Part 9.
TEXAS LOTTERY COMMISSION
Chapter 402.
BINGO REGULATION AND TAX
16 TAC §402.530
The Texas Lottery Commission adopts new §402.530, relating
to the registry of approved bingo workers with changes to the proposed text
as published in the October 31, 2003, issue of the
Texas Register
(28 TexReg 9378). The changes are made in response to
comment received. Specifically, the language in subsection (j)(3) is changed
from, "An individual may order blank identification card forms that would
allow the individual to complete his or her card from the commission. The
individual must submit the required fee and the required form for the blank
card form" to "A person who has been approved to work in charitable bingo
may complete an identification card form provided by the commission for use
while on duty. Blank identification card forms may be obtained from the commission.
The person requesting the identification card form(s) must submit the required
fee and the required form for the blank identification card form." These changes
do not create a different rule, or affect individuals who would not have been
impacted by the rule as proposed or impose more stringent requirements than
the proposed rule.
During the 78th Legislative Session, the Texas Legislature enacted House
Bill 2519, which included new Occupations Code, §2001.313 and §2001.314
relating to the maintenance by the commission of a registry of approved bingo
workers and to the authority of the commission to require a person listed
in the registry to wear an identification card. The purpose of the new rule
is to establish an administrative framework to maintain the registry. The
new rule identifies the persons who must be listed on the registry of workers,
provides a procedure for the initial application and subsequent intent to
remain on the registry, and clarifies that the primary operator must be designated
by the licensed organization and approved by the commission in addition to
being listed on the registry. The new rule is also adopted to clarify the
procedure for a person to be included on the registry of approved bingo workers
and to specify requirements for a change of information notification to the
commission. The new rule further provides a procedure for the issuance, display,
and production of the identification card or form, supplies instruction for
reporting conduct that could constitute grounds for removal or refusal to
list on the registry and provides information on the registry as it relates
to temporary licenses. The new rule also establishes the notification process
for refusal or removal from the registry of approved workers.
Written comments were received regarding adoption of this new section.
In addition, a public hearing was held on December 19, 2003 to receive both
written and oral comment regarding adoption of this new section. The following
commenters provided comment: Steve Bresnen & Associates, who in his comments
said that he was representing 97 organizations and licensed commercial lessors,
Stephen Fenoglio, who in his comments said that he was representing 950 charities
and businesspersons, and David Heinlein, Jetta Services, LLC. While none of
the commenting parties stated opposition to or support for the entire rule,
there were express statements of opposition to certain provisions of the proposed
rule.
The following is a summary of the comments received during the comment
period:
Comment:
One commenter wants the commission to clarify that a person who is listed
in the registry is not required to have a commission issued identification
card but instead may complete a blank identification card using a commission
prescribed form. The commenter suggests adding the following language to §402.530(j)(3)
"A person who has been approved to work in charitable bingo may complete an
identification card form provided by the commission for use while on duty.
Blank identification card forms may be obtained from the commission by a licensee
or approved worker and the commission will provide the requested number of
blank forms on request."
Response:
The commission disagrees in part and agrees in part with the comment. The
commenter suggests that the rule should clearly provide that an approved bingo
worker may complete a prescribed commission identification card form for use
while on duty at a bingo occasion. In addition, the commenter suggests allowing
licensees and approved bingo workers the opportunity to request identification
card forms from the commission. The rule as proposed provided that only an
approved worker may order blank identification forms. Based on these comments,
the language in the rule is revised accordingly. However, the commission disagrees
with the comment that the commission must provide the number of identification
forms requested without charging a reasonable fee for those forms. Based on
the commenter's suggested language, the commission would be required to provide
an unlimited number of forms without the ability to recover the associated
costs.
Comment:
A commenter requests that blank identification card forms be posted on
the commission website with other forms.
Response:
The commission disagrees. Texas Occupations Code §2001.314 does not
require that the commission publish the blank identification card forms on
the commission website. The commission, by virtue of this rule, does not want
to create such a requirement because of outstanding issues regarding uniformity
and formatting of the identification cards. Once these issues are resolved,
the commission will make the blank identification forms readily available
on the commission website.
Comment:
Several commenters have suggested that the rule clarify that supplemental
lists of employees working for a given organization should no longer be required.
