AN ACT 1-1 relating to registration of and reporting by certain charitable 1-2 organizations; providing penalties. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. SCOPE OF ACT. The solicitation of contributions 1-5 from persons in this state shall be considered to be engaging in 1-6 telephone solicitation in Texas, regardless of where the 1-7 solicitation originates. 1-8 SECTION 2. DEFINITIONS. In this Act: 1-9 (1) "Charitable organization" means a person, other 1-10 than a governmental law enforcement agency or organization, who 1-11 solicits contributions or funds and is or holds himself, herself, 1-12 or itself out to be established or operating for a charitable 1-13 purpose relating to law enforcement, including nongovernmental law 1-14 enforcement organizations, nongovernmental law enforcement 1-15 publications, and survivors of law enforcement officers who are 1-16 killed in the line of duty. 1-17 (2) "Commercial telephone solicitor" means a person 1-18 who is retained by a charitable organization to solicit 1-19 contributions or funds by telephone, whether done individually or 1-20 through another person under the direction of the commercial 1-21 telephone solicitor. The term does not include a bona fide 1-22 employee, officer, director, or volunteer of a charitable 1-23 organization. 2-1 (3) "Contribution" means the promise to give or the 2-2 gift of money, credit, property, financial assistance, or other 2-3 thing of any kind or value, except volunteer services. The term 2-4 does not include bona fide fees, dues, or assessments paid by 2-5 members if membership is not conferred solely as consideration for 2-6 making a contribution in response to a telephone solicitation. 2-7 (4) "Knowingly" means with actual awareness, but 2-8 actual awareness may be inferred if objective manifestations 2-9 indicate that a person acted with actual awareness. 2-10 (5) "Person" means an individual, partnership, 2-11 corporation, association, or other legal entity. 2-12 (6) "Telephone solicitation" means the use of a 2-13 telephone to solicit another person to make a charitable 2-14 contribution to an organization. 2-15 SECTION 3. REGISTER TO BE MAINTAINED. (a) The attorney 2-16 general shall establish and maintain a register of charitable 2-17 organizations subject to this Act. 2-18 (b) All documents required to be filed with the attorney 2-19 general under this Act are public information and shall be 2-20 available to the public under the open records law, Chapter 552, 2-21 Government Code, except those documents that identify the donors of 2-22 a charitable organization, which information is confidential and is 2-23 not subject to disclosure. 2-24 SECTION 4. REGISTRATION. (a) The attorney general shall 2-25 maintain a registry of charitable organizations that submit to the 3-1 attorney general completed registration statements that contain: 3-2 (1) the legal name and each assumed name, the mailing 3-3 address and street address, and each telephone number and facsimile 3-4 number of each office, chapter, local unit, branch, and affiliate 3-5 of the charitable organization; 3-6 (2) the employer identification number of the 3-7 charitable organization; 3-8 (3) the name, title, address, and telephone number of 3-9 each officer, director, and executive director or other chief 3-10 operating officer of the charitable organization; 3-11 (4) the name of each officer, director, or employee 3-12 who is compensated by the charitable organization or who has 3-13 custody and control of funds of the charitable organization and who 3-14 has been convicted of or pleaded nolo contendere to a misdemeanor 3-15 involving fraud or the theft, misappropriation, misapplication, or 3-16 misuse of property of another, or any felony, including the offense 3-17 and the state, court, and date of each conviction or plea of nolo 3-18 contendere; 3-19 (5) the date the charitable organization was 3-20 incorporated and the state of incorporation or, if not 3-21 incorporated, the type of organization and the date established; 3-22 the day and month on which the organization's fiscal year ends; and 3-23 whether the organization is eligible to receive tax-deductible 3-24 contributions under Section 170, Internal Revenue Code of 1986 (26 3-25 U.S.C. Section 170); 4-1 (6) a statement as to whether the organization has 4-2 applied for or been granted tax exempt status by the Internal 4-3 Revenue Service and, if so, the date of the application, the date 4-4 the exemption was granted or denied, the Internal Revenue Code 4-5 section on which the application was based, and a statement as to 4-6 whether or when the tax exemption has ever been denied, revoked, or 4-7 modified; 4-8 (7) the date the organization began doing business in 4-9 this state and the name and address of the organization's 4-10 registered agent in this state; 4-11 (8) a statement of the charitable organization's 4-12 charitable purposes and a list of the programs for which funds are 4-13 solicited; 4-14 (9) a statement that includes: 4-15 (A) the names, addresses, and telephone numbers 4-16 of the organization's accountants and auditors and the method of 4-17 accounting used; 4-18 (B) a statement that the charitable organization 4-19 has attempted in good faith to comply