 5-7     charitable organization is used or referred to in the appeal as an

 5-8     inducement or reason for making the sale, or if a statement is made

 5-9     that the whole or any part of the proceeds from the sale will be

5-10     used for any charitable purpose or to benefit any charitable

5-11     organization; or

5-12                 (5)  the use or employment of a canister, card,

5-13     receptacle, or similar device for the collection of money or other

5-14     things of value in connection with which an appeal is made for any

5-15     charitable organization or charitable purpose.

5-16           (d)  A request for a contribution by a charitable

5-17     organization made solely to its current and former trustees,

5-18     officers, directors, members, employees, students, advisory boards,

5-19     or volunteers is not a solicitation for the purpose of this Act.

5-20           Sec. 4.  EXEMPTION FROM REGISTRATION.  (a)  Except as

5-21     provided by Subsection (b) of this section, the following persons

5-22     are not required to register under Section 6 of this Act:

5-23                 (1)  a charitable organization that is exempt from

5-24     federal income tax under Section 501(c)(3) of the Internal Revenue

5-25     Code of 1986 and exempt from filing annual information returns with

5-26     the Internal Revenue Service under Section 6033 of the Internal

5-27     Revenue Code of 1986 and the treasury regulations issued under

5-28     Section 6033;

5-29                 (2)  an institution of higher education that has

5-30     current accreditation from a regional accrediting association and a

 6-1     charitable organization controlled by or affiliated with and

 6-2     designated by such an institution;

 6-3                 (3)  a nonprofit hospital that is required by law to

 6-4     file a financial report at least annually with a state and a

 6-5     charitable organization controlled by or affiliated with and

 6-6     designated by such a hospital; and

 6-7                 (4)  a private foundation, as defined by Section 509(a)

 6-8     of the Internal Revenue Code of 1986, that does not solicit.

 6-9           (b)  In any year in which a person described by Subsection

6-10     (a) of this section engages the services of a commercial solicitor,

6-11     the person shall register, by filing a registration statement and

6-12     filing fee in accordance with Section 6 of this Act, before the

6-13     10th working day preceding the effective date of the contract with

6-14     the commercial solicitor.

6-15           Sec. 5.  REGISTER TO BE MAINTAINED.  (a)  The attorney

6-16     general shall establish and maintain a register of charitable

6-17     organizations subject to this Act.

6-18           (b)  All documents required to be filed with the attorney

6-19     general under this Act are public information and shall be

6-20     available to the public under the open records law, Chapter 552,

6-21     Government Code, except those documents that identify the donors of

6-22     a charitable organization, which information is confidential and is

6-23     not subject to disclosure.

6-24           Sec. 6.  REGISTRATION.  (a)  The attorney general shall

6-25     maintain a registry of charitable organizations that submit to the

6-26     attorney general completed registration statements that contain:

6-27                 (1)  the legal name and each assumed name, the mailing

6-28     address and street address, and each telephone number and facsimile

6-29     number of each office, chapter, local unit, branch, and affiliate

6-30     of the charitable organization;

 7-1                 (2)  the employer identification number of the

 7-2     charitable organization;

 7-3                 (3)  the name, title, address, and telephone number of

 7-4     each officer, director, and executive director or other chief

 7-5     operating officer of the charitable organization;

 7-6                 (4)  the name of each officer, director, or employee

 7-7     who is compensated by the charitable organization or who has

 7-8     custody and control of funds of the charitable organization and who

 7-9     has been convicted of or pleaded nolo contendere to a misdemeanor

7-10     involving fraud or the theft, misappropriation, misapplication, or

7-11     misuse of property of another, or any felony, including the offense

7-12     and the state, court, and date of each conviction or plea of nolo

7-13     contendere;

7-14                 (5)  the date the charitable organization was

7-15     incorporated and the state of incorporation or, if not

7-16     incorporated, the type of organization and the date established;

7-17     the day and month on which the organization's fiscal year ends; and

7-18     whether the organization is eligible to receive tax-deductible

7-19     contributions under Section 170 of the Internal Revenue Code of

7-20     1986;