Response:
The commission disagrees. Texas Occupation Code §2001.102(b) (12)
provides that an authorized organization applying for a license to conduct
bingo must include the name and address of each person who will work at the
proposed bingo occasion at the time the application is filed. The commission
has no authority to modify state law. The rule cannot override the statutory
requirement of the organization to file an application that includes a list
of persons who will work at the proposed bingo occasion.
Comment:
One commenter suggested that no additional charge be assessed against the
organizations concerning the fee for an identification card or card form.
Response:
The commission disagrees. Texas Occupation Code §2001.314(b) states
that the commission shall provide the identification card and shall provide
a form to be completed by a person that allows the person to prepare the identification
card and shall collect a reasonable charge to cover the cost of providing
the card or form. The rule provides that the fee for an identification card
or identification card form may not exceed $5.00. The Commission estimates
the cost to the commission of providing the card or form is $5.00 or less.
Currently, the commission is not charging such a fee because the cost of processing
the fee exceeds the fee itself. At some time in the future, the commission
may charge such a fee if it becomes practical to recover such costs. The rule
provides flexibility within the range of $0.00 to $5.00, so that the commission
may recover its costs.
Comment:
One commenter suggested that authorized organizations holding a temporary
license should not be exempted from the registry of bingo workers.
Response:
The commission disagrees. Texas Occupation Code §2001.103(d)(2) provides
that an organization operating under a temporary license is subject to the
other provision of this chapter to the extent they can be made applicable.
The requirement to maintain a registry of bingo workers that may work for
a temporary licensee is inefficient and not practicable under the Bingo Enabling
Act. For example, a parent teacher association ("PTA") may apply for a temporary
license to conduct one or two bingo occasions. The commenter's suggested change
would require each volunteer to remain on the registry of approved bingo workers
list for a minimum of three years from the date of inclusion, to undergo annual
criminal history background checks, and to have the volunteer's registry information
maintained on the commission's website. It is the experience of the Charitable
Bingo Operations Division that many organizations seeking a temporary license
apply for a single occasion and have a high amount of worker turnover. Despite
the fact that workers for temporary license holders are exempted from the
registry, these temporary organizations must still provide the name and address
of each person working at a proposed bingo occasion as required by Texas Occupation
Code §2001.102(12). Each of these workers will undergo a one-time criminal
history background check.
The new rule is adopted under Occupations Code, §2001.054
which authorizes the commission to adopt rules to enforce and administer the
Bingo Enabling Act, under Government Code, §467.102 which authorizes
the commission to adopt rules for the enforcement and administration of the
laws under the commission's jurisdiction, and under Occupations Code, §2001.051(b)
which grants the commission broad authority to exercise strict control and
close supervision over all bingo conducted in Texas so that bingo is fairly
conducted and the proceeds derived from bingo are used for an authorized purpose.
The new rule implements Occupations Code, Chapter 2001.
§402.530.Registry of Approved Bingo Workers.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise:
(1)
Caller--the term "caller" means an individual who operates
the bingo ball selection device and announces the balls selected.
(2)
Cashier--the term "cashier" means an individual who sells
and records bingo card and pull tab sales to bingo players and/or pays winners
the appropriate prize.
(3)
Manager--the term "manager" means an individual who oversees
the day-to-day operation of the bingo premises.
(4)
Operator--the term "operator" means an active bona fide
member of a licensed authorized organization that has been designated on a
form prescribed by the Commission prior to acting in the capacity as the organization's
primary operator. An individual designated by an authorized organization as
an "alternate operator" shall perform all the duties and responsibilities
of an operator in the absence of the primary operator.
(5)
Sales Person--the term "sales person" means an individual
who monitors bingo players, sells bingo cards and pull tabs, verifies winners
and/or awarding prizes. A sales person may be referred to as a floor worker,
runner or usher.
(b)
Who must be listed on the Registry of Approved Bingo Workers.
The following persons must be listed on the Registry of Approved Bingo Workers
prior to being involved in the conduct of bingo:
(1)
Operator
(2)
Manager
(3)
Cashier
(4)
Usher
(5)
Caller
(6)
Salesperson
(c)
Registrants submitted on or before February 1, 2004. A
registrant submitted as a worker or operator for an authorized organization
is considered listed on the registry if the prescribed form listing the individual
was postmarked on or before February 1, 2004. These individuals must then
verify their intent to remain on the registry by no later than June 1, 2004.
Each individual must submit a completed Texas Application for Registry of
Approved Bingo Workers as prescribed by the commission to remain on the Registry
of Approved Bingo Workers.
