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A BILL TO BE ENTITLED
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AN ACT
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relating to measures to prevent and reduce fraudulent charitable |
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solicitations and theft during declared disasters, including |
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establishing a designation program for disaster relief nonprofit |
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organizations and financial institutions; creating a criminal |
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offense; increasing a criminal penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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ARTICLE 1. SHORT TITLE |
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SECTION 1.01. This Act shall be known as the Disaster Scam |
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Response Act. |
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ARTICLE 2. CONSUMER PROTECTION |
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SECTION 2.01. Chapter 418, Government Code, is amended by |
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adding Subchapter L to read as follows: |
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SUBCHAPTER L. DESIGNATION PROGRAM FOR DISASTER RELIEF NONPROFIT |
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ORGANIZATIONS AND FINANCIAL INSTITUTIONS |
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Sec. 418.401. DEFINITIONS. In this subchapter: |
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(1) "Designation program" means the designation |
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program established under this subchapter. |
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(2) "Declared disaster" means: |
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(A) a disaster declared by the president of the |
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United States; |
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(B) a state of disaster declared by the governor |
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under Section 418.014; or |
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(C) a local state of disaster declared by the |
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presiding officer of the governing body of a political subdivision |
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under Section 418.108. |
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Sec. 418.402. DESIGNATION PROGRAM FOR DISASTER RELIEF |
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DONATIONS; DESIGNATION NOT REQUIRED. (a) The secretary of state |
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shall establish and administer a designation program for political |
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subdivisions in this state to designate a nonprofit organization or |
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financial institution to solicit and accept donations for disaster |
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relief efforts during a declared disaster threatening the political |
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subdivision. |
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(b) The purpose of the designation program is to assist the |
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residents of each political subdivision of this state in |
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identifying a reputable nonprofit organization or financial |
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institution to which the residents may donate to support disaster |
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relief efforts during a declared disaster threatening the political |
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subdivision. |
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(c) A nonprofit organization or financial institution is |
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not required to receive a designation under the designation program |
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to solicit or accept donations in response to a declared disaster. |
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Sec. 418.403. DESIGNATION APPROVAL. (a) Each political |
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subdivision in this state shall select and submit to the secretary |
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of state in the manner prescribed by the secretary of state a |
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nonprofit organization or financial institution the political |
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subdivision proposes to designate under this subchapter to solicit |
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and accept disaster relief donations during a declared disaster |
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threatening the political subdivision. |
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(b) The secretary of state shall develop guidelines for |
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approving a nonprofit organization or financial institution a |
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political subdivision submits for designation under Subsection |
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(a). |
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Sec. 418.404. NOTICE OF DESIGNATION. (a) Each political |
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subdivision shall include in the political subdivision's emergency |
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management plan the name of the nonprofit organization or financial |
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institution approved for designation under the designation |
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program. |
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(b) Each political subdivision shall, on the political |
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subdivision's Internet website, publish: |
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(1) the name of and contact information for the |
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nonprofit organization or financial institution approved for |
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designation under the designation program; and |
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(2) information to assist individuals in avoiding |
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fraudulent charitable solicitations during a declared disaster. |
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SECTION 2.02. As soon as practicable after the effective |
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date of this Act, the secretary of state shall adopt rules to |
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implement Subchapter L, Chapter 418, Government Code, as added by |
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this article. |
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ARTICLE 3. CRIMINAL PENALTIES FOR DISASTER SCAMS |
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SECTION 3.01. Section 31.03, Penal Code, is amended by |
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amending Subsection (e) and adding Subsection (f-3) to read as |
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follows: |
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(e) Except as otherwise provided by this section |
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[Subsections (f) and (f-1)], an offense under this section is: |
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(1) a Class C misdemeanor if the value of the property |
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stolen is less than $100; |
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(2) a Class B misdemeanor if: |
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(A) the value of the property stolen is $100 or |
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more but less than $750; |
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(B) the value of the property stolen is less than |
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$100 and the defendant has previously been convicted of any grade of |