with all Texas county and 4-20 municipal ordinances regarding telephone solicitation that have 4-21 been filed with the attorney general or, if none apply, a statement 4-22 to that effect; 4-23 (C) for charitable organizations that engage the 4-24 services of commercial telephone solicitors, the name and address 4-25 of each commercial telephone solicitor engaged in the preceding 12 5-1 months, as well as written confirmation from the commercial 5-2 telephone solicitor that it has complied with all state and local 5-3 registration laws; 5-4 (D) the amount paid to commercial telephone 5-5 solicitors during the preceding 12 months; 5-6 (E) the total contributions received during the 5-7 preceding 12 months; and 5-8 (F) the total fund-raising costs during the 5-9 preceding 12 months, computed pursuant to generally accepted 5-10 accounting principles; 5-11 (10) a copy of the charitable organization's most 5-12 recently filed Internal Revenue Service Form 990 and other federal 5-13 tax returns, including all supplements, amendments, and attachments 5-14 to those returns and requests for extensions to file those returns 5-15 or, if the charitable organization does not file federal tax 5-16 returns: 5-17 (A) a statement as to the reason none is filed; 5-18 and 5-19 (B) the charitable organization's most recent 5-20 financial statements, including audited financial statements, if 5-21 any have been prepared; and 5-22 (11) a sworn statement verifying that the information 5-23 contained in the registration statement and all attachments to the 5-24 statement are true, correct, and complete to the best of the 5-25 affiant's knowledge. 6-1 (b) A charitable organization shall file its initial 6-2 registration statement before the 10th working day preceding the 6-3 date on which the organization begins telephone solicitation in 6-4 this state. 6-5 (c) Registration expires on the 15th day of the fifth month 6-6 after the last day of a charitable organization's fiscal year. 6-7 Renewal registration statements shall be filed on the same forms 6-8 required for initial registration statements and must include the 6-9 name and employer identification number of the charitable 6-10 organization and any changes to the information previously 6-11 submitted to the attorney general. For items on which there is no 6-12 change from the previous year's registration statement, "no change" 6-13 may be indicated. 6-14 (d) A filing fee not to exceed $50 must accompany the 6-15 initial registration statement. A $50 filing fee must accompany 6-16 all renewal registration statements. 6-17 (e) The registration statements shall be submitted on forms 6-18 prescribed or approved by the attorney general. 6-19 (f) A volunteer that has been authorized to solicit on 6-20 behalf of a charitable organization is not required to register 6-21 under this Act. 6-22 SECTION 5. BOND. A commercial telephone solicitor shall 6-23 post a surety bond with the secretary of state in the amount of 6-24 $50,000 issued by a surety company authorized to do business in 6-25 this state. 7-1 SECTION 6. NOTIFICATION OF NONCOMPLIANCE. (a) A charitable 7-2 organization that is not in compliance with this Act shall be 7-3 notified of noncompliance by the attorney general by first class 7-4 mail at the organization's last reported address. Noncompliance 7-5 includes failure to file any documents required by this Act or the 7-6 filing of incomplete or inaccurate documents. 7-7 (b) A charitable organization violates this Act if the 7-8 organization: 7-9 (1) fails to file complete documents within 30 days 7-10 after the date the notice required by Subsection (a) of this 7-11 section has been mailed; or 7-12 (2) knowingly files materially inaccurate documents. 7-13 SECTION 7. RECORDKEEPING; AUDIT POWERS OF ATTORNEY GENERAL. 7-14 (a) Each charitable organization required to file a registration 7-15 statement shall keep true books and records as to its activities 7-16 within this state in a form to enable it to accurately provide the 7-17 information required by this Act. The books and records shall be 7-18 retained for a period of at least three years after the end of the 7-19 period to which the registration statement relates. All books and 7-20 records of a charitable organization shall be made available for 7-21 inspection and copying by authorized personnel of the attorney 7-22 general on written request by authorized personnel of the attorney 7-23 general. 7-24 (b) A charitable organization shall make available the 7-25 information requested by authorized personnel of the attorney 8-1 general at the organization's principal place of business within 10 8-2 working days of the date of the request, or at a time and place as 8-3 may be agreed. 8-4 (c) The authority established by this section is in addition 8-5 to other statutory or common law audit or investigative authority 8-6 of the attorney general. 8-7 SECTION 8. REGISTRATION DOES NOT IMPLY ENDORSEMENT. 8-8 Registration under this Act does not imply endorsement by this 8-9 state or the attorney general, and charitable organizations are 8-10 prohibited from stating or implying to the contrary. 