(d)
Registrants submitted after February 1, 2004. A registrant
submitted as a worker or operator for a licensed authorized organization after
February 1, 2004 must do so on a form prescribed by the commission. The registrant
will be added to the registry as soon as possible after the commission has
determined that the person is eligible to be involved in the conduct of bingo
or act as an operator.
(e)
For purposes of the Registry of Approved Bingo Workers,
each operator must be designated on the licensed authorized organization's
license to conduct bingo application pursuant to the Occupations Code, §2001.102(10)
as the member who will be responsible for the conduct of bingo under the terms
of the license and the Bingo Enabling Act. An individual included on the registry
may not serve as the primary operator for an organization until the approved
license to conduct bingo has been issued to the licensed organization listing
the individual as the operator, received by the organization, and displayed
at the location. An organization must submit a registered operator on a form
prescribed by the commission prior to the operator acting in the capacity
of primary operator.
(f)
Expiration of listing on registry of approved bingo workers.
A registrant's listing on the registry is valid for three years from the last
date of inclusion on the registry, unless the individual's listing is removed
for cause prior to the expiration of three years. Every three years after
the date the person's name is listed on the registry the individual shall
submit a form prescribed by the commission stating the person's intent to
remain on the registry. Failure to timely submit the prescribed form will
result in the deletion of the worker's name from the registry. A person whose
name is deleted from the registry due to failure to verify the intent to remain
on the registry may be re-listed on the registry by filing the required form.
(g)
How to be listed on the Registry of Approved Bingo Workers.
For a person to be listed on the Registry of Approved Bingo Workers, a person
must:
(1)
complete a Texas Application for Registry of Approved Bingo
Workers form as prescribed by the commission;
(2)
submit the required fee for the cost of the card or form;
and
(3)
be determined by the commission to not be ineligible under
Section 2001.105(a)(6).
(h)
An individual listed on the registry must notify the commission
of any changes to information contained on the Texas Application for Registry
of Approved Bingo Workers on file with the commission within 30 days of the
change in information. Such notification shall be in writing or other approved
electronic means.
(i)
Identification Card for Approved Bingo Worker.
(1)
The commission will issue an identification card indicating
that the person is listed in the registry. On or after June 1, 2004, a registered
worker and operator must wear his/her identification card while on duty.
(2)
The identification card worn by the registered worker or
operator while on duty must be visible. The identification card shall list
the individual's name and unique registration number, as issued by the commission.
An individual may obtain the unique registration number from the Registry
of Approved Bingo Workers on the commission's website or by requesting the
number from the commission.
(3)
An identification card is not transferable and may be worn
only by the individual identified on the card.
(4)
Upon request by a commission employee, a person described
in subsection (a) of this section shall present personal photo identification
in order to verify the identification card is that person's card.
(j)
How to Obtain Approved Identification Cards.
(1)
A completed identification card may be obtained from the
commission by submitting the required fee and submitting the required form.
(2)
The fee for an identification card or identification card
form may not exceed $5.00.
(3)
A person who has been approved to work in charitable bingo
may complete an identification card form provided by the commission for use
while on duty. Blank identification card forms may be obtained from the commission.
The person requesting the identification card form(s) must submit the required
fee and the required form for the blank identification card form.
(4)
The identification card prepared by the individual may
only be on a prescribed commission card form and must be legible and include
the individual's name and registration number.
(k)
A licensed authorized organization which is reporting conduct
where there is a substantial basis for believing that the conduct would constitute
grounds for removal or refusal to list on the registry shall make the report
in writing to: Bingo Registry, Texas Lottery Commission, P.O. Box 16630, Austin,
Texas 78767-6630.
(l)
The provisions of the Occupations Code §2001.313 related
to the registry of bingo workers do not apply to an authorized organization
that does not have an annual license to conduct bingo who receives a temporary
license to conduct bingo.
(m)
If the commission proposes to refuse to add or proposes
to remove the person from the Registry of Approved Bingo Workers consistent
with Occupations Code, §2001.313, the commission will give notice of
the proposed action as provided by Texas Government Code, Chapter 2001.
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 February 2, 2004.
