By:  Carona                                           S.B. No. 1581

         Line and page numbers may not match official copy.

         Bill not drafted by TLC or Senate E&E.

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to registration and reporting by certain organizations;

 1-2     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

 2-1     the Internal Revenue Code of 1986; or

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

 2-3     individuals.

 2-4                 (3)  "Charitable sales promotion" means any advertising

 2-5     or sale conducted by a person who represents that the purchase or

 2-6     use of goods or services offered by the person will benefit, in

 2-7     whole or in part, any charitable organization or charitable

 2-8     purpose.  The provision of advertising services to a charitable

 2-9     organization, either for compensation or as a donation, does not of

2-10     itself constitute a charitable sales promotion.

2-11                 (4)  "Commercial telephone solicitor" means a person

2-12     who is retained by a charitable organization to solicit

2-13     contributions by telephone, whether done individually or through

2-14     another person under the direction of the commercial telephone

2-15     solicitor.  The term does not include a bona fide employee,

2-16     officer, director, or volunteer of a charitable organization.

2-17                 (5)  "Contribution" means the promise to give or gift

2-18     of money, credit, property, financial assistance, or other thing of

2-19     any kind or value, except volunteer services.  The term does not

2-20     include bona fide fees, dues, or assessments paid by members if

2-21     membership is not conferred solely as consideration for making a

2-22     contribution in response to a telephone solicitation.

2-23                 (6)  "Knowingly" means with actual awareness, but

2-24     actual awareness may be inferred if objective manifestations

2-25     indicate that a person acted with actual awareness.

 3-1                 (7)  "Person" means an individual, partnership,

 3-2     corporation, association, or other legal entity.

 3-3                 (8)  "Telephone solicitation" means the use of a

 3-4     telephone to solicit another person to make a charitable

 3-5     contribution to an organization.

 3-6           SECTION 4.  EXEMPTION FROM REGISTRATION.  The following

 3-7     persons are not required to register under Section 6 of this Act:

 3-8                 (1)  a charitable organization that is exempt from

 3-9     federal income tax under Section 501(c) of the Internal Revenue

3-10     Code of 1986 and exempt from filing annual information returns with

3-11     the Internal Revenue Service under Section 6033 of the Internal

3-12     Revenue Code of 1986 and the treasury regulations issued under

3-13     Section 6033;

3-14                 (2)  an institution of higher education that has

3-15     current accreditation from a regional accrediting association and a

3-16     charitable organization controlled by or affiliated with and

3-17     designated by such an institution;

3-18                 (3)  a nonprofit hospital that is required by law to

3-19     file a financial report at least annually with a state and a

3-20     charitable organization controlled by or affiliated with and

3-21     designated by such a hospital; and

3-22                 (4)  a private foundation, as defined by Section 509(a)

3-23     of the Internal Revenue Code of 1986, that does not solicit.

3-24           SECTION 5.  REGISTER TO BE MAINTAINED.  (a)  The attorney

3-25     general shall establish and maintain a register of charitable

 4-1     organizations subject to this Act.

 4-2           (b)  All documents required to be filed with the attorney

 4-3     general under this Act are public information and shall be

 4-4     available to the public under the open records law, Chapter 552,

 4-5     Government Code, except those documents that identify the donors of

 4-6     a charitable organization, which information is confidential and is

 4-7     not subject to disclosure.

 4-8           SECTION 6.  REGISTRATION.  (a)  The attorney general shall

 4-9     maintain a registry of charitable organizations that submit to the

4-10     attorney general completed registration statements that contain:

4-11                 (1)  the legal name and each assumed name, the mailing

4-12     address and street address, and each telephone number and facsimile

4-13     number of each office, chapter, local unit, branch, and affiliate

4-14     of the charitable organization;

4-15                 (2)  the employer identification number of the

4-16     charitable organization;

4-17                 (3)  the name, title, address, and telephone number of

4-18     each officer, director, and executive director or other chief

4-19     operating officer of the charitable organization;

4-20                 (4)  the name of each officer, director, or employee

4-21     who is compensated by the charitable organization or who has

4-22     custody and control of funds of the charitable organization and who

4-23     has been convicted of or pleaded nolo contendere to a misdemeanor

4-24     involving fraud or the theft, misappropriation, misapplication, or

4-25     misuse of property of another, or any felony, including the offense

 5-1     and the state, court, and date of each conviction or plea of nolo

 5-2     contendere;