7-21                 (6)  a statement as to whether the organization has

7-22     applied for or been granted tax exempt status by the Internal

7-23     Revenue Service and, if so, the date of the application, the date

7-24     the exemption was granted or denied, the Internal Revenue Code

7-25     section under which the application was based, and a statement as

7-26     to whether or when the tax exemption has ever been denied, revoked,

7-27     or modified;

7-28                 (7)  the date the organization began doing business in

7-29     this state and the name and address of the organization's

7-30     registered agent in this state;

 8-1                 (8)  a statement of the charitable organization's

 8-2     charitable purposes and, if the organization solicits

 8-3     contributions, a list of the programs for which funds are

 8-4     solicited;

 8-5                 (9)  a list of all governmental entities from which the

 8-6     charitable organization received funds in the preceding 12 months

 8-7     and a statement of the percentage of the total funds received in

 8-8     the preceding 12 months received from individual and corporate

 8-9     donors, private foundations, combined campaigns, governmental

8-10     entities, and persons who are exempt from federal income taxation

8-11     under Section 501(c)(3), 501(c)(4), or 501(c)(10) of the Internal

8-12     Revenue Code of 1986;

8-13                 (10)  for charitable organizations that solicit

8-14     contributions from persons other than prior donors or persons who

8-15     have used the services of the charitable organization or the direct

8-16     beneficiaries or families of direct beneficiaries of the charitable

8-17     organization, a statement that includes:

8-18                       (A)  whether the charitable organization or any

8-19     of its directors, officers, agents, or employees who are

8-20     compensated by the charitable organization or who have custody and

8-21     control of the funds of the charitable organization, has been

8-22     enjoined by a government agency or court from soliciting, has had a

8-23     registration denied or revoked, has been the subject of any court

8-24     or administrative proceeding regarding any solicitation or

8-25     registration, or has entered into a voluntary agreement of

8-26     compliance;

8-27                       (B)  a list of all states in which the charitable

8-28     organization is registered or has been registered, including dates

8-29     of registration, registration numbers, any other names under which

8-30     the charitable organization was or is registered, and the dates and

 9-1     types of solicitation conducted in each state;

 9-2                       (C)  the name and address of each individual in

 9-3     the charitable organization who is responsible for custody and

 9-4     control of funds, distribution of funds, fund-raising, or custody

 9-5     of records or who is authorized to sign checks or make withdrawals;

 9-6     information required by this paragraph is confidential and is not

 9-7     subject to disclosure under the open records law, Chapter 552,

 9-8     Government Code;

 9-9                       (D)  the names, addresses, and telephone numbers

9-10     of the organization's accountants and auditors and the method of

9-11     accounting used;

9-12                       (E)  a statement that the charitable organization

9-13     has attempted in good faith to comply with all Texas county and

9-14     municipal ordinances regarding solicitation that have been filed

9-15     with the attorney general or, if none apply, a statement to that

9-16     effect;

9-17                       (F)  for charitable organizations that engage the

9-18     services of commercial solicitors, the name and address of each

9-19     commercial solicitor engaged in the preceding 12 months, as well as

9-20     written confirmation from the commercial solicitor that it has

9-21     complied with all state and local registration laws;

9-22                       (G)  the amount paid to commercial solicitors

9-23     during the preceding 12 months;

9-24                       (H)  the total contributions received during the

9-25     preceding 12 months; and

9-26                       (I)  the total fund-raising costs during the

9-27     preceding 12 months, calculated pursuant to generally accepted

9-28     accounting principles;

9-29                 (11)  a copy of the charitable organization's most

9-30     recently filed Internal Revenue Service Form 990 and other federal

 10-1    tax returns, including all supplements, amendments, and attachments

 10-2    to those returns and requests for extensions to file those returns

 10-3    or, if the charitable organization does not file federal tax

 10-4    returns:

 10-5                      (A)  a statement as to the reason none is filed;

 10-6    and

 10-7                      (B)  the charitable organization's most recent

 10-8    financial statements, including audited financial statements, if

 10-9    any have been prepared; and

10-10                (12)  a sworn statement verifying that the information

10-11    contained in the registration statement and all attachments to the

10-12    statement are true, correct, and complete to the best of the

10-13    affiant's knowledge.

10-14          (b)  A charitable organization shall file its initial

10-15    registration statement before the 10th working day preceding the

10-16    date on which the organization begins doing business in this state.