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theft; or |
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(C) the property stolen is a driver's license, |
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commercial driver's license, or personal identification |
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certificate issued by this state or another state; |
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(3) a Class A misdemeanor if the value of the property |
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stolen is $750 or more but less than $2,500; |
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(4) a state jail felony if: |
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(A) the value of the property stolen is $2,500 or |
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more but less than $30,000, or the property is less than 10 head of |
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sheep, swine, or goats or any part thereof under the value of |
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$30,000; |
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(B) regardless of value, the property is stolen |
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from the person of another or from a human corpse or grave, |
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including property that is a military grave marker; |
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(C) the property stolen is a firearm; |
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(D) the value of the property stolen is less than |
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$2,500 and the defendant has been previously convicted two or more |
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times of any grade of theft; |
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(E) the property stolen is an official ballot or |
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official carrier envelope for an election; |
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(F) the value of the property stolen is less than |
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$20,000 and the property stolen is: |
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(i) aluminum; |
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(ii) bronze; |
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(iii) copper; or |
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(iv) brass; [or] |
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(G) the cost of replacing the property stolen is |
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less than $30,000 and the property stolen is a catalytic converter; |
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or |
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(H) the value of the property stolen is less than |
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$30,000 and the property was stolen in a disaster area and came into |
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the actor's custody, possession, or control by virtue of the actor's |
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status or purported status as a disaster volunteer, as that term is |
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defined by Section 32.61; |
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(5) a felony of the third degree if the value of the |
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property stolen is $30,000 or more but less than $150,000, or the |
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property is: |
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(A) cattle, horses, or exotic livestock or exotic |
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fowl as defined by Section 142.001, Agriculture Code, stolen during |
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a single transaction and having an aggregate value of less than |
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$150,000; |
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(B) 10 or more head of sheep, swine, or goats |
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stolen during a single transaction and having an aggregate value of |
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less than $150,000; or |
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(C) a controlled substance, having a value of |
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less than $150,000, if stolen from: |
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(i) a commercial building in which a |
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controlled substance is generally stored, including a pharmacy, |
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clinic, hospital, nursing facility, or warehouse; or |
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(ii) a vehicle owned or operated by a |
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wholesale distributor of prescription drugs; |
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(6) a felony of the second degree if: |
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(A) the value of the property stolen is $150,000 |
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or more but less than $300,000; or |
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(B) the value of the property stolen is less than |
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$300,000 and the property stolen is an automated teller machine or |
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the contents or components of an automated teller machine; or |
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(7) a felony of the first degree if the value of the |
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property stolen is $300,000 or more. |
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(f-3) The increase in the punishment provided by Section |
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12.50 for an offense under this section does not apply if the |
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penalty described by Subsection (e)(4)(H) applies. |
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SECTION 3.02. Section 31.03(h), Penal Code, is amended by |
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adding Subdivision (9) to read as follows: |
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(9) "Disaster area" is an area that was, at the time of |
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the offense: |
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(A) subject to a disaster declaration issued by: |
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(i) the president of the United States |
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under the Robert T. Stafford Disaster Relief and Emergency |
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Assistance Act (42 U.S.C. Section 5121 et seq.); |
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(ii) the governor under Section 418.014, |
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Government Code; or |
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(iii) the presiding officer of the |
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governing body of a political subdivision under Section 418.108, |
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Government Code; or |
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(B) subject to an emergency evacuation order. |
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SECTION 3.03. Subchapter D, Chapter 32, Penal Code, is |
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amended by adding Section 32.61 to read as follows: |
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Sec. 32.61. MALICIOUS SOLICITATION OF DISASTER VICTIM OR |
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FOR DISASTER RESPONSE OR RECOVERY. (a) In this section: |
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(1) "Disaster" has the meaning assigned by Section |
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418.004, Government Code. |
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(2) "Disaster volunteer" means a person who provides |
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or offers to provide a service at no cost to or at the direction of: |
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(A) a victim of a disaster; or |
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(B) a governmental entity engaged in disaster |