 5-3                 (5)  the date the charitable organization was

 5-4     incorporated and the state of incorporation or, if not

 5-5     incorporated, the type of organization and the date established;

 5-6     the day and month on which the organization's fiscal year ends; and

 5-7     whether the organization is eligible to receive tax-deductible

 5-8     contributions under Section 170 of the Internal Revenue Code of

 5-9     1986;

5-10                 (6)  a statement as to whether the organization has

5-11     applied for or been granted tax exempt status by the Internal

5-12     Revenue Service and, if so, the date of the application, the date

5-13     the exemption was granted or denied, the Internal Revenue Code

5-14     section on which the application was based, and a statement as to

5-15     whether or when the tax exemption has ever been denied, revoked, or

5-16     modified;

5-17                 (7)  the date the organization began doing business in

5-18     this state and the name and address of the organization's

5-19     registered agent in this state;

5-20                 (8)  a statement of the charitable organization's

5-21     charitable purposes and a list of the programs for which funds are

5-22     solicited;

5-23                 (9)  a statement that includes:

5-24                       (A)  the names, addresses, and telephone numbers

5-25     of the organization's accountants and auditors and the method of

 6-1     accounting used;

 6-2                       (B)  a statement that the charitable organization

 6-3     has attempted in good faith to comply with all Texas county and

 6-4     municipal ordinances regarding telephone solicitation that have

 6-5     been filed with the attorney general or, if none apply, a statement

 6-6     to that effect;

 6-7                       (C)  for charitable organizations that engage the

 6-8     services of commercial telephone solicitors, the name and address

 6-9     of each commercial telephone solicitor engaged in the preceding 12

6-10     months, as well as written confirmation from the commercial

6-11     telephone solicitor that it has complied with all state and local

6-12     registration laws;

6-13                       (D)  the amount paid to commercial telephone

6-14     solicitors during the preceding 12 months;

6-15                       (E)  the total contributions received during the

6-16     preceding 12 months; and

6-17                       (F)  the total fund-raising costs during the

6-18     preceding 12 months, computed pursuant to generally accepted

6-19     accounting principles;

6-20                 (10)  a copy of the charitable organization's most

6-21     recently filed Internal Revenue Service Form 990 and other federal

6-22     tax returns, including all supplements, amendments, and attachments

6-23     to those returns and requests for extensions to file those returns

6-24     or, if the charitable organization does not file federal tax

6-25     returns:

 7-1                       (A)  a statement as to the reason none is filed;

 7-2     and

 7-3                       (B)  the charitable organization's most recent

 7-4     financial statements, including audited financial statements, if

 7-5     any have been prepared; and

 7-6                 (11)  a sworn statement verifying that the information

 7-7     contained in the registration statement and all attachments to the

 7-8     statement are true, correct, and complete to the best of the

 7-9     affiant's knowledge.

7-10           (b)  A charitable organization shall file its initial

7-11     registration statement before the 10th working day preceding the

7-12     date on which the organization begins telephone solicitation in

7-13     this state.

7-14           (c)  Registration expires on the 15th day of the fifth month

7-15     after the last day of a charitable organization's fiscal year.

7-16     Renewal registration statements shall be filed on the same forms

7-17     required for initial registration statements and must include the

7-18     name and employer identification number of the charitable

7-19     organization and any changes to the information previously

7-20     submitted to the attorney general.  For items on which there is no

7-21     change from the previous year's registration statement, "no change"

7-22     may be indicated.

7-23           (d)  A filing fee not to exceed $50 must accompany the

7-24     initial registration statement.  A $50 filing fee must accompany

7-25     all renewal registration statements.

 8-1           (e)  The registration statements shall be submitted on forms

 8-2     prescribed or approved by the attorney general.

 8-3           SECTION 7.  NOTIFICATION OF NONCOMPLIANCE.  (a)  A charitable

 8-4     organization that is not in compliance with  this Act shall be

 8-5     notified of noncompliance by the attorney general by first class

 8-6     mail at the organization's last reported address.  Noncompliance

 8-7     includes failure to file any documents required by this Act or the

 8-8     filing of incomplete or inaccurate documents.

 8-9           (b)  A charitable organization violates this Act if the

8-10     organization:

8-11                 (1)  fails to file complete documents within 30 days

8-12     after the date the notice required by Subsection (a) of this

8-13     section has been mailed; or

8-14                 (2)  knowingly files materially inaccurate documents.

8-15           SECTION 8.  RECORDKEEPING; AUDIT POWERS OF ATTORNEY GENERAL.

