By:  Carona                                           S.B. No. 1581

                                A BILL TO BE ENTITLED

                                       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; SHORT TITLE.  (a)  Except as

 1-5     provided by this Act, this Act applies to all charitable

 1-6     organizations that engage in telephone solicitation in this state.

 1-7     The solicitation of contributions from persons in this state shall

 1-8     be considered to be engaging in telephone solicitation in Texas,

 1-9     regardless of where the solicitation originates.

1-10           (b)  This Act may be cited as the Charitable Telephone

1-11     Solicitation Act.

1-12           SECTION 2.  CONSTRUCTION.  This Act may not be construed to

1-13     unreasonably burden legitimate charitable organizations.

1-14           SECTION 3.  DEFINITIONS.  In this Act:

1-15                 (1)  "Charitable organization" means a person who

1-16     solicits contributions and is or holds himself, herself, or itself

1-17     out to be established or operating for a charitable purpose, except

1-18     for volunteers that have been authorized to solicit on behalf of a

1-19     charitable organization that is registered under this Act.

1-20                 (2)  "Charitable purpose" means:

1-21                       (A)  a purpose described by Section 501(c)(3) of

1-22     the Internal Revenue Code of 1986 (26 U.S.C. Section 501(c)(3)); or

1-23                       (B)  the provision of assistance to needy

1-24     individuals.

 2-1                 (3)  "Charitable sales promotion" means any advertising

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

 2-3     use of goods or services offered by the person will benefit, in

 2-4     whole or in part, any charitable organization or charitable

 2-5     purpose.  The provision of advertising services to a charitable

 2-6     organization, either for compensation or as a donation, does not of

 2-7     itself constitute a charitable sales promotion.

 2-8                 (4)  "Commercial telephone solicitor" means a person

 2-9     who is retained by a charitable organization to solicit

2-10     contributions by telephone, whether done individually or through

2-11     another person under the direction of the commercial telephone

2-12     solicitor.  The term does not include a bona fide employee,

2-13     officer, director, or volunteer of a charitable organization.

2-14                 (5)  "Contribution" means the promise to give or the

2-15     gift of money, credit, property, financial assistance, or other

2-16     thing of any kind or value, except volunteer services.  The term

2-17     does not include bona fide fees, dues, or assessments paid by

2-18     members if membership is not conferred solely as consideration for

2-19     making a contribution in response to a telephone solicitation.

2-20                 (6)  "Knowingly" means with actual awareness, but

2-21     actual awareness may be inferred if objective manifestations

2-22     indicate that a person acted with actual awareness.

2-23                 (7)  "Person" means an individual, partnership,

2-24     corporation, association, or other legal entity.

2-25                 (8)  "Telephone solicitation" means the use of a

2-26     telephone to solicit another person to make a charitable

2-27     contribution to an organization.

 3-1           SECTION 4.  EXEMPTION FROM REGISTRATION.  The following

 3-2     persons are not required to register under Section 6 of this Act:

 3-3                 (1)  a charitable organization that is exempt from

 3-4     federal income tax under Section 501(c), Internal Revenue Code of

 3-5     1986 (26 U.S.C. Section 501(c)), and exempt from filing annual

 3-6     information returns with the Internal Revenue Service under Section

 3-7     6033, Internal Revenue Code of 1986 (26 U.S.C. Section 6033), and

 3-8     the treasury regulations issued under that section;

 3-9                 (2)  a public or private institution of higher

3-10     education that has current accreditation from a regional

3-11     accrediting association and a charitable organization controlled by

3-12     or affiliated with and designated by such an institution;

3-13                 (3)  a nonprofit hospital that is required by law to

3-14     file a financial report at least annually with a state and a

3-15     charitable organization controlled by or affiliated with and

3-16     designated by such a hospital; and

3-17                 (4)  a private foundation, as defined by Section

3-18     509(a), Internal Revenue Code of 1986 (26 U.S.C. Section 509(a)),

3-19     that does not solicit.

3-20           SECTION 5.  REGISTER TO BE MAINTAINED.  (a)  The attorney

3-21     general shall establish and maintain a register of charitable

3-22     organizations subject to this Act.

3-23           (b)  All documents required to be filed with the attorney

3-24     general under this Act are public information and shall be

3-25     available to the public under the open records law, Chapter 552,

3-26     Government Code, except those documents that identify the donors of

3-27     a charitable organization, which information is confidential and is

 4-1     not subject to disclosure.