10-17          (c)  Registration expires on the 15th day of the fifth month

10-18    following the close of a charitable organization's fiscal year.

10-19    Renewal registration statements shall be filed on the same forms

10-20    required for initial registration statements and must include the

10-21    name and employer identification number of the charitable

10-22    organization and any changes to the information previously

10-23    submitted to the attorney general.  For items on which there is no

10-24    change from the previous year's registration statement, "no change"

10-25    may be indicated.

10-26          (d)  A filing fee not to exceed $75 shall accompany the

10-27    initial registration statement.  A $75 filing fee shall accompany

10-28    all renewal registration statements.

10-29          (e)  The registration statements shall be submitted on forms

10-30    prescribed or approved by the attorney general.

 11-1          Sec. 7.  NOTIFICATION OF NONCOMPLIANCE.  (a)  A charitable

 11-2    organization that is not in compliance with this Act shall be

 11-3    notified of noncompliance by the attorney general by first class

 11-4    mail at the organization's last reported address.  Noncompliance

 11-5    includes failure to file any documents required by this Act or the

 11-6    filing of incomplete or inaccurate documents.

 11-7          (b)  A charitable organization violates this Act if it fails

 11-8    to file complete documents within 30 days of the date the notice

 11-9    required by Subsection (a) of this section has been mailed or if it

11-10    knowingly files materially inaccurate documents.

11-11          Sec. 8.  RECORD KEEPING; AUDIT POWERS OF ATTORNEY GENERAL.

11-12    (a)  Each charitable organization required to file a registration

11-13    statement shall keep true books and records as to its activities

11-14    within this state in a form to enable it to accurately provide the

11-15    information required by this Act.  The books and records shall be

11-16    retained for a period of at least three years after the end of the

11-17    period to which the registration statement relates.  All books and

11-18    records of a charitable organization shall be made available for

11-19    inspection and copying by authorized personnel of the attorney

11-20    general on written request by authorized personnel of the attorney

11-21    general.

11-22          (b)  A charitable organization shall make available the

11-23    information requested by authorized personnel of the attorney

11-24    general at the organization's principal place of business within 10

11-25    working days of the date of the request, or at a time and place as

11-26    may be agreed.

11-27          (c)  The authority established by this section is in addition

11-28    to other statutory or common law audit or investigative authority

11-29    of the attorney general.

11-30          Sec. 9.  USE OF FEES.  (a)  All fees collected by the

 12-1    attorney general under this Act are dedicated for use by the

 12-2    attorney general during the biennium of receipt to administer this

 12-3    Act, to enforce this Act, and to educate the public about this Act

 12-4    and charitable organizations and solicitations generally.

 12-5          (b)  At the end of each biennium, the attorney general shall

 12-6    file with the Legislative Budget Board a report that shows the

 12-7    amounts of fees collected by the attorney general under this Act

 12-8    and the uses for which the collected fees were expended.

 12-9          Sec. 10.  TOLL-FREE TELEPHONE LINE.  The attorney general

12-10    shall establish and operate a toll-free telephone line.  The public

12-11    may use the toll-free number to:

12-12                (1)  obtain information concerning a charitable

12-13    organization that has registered under this Act; or

12-14                (2)  report an alleged violation of this Act.

12-15          Sec. 11.  REGISTRATION DOES NOT IMPLY ENDORSEMENT.

12-16    Registration under this Act does not imply endorsement by this

12-17    state or the attorney general, and charitable organizations are

12-18    prohibited from stating or implying to the contrary.

12-19          Sec. 12.  REMEDIES.  (a)  The attorney general may institute

12-20    an action for failure to fully and accurately comply with any

12-21    provision of this Act and may obtain injunctive relief to restrain

12-22    a person from continuing a violation, cancellation or suspension of

12-23    the registration, an order restraining the person from doing

12-24    business in this state while violating this Act, a civil penalty of

12-25    not more than $25,000 per violation, or injunctive relief and a

12-26    civil penalty.  A person who violates an injunction issued under

12-27    this section is liable to the state for a civil penalty of not less

12-28    than $100,000.

12-29          (b)  The remedies authorized by this Act are not exclusive

12-30    but are in addition to any other procedure or remedy provided for

 13-1    by other statutory or common law.