8-16     (a)  Each charitable organization required to file a registration

8-17     statement shall keep true books and records as to its activities

8-18     within this state in a form to enable it to accurately provide the

8-19     information required by this Act.  The books and records shall be

8-20     retained for a period of at least three years after the end of the

8-21     period to which the registration statement relates.  All books and

8-22     records of a charitable organization shall be made available for

8-23     inspection and copying by authorized personnel of the attorney

8-24     general on written request by authorized personnel of the attorney

8-25     general.

 9-1           (b)  A charitable organization shall make available the

 9-2     information requested by authorized personnel of the attorney

 9-3     general at the organization's principal place of business within 10

 9-4     working days of the date of the request, or at a time and place as

 9-5     may be agreed.

 9-6           (c)  The authority established by this section is in addition

 9-7     to other statutory or common law audit or investigative authority

 9-8     of the attorney general.

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

9-10     general under this Act are dedicated for use by the attorney

9-11     general during the biennium of receipt to administer this Act, to

9-12     enforce this Act, and to educate the public about this Act and

9-13     charitable organizations and solicitations generally.

9-14           SECTION 10.  REGISTRATION DOES NOT IMPLY ENDORSEMENT.

9-15     Registration under this Act does not imply endorsement by this

9-16     state or the attorney general, and charitable organizations are

9-17     prohibited from stating or implying to the contrary.

9-18           SECTION 11.  REMEDIES.  (a)  The attorney general may

9-19     institute an action for failure to fully and accurately comply with

9-20     this Act and may obtain injunctive relief to restrain a person from

9-21     continuing a violation, cancellation or suspension of the

9-22     registration, an order restraining the person from doing business

9-23     in this state while violating this Act, a civil penalty of not more

9-24     than $25,000 per violation, or injunctive relief and a civil

9-25     penalty.  A person who violates an injunction issued under this

 10-1    section is liable to the state for a civil penalty of not less than

 10-2    $100,000.

 10-3          (b)  The remedies authorized by this Act are not exclusive

 10-4    but are in addition to any other procedure or remedy provided for

 10-5    by other statutory or common law.

 10-6          (c)  In any proceeding successfully prosecuted by the

 10-7    attorney general under this Act, the court may allow the attorney

 10-8    general to recover civil penalties and the reasonable costs,

 10-9    expenses, and attorney's fees incurred in bringing the suit.

10-10          SECTION 12.  DEDICATION OF FEES AND CIVIL PENALTIES.  In

10-11    addition to other money, all fees assessed under this Act and all

10-12    recovered expenses incurred in obtaining injunctive relief and

10-13    administrative and civil penalties authorized by this Act are

10-14    dedicated for use by the attorney general in enforcing and

10-15    administering this Act.  Recovered expenses include investigative

10-16    costs, witness fees, attorney's fees, and deposition expenses.

10-17          SECTION 13.  VENUE.  An action under this Act shall be

10-18    brought in a court of competent jurisdiction in Travis County, in

10-19    the county in which the charitable organization has its principal

10-20    place of business or has a fixed and established place of business

10-21    at the time the suit is brought, or in the county in which

10-22    solicitation occurred.

10-23          SECTION 14.  RULES; ADVISORY COMMITTEE.  The attorney general

10-24    may adopt rules, procedures, and forms that are consistent with and

10-25    necessary for the proper administration and enforcement of this

 11-1    Act.

 11-2          SECTION 15.  TRANSITION.  (a)  The changes in law made by

 11-3    this Act apply only to a solicitation that takes place on or after

 11-4    the effective date of this Act.  A solicitation that takes place

 11-5    before the effective date of this Act is governed by the law in

 11-6    effect on the date of the solicitation, and the former law is

 11-7    continued in effect for that purpose.

 11-8          (b)  A charitable organization engaging in telephone

 11-9    solicitation in this state on the effective date of this Act that

11-10    is required to register under Section 6 of this Act shall file the

11-11    organization's initial registration statement required under that

11-12    section before January 1, 1998.

11-13          SECTION 16.  EFFECTIVE DATE.  This Act takes effect September

11-14    1, 1997.

11-15          SECTION 17.  EMERGENCY.  The importance of this legislation

11-16    and the crowded condition of the calendars in both houses create an

11-17    emergency and an imperative public necessity that the

11-18    constitutional rule requiring bills to be read on three several

11-19    days in each house be suspended, and this rule is hereby suspended.