TRD-200400633
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: February 22, 2004
Proposal publication date: October 31, 2003
For further information, please call: (512) 344-5113
16 TAC §402.531
The Texas Lottery Commission adopts new §402.531, relating
to advisory opinions with changes to the proposed text as published in the
October 31, 2003, issue of the
Texas Register
(28
TexReg 9380). The changes are made in response to comment received. Specifically,
subsection (b)(2) is changed from "the request may be accompanied by supporting
arguments" to "the request may be accompanied by supporting legal arguments".
The second sentence of subsection (b)(2) makes a similar change in language
from "Any other person may also submit arguments" to "Any other person may
also submit legal arguments". Further, a change is made to language in subsection
(d)(1) from "contested case proceeding notification of intended action" to
"contested case proceeding notice of hearing". Further, a non-substantive
change was made to correct an error in capitalization. These changes do not
create a different rule, affect individuals who would not have been impacted
by the rule as proposed, or impose more stringent requirements than the proposed
rule.
During the 78th Legislative Session, the Texas Legislature enacted House
Bill 2519, which included new Occupations Code, §2001.059, which authorizes
a person to request an advisory opinion from the commission regarding compliance.
The purpose of new §402.531 is to create the administrative process by
which a person may request an advisory opinion and submit the request to the
commission. The purpose of the rule is to provide information on the notification
process of the advisory opinion request number and date of request by the
commission, to delegate the authority to issue advisory opinions to the Charitable
Bingo Operations Division, and to specify the process by which advisory opinions
are issued.
Written comments were received regarding adoption of this new section.
In addition, a public hearing was held on December 19, 2003 to receive both
written and oral comment regarding adoption of this new section. The following
commenter provided comment: Stephen Fenoglio, who in his comments said that
he was representing 950 charities and businesspersons. While the commenter
did not state express opposition or support for the entire rule, there were
express statements of opposition to certain provisions of the rule. The following
is a summary of the comments received during the comment period:
Comment:
The commenter suggested that the commission publish all communication between
the requestor and the commission provided for in the rule on the commission's
internet website, within an unspecified number of days of receipt of the request
and/or other communication, and timely publish the request in the Bingo Bulletin.
Response:
The commission disagrees. Texas Occupations Code §2001.059 does not
require that the commission publish the request for an advisory opinion or
other communication related to the request on the agency website or Bingo
Bulletin. To impose such a requirement in the rule would increase the cost
associated with the advisory opinion process and would be unreasonable in
relation to the commission's current resources. Following the commenter's
suggestion would also extend the commission beyond its currently funded technological
and personnel resources and would expand the scope and cost of publishing,
printing, and distributing the Bingo Bulletin. The specific increased costs
and fiscal resources cannot be determined although additional programming
hours and associated costs are projected. However, the commission is currently
undertaking a limited project to provide a searchable database on the commission
website with currently funded resources. The searchable database will contain
the request for an advisory opinion and the commission response. This database
will be modeled on the website database maintained by the Attorney General
of Texas regarding the issuance of legal opinions. The commission believes
this database will be helpful to both requestors and commission personnel,
while limiting the time and expense involved in preparing, operating, and
maintaining the database. In addition to the database, the commission may
publish notices of requests for advisory opinions and/or summaries of responses
in the Bingo Bulletin as is practicable, but to require this in the rule would
increase costs and workload.
Comment:
The commenter said the phrase "contested case proceeding notification of
intended action" is vague and could preclude an opinion addressing all issues
in audits and license applications.
Response:
The commission agrees. The commission has revised the language in the rule
from "contested case proceeding notification of intended action" to the more
specific "contested case notice of hearing". The issuance of a notice of hearing
in a contested case proceeding will limit the content of an advisory opinion
from the commission to only refer to the applicable statutes and rules cited
in the contested case proceeding.
Comment:
The commenter said the phrase "disputed question of fact" is vague and
needs explanation and should be distinguished from language in subsection
(b)(2).
Response:
The commission agrees. The commission makes the distinction between legal
and factual arguments. Subsection (b)(2) states that a person may submit arguments,
citations of law or rules, or legal briefs within 30 days of the date of the
request for opinion. The commission has revised the rule language to clarify
that a person may submit legal arguments as opposed to factual arguments.
However, the commission, through an advisory opinion, cannot resolve a disputed
set of facts.