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response or recovery. |
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(3) "Relative" has the meaning assigned by Section |
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20.01. |
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(4) "Victim of a disaster" means a person who has |
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suffered harm as a result of a disaster. |
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(b) A person commits an offense if the person, with the |
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intent to defraud or harm any person: |
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(1) solicits a donation from another person while |
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inducing the other person to believe that the donation will be used |
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for disaster response or recovery, regardless of the manner of |
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solicitation; |
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(2) solicits donations on behalf of a donee with the |
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intent to retain the donations instead of delivering the donations |
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to the donee on whose behalf the donations were solicited; |
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(3) solicits payment from a victim of a disaster |
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after: |
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(A) providing services to the victim that are |
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related to disaster response or recovery, including debris removal |
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or transportation; and |
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(B) inducing the victim to believe that: |
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(i) the person is a disaster volunteer; and |
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(ii) the services described by Paragraph |
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(A) would be provided at no cost to the victim; or |
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(4) solicits payment from a victim of a disaster while |
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inducing the victim to believe that the actor will search for or |
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return to the victim a relative who is believed to be missing as a |
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result of the disaster. |
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(c) An offense under Subsection (b)(1), (2), or (3) is: |
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(1) for a first offense, a felony of the third degree; |
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or |
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(2) for a second or subsequent offense, a felony of the |
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second degree. |
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(d) Notwithstanding Subsection (c), an offense under |
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Subsection (b)(1), (2), or (3) is a felony of the first degree if |
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the person fabricated a designation described by Subchapter L, |
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Chapter 418, Government Code. |
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(e) An offense under Subsection (b)(4) is a felony of the |
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first degree. |
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(f) If conduct that constitutes an offense under this |
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section also constitutes an offense under any other law, the actor |
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may be prosecuted under this section or the other law, or both. |
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SECTION 3.04. Section 31.03, Penal Code, as amended by this |
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article, applies only to an offense committed on or after the |
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effective date of this Act. An offense committed before the |
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effective date of this Act is governed by the law in effect on the |
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date the offense was committed, and the former law is continued in |
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effect for that purpose. For purposes of this section, an offense |
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was committed before the effective date of this Act if any element |
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of the offense occurred before that date. |
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ARTICLE 4. CIVIL LIABILITY FOR MALICIOUS SOLICITATION DURING |
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DISASTER |
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SECTION 4.01. Title 4, Civil Practice and Remedies Code, is |
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amended by adding Chapter 100D to read as follows: |
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CHAPTER 100D. LIABILITY FOR MALICIOUS SOLICITATION DURING DISASTER |
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Sec. 100D.001. DEFINITION. In this chapter, "malicious |
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solicitation during a disaster" means conduct that constitutes an |
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offense under Section 32.61, Penal Code. |
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Sec. 100D.002. LIABILITY. A person who engages in |
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malicious solicitation during a disaster is liable to the donee on |
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whose behalf the payment was collected, the donee's estate, the |
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donor from whom the payment was solicited, or the donor's estate. |
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Sec. 100D.003. DAMAGES. (a) A court shall award a donee or |
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donee's estate who prevails in an action brought under this |
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chapter: |
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(1) 300 percent of the amount of donations the |
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defendant collected on behalf of the donee; and |
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(2) reasonable and necessary attorney's fees. |
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(b) A court shall award a donor or a donor's estate who |
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prevails in an action brought under this chapter: |
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(1) 300 percent of the amount of donations the |
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defendant collected from the donor; and |
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(2) reasonable and necessary attorney's fees. |
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(c) Nothing in this section prevents a donee, donee's |
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estate, donor, or donor's estate from pursuing a claim for |
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exemplary damages under Chapter 41 for the defendant's malicious |
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solicitation during a disaster. |
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SECTION 4.02. Chapter 100D, Civil Practice and Remedies |
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Code, as added by this article, applies only to a cause of action |
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that accrues on or after the effective date of this Act. |
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ARTICLE 5. EFFECTIVE DATE |
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SECTION 5.01. This Act takes effect on the 91st day after |
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the last day of the legislative session. |
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* * * * * |