 13-2          (c)  In any proceeding successfully prosecuted by the

 13-3    attorney general under this Act, the court may allow the attorney

 13-4    general to recover civil penalties and the reasonable costs,

 13-5    expenses, and attorney's fees incurred in bringing the suit.

 13-6          Sec. 13.  DEDICATION OF FEES AND CIVIL PENALTIES.  In

 13-7    addition to other money, all fees assessed under this Act and all

 13-8    recovered expenses incurred in obtaining injunctive relief and

 13-9    administrative and civil penalties authorized by this Act are

13-10    dedicated for use by the attorney general.  Recovered expenses

13-11    include, but are not limited to, investigative costs, witness fees,

13-12    attorney's fees, and deposition expenses.  That money may be

13-13    expended only for purposes of enforcing and administering this Act

13-14    and may not be appropriated for any other purpose.

13-15          Sec. 14.  SERVICE ON SECRETARY OF STATE.  (a)  The secretary

13-16    of state is an agent for service of process or complaint on a

13-17    charitable organization that:

13-18                (1)  is required by this state to designate or maintain

13-19    a resident agent but has not designated or maintained a resident

13-20    agent for service of process;

13-21                (2)  has one or more resident agents for service of

13-22    process, but two unsuccessful attempts have been made on different

13-23    business days to serve each agent; or

13-24                (3)  is not required to designate an agent for service

13-25    in this state.

13-26          (b)  Service on the secretary of state may be made by

13-27    certified mail, return receipt requested, by the clerk of the court

13-28    in which the case is pending, by the party or representative of the

13-29    party, or by any other method authorized by statute or the Texas

13-30    Rules of Civil Procedure for service on the secretary of state.

 14-1          (c)  If the secretary of state is served with process for a

 14-2    charitable organization, the secretary of state shall require a

 14-3    statement of the name and last known address of the charitable

 14-4    organization and shall immediately mail a copy of the process to

 14-5    the charitable organization by registered mail or by certified

 14-6    mail, return receipt requested.

 14-7          Sec. 15.  VENUE.  An action under this Act shall be brought

 14-8    in a court of competent jurisdiction in Travis County, in the

 14-9    county in which the charitable organization has its principal place

14-10    of business or has a fixed and established place of business at the

14-11    time the suit is brought, or in the county in which solicitation

14-12    occurred.

14-13          Sec. 16.  RULES; ADVISORY COMMITTEE.  (a)  The attorney

14-14    general may adopt rules, procedures, and forms that are consistent

14-15    with and necessary for the proper administration and enforcement of

14-16    this Act.

14-17          (b)  The attorney general shall annually appoint an advisory

14-18    committee, consisting of representatives of charitable

14-19    organizations and including at least one representative from a

14-20    charitable organization in each of the following categories of

14-21    charitable organizations that are subject to the requirements of

14-22    this chapter:  religious charities, educational charities, the

14-23    United Way, health-related charities, and charitable organizations

14-24    that are exempt from federal income taxation under Section

14-25    501(c)(4) or 501(c)(10) of the Internal Revenue Code of 1986.  The

14-26    advisory committee may assist the attorney general in preparing

14-27    rules, procedures, and forms authorized by this Act.  The advisory

14-28    committee may also assist the attorney general in developing a

14-29    public education program.

14-30          SECTION 2.  The changes in law made by this Act apply only to

 15-1    a solicitation that takes place on or after the effective date of

 15-2    this Act.  A solicitation that takes place before the effective

 15-3    date of this Act is governed by the law in effect on the date of

 15-4    the solicitation, and the former law is continued for that purpose.

 15-5          SECTION 3.  A charitable organization doing business in this

 15-6    state on the effective date of this Act that is required to

 15-7    register under Section 6, Article 9023d, Revised Statutes, as added

 15-8    by this Act, shall file the organization's initial registration

 15-9    statement required under that section before January 1, 1998.

15-10          SECTION 4.  This Act takes effect September 1, 1997.

15-11          SECTION 5.  The importance of this legislation and the

15-12    crowded condition of the calendars in both houses create an

15-13    emergency and an imperative public necessity that the

15-14    constitutional rule requiring bills to be read on three several

15-15    days in each house be suspended, and this rule is hereby suspended.