Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 51.
EXECUTIVE
Subchapter G. NONPROFIT ORGANIZATIONS
31 TAC §§51.165 - 51.168
The Texas Parks and Wildlife Commission adopts new §§51.165-51.168,
concerning Nonprofit Partners, Sponsorships, Employee Fundraising, and Youth-appropriate
Advertising. Section 51.165, concerning Best Practices of the Official Nonprofit
Partner (ONP), is adopted with changes to the proposed text as published in
the December 14, 2001, issue of the
Texas Register
(26 TexReg 10228). Sections 51.166-51.168 are adopted without changes
and will not be republished. The change to §51.165 alters internal references
cited in subsection (c) in response to public comment. The department intended
only for the Official Nonprofit Partner to undertake an annual independent
audit.
The new rules are necessary to comply with the provisions of Senate Bill
305, enacted by the 77th Texas Legislature, which require the commission to
promulgate regulations governing best practices for nonprofit partners of
the agency, guidelines for the solicitation and acceptance of sponsorships
from private entities by the official nonprofit partner, guidelines for the
solicitation and acceptance of gifts of greater than $500 in value by department
employees, and the types of advertising appropriate for viewing by youth.
New §51.165, concerning Best Practices of the Official Nonprofit Partner,
will function by establishing best practices criteria recommended by the Sunset
Advisory Commission. The criteria will formalize the interactions among the
agency, nonprofit partners, and the official nonprofit partner and standardize
the policies and procedures used by each in cooperative furtherance of the
agency’s mission. The purpose of the proposed new rule is to more clearly
separate agency functions from private functions, provide for greater public
accountability, and prevent the potential perception that conflicts of interest
might exist in the absence of clear guidance.
New §51.166, concerning Sponsorships, will function by establishing
protocols for solicitation and acceptance of financial contributions on behalf
of the agency by nonprofit partners in exchange for public recognition of
the sponsors’ involvement in furthering the mission of the agency. The
purpose of the new section is to ensure that in the process of supporting
and furthering the agency’s mission, sponsorship agreements between
the nonprofit partner and private entities do not either detract from the
agency’s mission or create the perception that the agency’s legislative
and regulatory obligations are in any way being compromised.
New §51.167, concerning Employee Fundraising, sets forth the requirements
for solicitation and acceptance of gifts equal to or greater than $500 in
value by department employees and department employees acting on behalf of
a nonprofit partner. The purpose of the new section is to track and record
the activities of publicly funded fundraising efforts to ensure that the agency
is in compliance with S. B. 305.
New §51.168, concerning Youth-appropriate Advertising, limits advertising
that is appropriate for youth viewing to those advertisements that do not
include alcohol or tobacco products.
The department received one comment requesting that the rules be revised
to prevent employees of Texas Parks and Wildlife from receiving scholarships
awarded by the Official Nonprofit Partner (ONP) if the source of the scholarship
is a sponsor or other entity doing business with the department. The commenter
felt that conflicts of interest could arise. The department disagrees with
the comment and responds that 1) it is a violation of state law (Penal Code,
Chapter 36) for a public servant to trade on his or her influence, and 2)
the ONP is a private entity that the department regulates under the narrowly
circumscribed powers set forth by the legislature. No changes were made as
a result of the comment.
The department received one comment pointing out that the proposed rules
require sponsorship opportunities that include endorsements to be made available
to the public, which would allow alcohol and tobacco products to be advertised.
The department disagrees with the comment and responds that the regulation
in question requires such sponsorship opportunities to be made available to
the public, not that the endorsements be made available to the public. No
changes were made as a result of the comment.
The department received one comment asserting that because the department
regulates the use of alcoholic beverages on public waterways, the department
would be in violation of the proposed rules, since the ONP is not allowed
to accept sponsorships from any company or entity that is regulated by the
department at the time of consideration. The department disagrees, and responds
that it does not regulate the use of alcoholic beverages on public waterways
and has no statutory authority to do so. Game Wardens, as commissioned peace
officers, can and do enforce provisions of the Penal Code involving alcohol-related
offenses, but that is not the same thing as regulatory oversight. No changes
were made as a result of the comment.
The department received one comment stating that although the proposed
rules require youth-appropriate advertising to be free of alcohol and tobacco
products, the rules are vague as to implementation. The department disagrees
with the comment and responds that the rule in question is quite clear. No
changes were made as a result of the comment.
The department received one comment stating that although the department
distributes a version of hunting and fishing regulations that does not contain
advertisements for tobacco and alcohol products, the adult version of the
publication is still available to minors. The commenter requested that the
department remove all alcohol and tobacco advertising the publication in order
to be consistent with policies governing youth-appropriate advertising. The
department agrees with the commenter that the publication is readily available;
however, the youth-appropriate version is intended for use in schools and
hunter education classes. The rights to publish a summary of hunting and fishing
regulations in the Outdoor Annual are the contractual property of a private
company; however, that company currently furnishes a youth-appropriate publication.
No changes were made as a result of the comment.
The department received one comment asserting that children are banned
from outreach events sponsored by alcohol or tobacco interests, and that the
exclusion of youth from outreach activities is unacceptable. The department
disagrees with the comment and responds that under the regulations of the
Texas Alcoholic Beverage Commission (16 TAC §45.106), a person must be
of legal drinking age to enter a promotion sponsored by an entity affiliated
with the alcoholic beverage industry. To be sure, children may attend and
participate in such events, but are forbidden only from registering and being
eligible to win prizes. The department made no changes as a result of the
comment.