 4-2           SECTION 6.  REGISTRATION.  (a)  The attorney general shall

 4-3     maintain a registry of charitable organizations that submit to the

 4-4     attorney general completed registration statements that contain:

 4-5                 (1)  the legal name and each assumed name, the mailing

 4-6     address and street address, and each telephone number and facsimile

 4-7     number of each office, chapter, local unit, branch, and affiliate

 4-8     of the charitable organization;

 4-9                 (2)  the employer identification number of the

4-10     charitable organization;

4-11                 (3)  the name, title, address, and telephone number of

4-12     each officer, director, and executive director or other chief

4-13     operating officer of the charitable organization;

4-14                 (4)  the name of each officer, director, or employee

4-15     who is compensated by the charitable organization or who has

4-16     custody and control of funds of the charitable organization and who

4-17     has been convicted of or pleaded nolo contendere to a misdemeanor

4-18     involving fraud or the theft, misappropriation, misapplication, or

4-19     misuse of property of another, or any felony, including the offense

4-20     and the state, court, and date of each conviction or plea of nolo

4-21     contendere;

4-22                 (5)  the date the charitable organization was

4-23     incorporated and the state of incorporation or, if not

4-24     incorporated, the type of organization and the date established;

4-25     the day and month on which the organization's fiscal year ends; and

4-26     whether the organization is eligible to receive tax-deductible

4-27     contributions under Section 170, Internal Revenue Code of 1986 (26

 5-1     U.S.C. Section 170);

 5-2                 (6)  a statement as to whether the organization has

 5-3     applied for or been granted tax exempt status by the Internal

 5-4     Revenue Service and, if so, the date of the application, the date

 5-5     the exemption was granted or denied, the Internal Revenue Code

 5-6     section on which the application was based, and a statement as to

 5-7     whether or when the tax exemption has ever been denied, revoked, or

 5-8     modified;

 5-9                 (7)  the date the organization began doing business in

5-10     this state and the name and address of the organization's

5-11     registered agent in this state;

5-12                 (8)  a statement of the charitable organization's

5-13     charitable purposes and a list of the programs for which funds are

5-14     solicited;

5-15                 (9)  a statement that includes:

5-16                       (A)  the names, addresses, and telephone numbers

5-17     of the organization's accountants and auditors and the method of

5-18     accounting used;

5-19                       (B)  a statement that the charitable organization

5-20     has attempted in good faith to comply with all Texas county and

5-21     municipal ordinances regarding telephone solicitation that have

5-22     been filed with the attorney general or, if none apply, a statement

5-23     to that effect;

5-24                       (C)  for charitable organizations that engage the

5-25     services of commercial telephone solicitors, the name and address

5-26     of each commercial telephone solicitor engaged in the preceding 12

5-27     months, as well as written confirmation from the commercial

 6-1     telephone solicitor that it has complied with all state and local

 6-2     registration laws;

 6-3                       (D)  the amount paid to commercial telephone

 6-4     solicitors during the preceding 12 months;

 6-5                       (E)  the total contributions received during the

 6-6     preceding 12 months; and

 6-7                       (F)  the total fund-raising costs during the

 6-8     preceding 12 months, computed pursuant to generally accepted

 6-9     accounting principles;

6-10                 (10)  a copy of the charitable organization's most

6-11     recently filed Internal Revenue Service Form 990 and other federal

6-12     tax returns, including all supplements, amendments, and attachments

6-13     to those returns and requests for extensions to file those returns

6-14     or, if the charitable organization does not file federal tax

6-15     returns:

6-16                       (A)  a statement as to the reason none is filed;

6-17     and

6-18                       (B)  the charitable organization's most recent

6-19     financial statements, including audited financial statements, if

6-20     any have been prepared; and

6-21                 (11)  a sworn statement verifying that the information

6-22     contained in the registration statement and all attachments to the

6-23     statement are true, correct, and complete to the best of the

6-24     affiant's knowledge.

6-25           (b)  A charitable organization shall file its initial

6-26     registration statement before the 10th working day preceding the

6-27     date on which the organization begins telephone solicitation in

 7-1     this state.

 7-2           (c)  Registration expires on the 15th day of the fifth month

 7-3     after the last day of a charitable organization's fiscal year.

 7-4     Renewal registration statements shall be filed on the same forms

 7-5     required for initial registration statements and must include the

 7-6     name and employer identification number of the charitable

 7-7     organization and any changes to the information previously

 7-8     submitted to the attorney general.  For items on which there is no

 7-9     change from the previous year's registration statement, "no change"

7-10     may be indicated.

7-11           (d)  A filing fee not to exceed $50 must accompany the

7-12     initial registration statement.  A $50 filing fee must accompany

7-13     all renewal registration statements.

7-14           (e)  The registration statements shall be submitted on forms

7-15     prescribed or approved by the attorney general.

7-16           SECTION 7.  NOTIFICATION OF NONCOMPLIANCE.  (a)  A charitable

7-17     organization that is not in compliance with this Act shall be

7-18     notified of noncompliance by the attorney general by first class

7-19     mail at the organization's last reported address.  Noncompliance

7-20     includes failure to file any documents required by this Act or the

7-21     filing of incomplete or inaccurate documents.