8-11 SECTION 9. REMEDIES. (a) The attorney general may 8-12 institute an action for failure to fully and accurately comply with 8-13 this Act and may obtain injunctive relief to restrain a person from 8-14 continuing a violation, cancellation or suspension of the 8-15 registration, an order restraining the person from doing business 8-16 in this state while violating this Act, a civil penalty of not more 8-17 than $25,000 per violation, or injunctive relief and a civil 8-18 penalty. A person who violates an injunction issued under this 8-19 section is liable to the state for a civil penalty of not less than 8-20 $100,000. 8-21 (b) The remedies authorized by this Act are not exclusive 8-22 but are in addition to any other procedure or remedy provided for 8-23 by other statutory or common law. 8-24 (c) In any proceeding successfully prosecuted by the 8-25 attorney general under this Act, the court may allow the attorney 9-1 general to recover civil penalties and the reasonable costs, 9-2 expenses, and attorney's fees incurred in bringing the suit. 9-3 SECTION 10. DEDICATION OF FEES AND CIVIL PENALTIES. In 9-4 addition to other money, all fees assessed under this Act and all 9-5 recovered expenses incurred in obtaining injunctive relief and 9-6 administrative and civil penalties authorized by this Act are 9-7 dedicated for use by the attorney general in enforcing and 9-8 administering this Act. Recovered expenses include investigative 9-9 costs, witness fees, attorney's fees, and deposition expenses. 9-10 SECTION 11. VENUE. An action under this Act shall be 9-11 brought in a court of competent jurisdiction in Travis County, in 9-12 the county in which the charitable organization has its principal 9-13 place of business or has a fixed and established place of business 9-14 at the time the suit is brought, or in the county in which 9-15 solicitation occurred. 9-16 SECTION 12. NOTICE TO CONTRIBUTORS; PROHIBITION. (a) If 9-17 less than 90 percent of the contributions or funds collected by a 9-18 charitable organization or commercial telephone solicitor are paid 9-19 by the charitable organization or commercial telephone solicitor to 9-20 a charitable organization, the commercial telephone solicitor shall 9-21 notify each person solicited by telephone, before accepting a 9-22 contribution or funds from the person, of the percentage of the 9-23 contributions or funds that will be paid to the organization for 9-24 which the contributions or funds are being solicited and the 9-25 percentage that will be retained by the solicitor. This 10-1 information shall also be included on any written statement mailed 10-2 to the contributor. 10-3 (b) A charitable organization or commercial telephone 10-4 solicitor may not make a telephone call to solicit contributions or 10-5 funds unless the call is made after 9 a.m. and before 7 p.m., 10-6 Monday through Friday. 10-7 SECTION 13. PROHIBITED PRACTICES. (a) A person may not 10-8 commit an unfair or deceptive act or practice in the conduct of 10-9 solicitations for a charitable organization. 10-10 (b) A person may not represent to a person solicited that a 10-11 contribution is to be used to benefit the survivors of a law 10-12 enforcement officer killed in the line of duty unless: 10-13 (1) 100 percent of the contributions collected are 10-14 used to benefit those survivors; or 10-15 (2) the person solicited is informed in writing of the 10-16 exact percentage of the contribution that will directly benefit 10-17 those survivors. 10-18 SECTION 14. RULES. The attorney general may adopt rules, 10-19 procedures, and forms that are consistent with and necessary for 10-20 the proper administration and enforcement of this Act. 10-21 SECTION 15. TRANSITION. (a) The changes in law made by 10-22 this Act apply only to a solicitation that takes place on or after 10-23 the effective date of this Act. A solicitation that takes place 10-24 before the effective date of this Act is governed by the law in 10-25 effect on the date of the solicitation, and the former law is 11-1 continued in effect for that purpose. 11-2 (b) A charitable organization engaging in telephone 11-3 solicitation in this state on the effective date of this Act that 11-4 is required to register under this Act shall file the 11-5 organization's initial registration statement required under this 11-6 Act before January 1, 1998. 11-7 SECTION 16. EFFECTIVE DATE. This Act takes effect September 11-8 1, 1997. 11-9 SECTION 17. EMERGENCY. The importance of this legislation 11-10 and the crowded condition of the calendars in both houses create an 11-11 emergency and an imperative public necessity that the 11-12 constitutional rule requiring bills to be read on three several 11-13 days in each house be suspended, and this rule is hereby suspended. _______________________________ _______________________________ President of the Senate Speaker of the House I hereby certify that S.B. No. 1581 passed the Senate on April 17, 1997, by a viva-voce vote; and that the Senate concurred in House amendments on May 28, 1997, by a viva-voce vote. _______________________________ Secretary of the Senate I hereby certify that S.B. No. 1581 passed the House, with amendments, on May 26, 1997, by a non-record vote. _______________________________ Chief Clerk of the House Approved: _______________________________ Date _______________________________ Governor