One comment voiced concern about the requirement that the Presiding Officer
of the Parks and Wildlife Commission appoint a majority of the board. The
comment was made by a member of the board of a smaller nonprofit. The regulation
in question applies only to the ONP, and not to any other entity. No changes
were made as a result of the comment.
Four commenters requested that smaller nonprofit partners be exempt from
the auditing requirements of §51.165(d)(3). The department agrees and
has made changes accordingly.
The rules are adopted under Parks and Wildlife Code, Chapter
11, Subchapter J, which requires the commission to adopt rules governing best
practices for nonprofit partners of the agency, and guidelines for the solicitation
and acceptance of sponsorships from private entities by the official nonprofit
partner. The rules are also adopted under Parks and Wildlife Code, Chapter
11, Subchapter B, which requires the commission to adopt rules relating to
guidelines for the solicitation and acceptance of gifts equal to or greater
than $500 in value by department employees and the types of advertising that
are appropriate for viewing by youth.
§51.165.Best Practices of the Official Nonprofit Partner (ONP).
(a)
Composition of the board.
(1)
The Presiding Officer of the Texas Parks and Wildlife Commission
shall appoint a majority of board members.
(2)
Current TPW employees will not be eligible to serve as
voting members of the Board.
(b)
General provisions. The official nonprofit partner (ONP)
shall:
(1)
adopt a conflict of interest policy that precludes board
members from benefiting financially from any business decision of the ONP;
(2)
publish an annual report each year and make it available
to the general public; and
(3)
make its current IRS 990 return, its annual audit, and
a copy of its application to the IRS for exempt status available to the general
public upon request.
(c)
TPW employee involvement.
(1)
No TPW employee shall hold a paid position with the ONP
nor will any employee receive direct personal benefits from the ONP.
(2)
The ONP may, however, reimburse TPW employees for legitimate,
documented expenses. Additionally, the ONP may award scholarships to TPW employees
from private, donor-directed sources.
(3)
A TPW employee soliciting or accepting gifts or donations
of equal to or greater than $500 in value on behalf of the ONP shall comply
with the provisions of §51.167 of this title (relating to Employee Fundraising
Activities).
(d)
Accounting and Reporting.
(1)
The ONP shall adopt financial procedures that govern acceptance
of and access to:
(A)
donor-restricted funds;
(B)
unrestricted funds; and
(C)
state funds. All state funds will be spent in support of
TPW-established priorities.
(2)
TPW employees shall not directly spend or obligate ONP
funds. The ONP and its employees will control all expenditures.
(3)
An independent accounting firm shall audit the ONP annually.
A copy of that audit shall be sent to the TPW executive director. Any state
funds received by the ONP shall be subject to audit by the State Auditor’s
Office.
(e)
Compliance with state and federal requirements.
(1)
Expenditures of state funds by the ONP for a TPW project
shall meet all applicable state and federal requirements governing TPW spending.
(2)
State funds held by the ONP shall be subject to investment
according to Government Code, Chapter 2256. State funds held by the ONP shall
be invested by competent investment professionals to yield the highest returns
possible.
(f)
Sponsorship. When consistent with the mission of TPW, the
ONP may solicit and accept corporate sponsorships. The ONP shall follow the
criteria set forth in §51.201 of this title (relating to Sponsorships)
when seeking, accepting, and administering corporate sponsorships. Any interested
party may submit a proposal for consideration. Sponsorship opportunities that
include endorsements shall be made available to the public. All sponsorship
proposals shall be given equal consideration.
(g)
Lobbying. The ONP shall not use state funds to influence
legislative action either by the ONP or by others funded by the ONP with state
funds.
(h)
Review. Not later than three years following the selection
of an ONP by the commission, the commission shall assess whether the purposes
for which the ONP was created still exist, if the ONP is serving those purposes,
and if the ONP is still needed.
(i)
The provisions of subsections (b), (c), (d)(1) and (2),
and (e) of this section shall also apply to nonprofit partners as defined
in Parks and Wildlife Code, §11.201.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 9, 2002.
TRD-200202188
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Effective date: April 29, 2002
Proposal publication date: December 14, 2001
For further information, please call: (512) 389-4775
Subchapter F. STATE PARK OPERATIONAL RULES
31 TAC §59.132
The Texas Parks and Wildlife Commission adopts an amendment
to §59.132, concerning General Rules, without changes to the proposed
text as published in the December 14, 2001, issue of the
Texas Register
(26 TexReg 10241).
The amendment is necessary to ensure that equines entering state parks
are free of a contagious equine disease, Equine Infectious Anemia, that could
be transmitted to other equines.
The amendment functions by requiring persons who bring equines to a state
park or allow equines to enter a state park to have evidence that the animals
have been tested negative for Equine Infectious Anemia (EIA).
The department received 16 comments in favor of adoption of the proposed
amendment, and no comments in opposition.
Greater Houston Horse Council, Trail Association of Ray Roberts, and Texas
Equestrian Trail Riders Association commented in favor of the proposed amendment.
The rules are adopted under Parks and Wildlife Code, §13.102,
which authorizes the commission to adopt regulations governing the activities
of park users.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on April 9, 2002.
TRD-200202190
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Effective date: April 29, 2002
Proposal publication date: December 14, 2001
For further information, please call: (512) 389-4775
Subchapter H. PUBLIC LANDS PROCLAMATION
Chapter 59.
PARKS
Chapter 65.
WILDLIFE