7-22           (b)  A charitable organization violates this Act if the

7-23     organization:

7-24                 (1)  fails to file complete documents within 30 days

7-25     after the date the notice required by Subsection (a) of this

7-26     section has been mailed; or

7-27                 (2)  knowingly files materially inaccurate documents.

 8-1           SECTION 8.  RECORDKEEPING; AUDIT POWERS OF ATTORNEY GENERAL.

 8-2     (a)  Each charitable organization required to file a registration

 8-3     statement shall keep true books and records as to its activities

 8-4     within this state in a form to enable it to accurately provide the

 8-5     information required by this Act.  The books and records shall be

 8-6     retained for a period of at least three years after the end of the

 8-7     period to which the registration statement relates.  All books and

 8-8     records of a charitable organization shall be made available for

 8-9     inspection and copying by authorized personnel of the attorney

8-10     general on written request by authorized personnel of the attorney

8-11     general.

8-12           (b)  A charitable organization shall make available the

8-13     information requested by authorized personnel of the attorney

8-14     general at the organization's principal place of business within 10

8-15     working days of the date of the request, or at a time and place as

8-16     may be agreed.

8-17           (c)  The authority established by this section is in addition

8-18     to other statutory or common law audit or investigative authority

8-19     of the attorney general.

8-20           SECTION 9.  USE OF FEES.  All fees collected by the attorney

8-21     general under this Act are dedicated for use by the attorney

8-22     general during the biennium of receipt to administer this Act, to

8-23     enforce this Act, and to educate the public about this Act and

8-24     charitable organizations and solicitations generally.

8-25           SECTION 10.  REGISTRATION DOES NOT IMPLY ENDORSEMENT.

8-26     Registration under this Act does not imply endorsement by this

8-27     state or the attorney general, and charitable organizations are

 9-1     prohibited from stating or implying to the contrary.

 9-2           SECTION 11.  REMEDIES.  (a)  The attorney general may

 9-3     institute an action for failure to fully and accurately comply with

 9-4     this Act and may obtain injunctive relief to restrain a person from

 9-5     continuing a violation, cancellation or suspension of the

 9-6     registration, an order restraining the person from doing business

 9-7     in this state while violating this Act, a civil penalty of not more

 9-8     than $25,000 per violation, or injunctive relief and a civil

 9-9     penalty.  A person who violates an injunction issued under this

9-10     section is liable to the state for a civil penalty of not less than

9-11     $100,000.

9-12           (b)  The remedies authorized by this Act are not exclusive

9-13     but are in addition to any other procedure or remedy provided for

9-14     by other statutory or common law.

9-15           (c)  In any proceeding successfully prosecuted by the

9-16     attorney general under this Act, the court may allow the attorney

9-17     general to recover civil penalties and the reasonable costs,

9-18     expenses, and attorney's fees incurred in bringing the suit.

9-19           SECTION 12.  DEDICATION OF FEES AND CIVIL PENALTIES.  In

9-20     addition to other money, all fees assessed under this Act and all

9-21     recovered expenses incurred in obtaining injunctive relief and

9-22     administrative and civil penalties authorized by this Act are

9-23     dedicated for use by the attorney general in enforcing and

9-24     administering this Act.  Recovered expenses include investigative

9-25     costs, witness fees, attorney's fees, and deposition expenses.

9-26           SECTION 13.  VENUE.  An action under this Act shall be

9-27     brought in a court of competent jurisdiction in Travis County, in

 10-1    the county in which the charitable organization has its principal

 10-2    place of business or has a fixed and established place of business

 10-3    at the time the suit is brought, or in the county in which

 10-4    solicitation occurred.

 10-5          SECTION 14.  RULES.  The attorney general may adopt rules,

 10-6    procedures, and forms that are consistent with and necessary for

 10-7    the proper administration and enforcement of this Act.

 10-8          SECTION 15.  TRANSITION.  (a)  The changes in law made by

 10-9    this Act apply only to a solicitation that takes place on or after

10-10    the effective date of this Act.  A solicitation that takes place

10-11    before the effective date of this Act is governed by the law in

10-12    effect on the date of the solicitation, and the former law is

10-13    continued in effect for that purpose.

10-14          (b)  A charitable organization engaging in telephone

10-15    solicitation in this state on the effective date of this Act that

10-16    is required to register under Section 6 of this Act shall file the

10-17    organization's initial registration statement required under that

10-18    section before January 1, 1998.

10-19          SECTION 16.  EFFECTIVE DATE.  This Act takes effect September

10-20    1, 1997.

10-21          SECTION 17.  EMERGENCY.  The importance of this legislation

10-22    and the crowded condition of the calendars in both houses create an

10-23    emergency and an imperative public necessity that the

10-24    constitutional rule requiring bills to be read on three several

10-25    days in each house be suspended, and this rule is hereby suspended.