The new rule is adopted under Occupations Code, §2001.054
which authorizes the commission to adopt rules to enforce and administer the
Bingo Enabling Act, under Government Code, §467.102 which authorizes
the commission to adopt rules for the enforcement and administration of the
laws under the commission's jurisdiction, and under Occupations Code, §2001.051(b)
which grants the commission broad authority to exercise strict control and
close supervision over all bingo conducted in Texas so that bingo is fairly
conducted and the proceeds derived from bingo are used for an authorized purpose.
The new rule implements Occupations Code, Chapter 2001.
§402.531.Advisory Opinions.
(a)
Time Period
(1)
The commission shall respond to an advisory opinion request
not later than the 60th day after the later date of when the commission receives
the written request containing sufficient facts or receives the additional
information pursuant to a request for additional information to provide an
answer on which the requestor may rely. However, if the commission requests
an attorney general opinion on a matter that is the subject of an advisory
opinion request the deadlines are tolled until 30 days following the issuance
of the attorney general opinion.
(2)
The commission shall notify the person making the request
of the date the advisory opinion request is received and of the advisory opinion
number.
(3)
The authority granted by §2001.059 is delegated to
the Charitable Bingo Operations Director or his designee. The General Counsel
must approve the advisory opinion prior to the issuance of the advisory opinion
by the Charitable Bingo Operations Director. The commission by separate order
may delegate to an employee of the commission the authority granted.
(4)
The Texas Lottery Commission retains the authority to issue
advisory opinions pursuant to §2001.059. The delegation of authority
merely augments the Texas Lottery Commission's ability to perform the duties
and functions of the Texas Lottery Commission with respect to issuing advisory
opinions.
(b)
Request for an Advisory Opinion
(1)
A person requesting an advisory opinion shall do so by
sending the request in writing addressed to Advisory Opinion, Charitable Bingo
Operations Division, Texas Lottery Commission, P.O. Box 16630, Austin, Texas
78761-6630. or by e-mail to Advisory.Opinion@lottery.state.tx.us.
(2)
A request for an advisory opinion shall describe a specified
factual situation. The request shall make clear that it is a request for an
advisory opinion under §2001.059 and state in sufficient detail all facts
upon which the request for opinion is based to permit the commission to provide
a response to the request and shall contain the name and address of the person
requesting the opinion. The request may be accompanied by supporting legal
arguments and citations of law or rules as the requesting person deems pertinent.
Any other person may also submit legal arguments, citations of law or rules,
or legal briefs within 30 days of the date of the request for opinion.
(c)
Request for Additional Information
(1)
If the commission determines that the request for an advisory
opinion does not contain sufficient facts to provide an answer, the commission
shall request additional written information from the requestor not later
than ten (10) days after the request for advisory opinion was received by
the Commission.
(2)
If no additional information is supplied in response to
the commission request for additional written information from the requestor,
after the commission determines that the request does not contain sufficient
facts to provide an answer, then no opinion can be issued and the advisory
opinion request file will be closed. In this instance, the requestor will
be given a statement that no opinion can be expressed with regard to a given
fact situation due to the failure to supply additional information.
(3)
The response to a commission request for additional information
shall be addressed to Advisory Opinion, The Charitable Bingo Operations Division,
Texas Lottery Commission, P.O. Box 16630, Austin, Texas 78761-6630 or by e-mail
to Advisory.Opinion@lottery.state.tx.us in order to permit the commission
to provide a response to the request.
(d)
Subject of an Advisory Opinion
(1)
The commission will not issue an advisory opinion that
concerns the subject matter of pending litigation or contested case notice
of hearing known to the commission other than to provide a response which
refers to the applicable statutes and rules cited in the pending litigation
or contested case proceeding notification.
(2)
An advisory opinion cannot resolve a disputed question
of fact other than to provide a response which refers to the applicable statutes
and rules.
(e)
Response
(1)
A request for an advisory opinion that contains sufficient
facts shall initially be referred to any appropriate personnel within the
Charitable Bingo Operations Division for review and written comment.
(2)
If the commission determines that a request for an advisory
opinion has already been answered by the commission, then the commission may
provide a written response to the requestor that cites the prior advisory
opinion.
(3)
The commission may publish the response on its website.
(4)
The response shall clearly state that the opinion is advisory
in nature and is restricted to the fact situation identified in the opinion.
(5)
An advisory opinion may be relied upon by the requestor
as well as any other person whose conduct is substantially consistent with
the opinion and the facts stated in the request.
(6)
The commission cannot grant nor confer legal authority
beyond the statute or rule which is the subject of the request for advisory
opinion
(7)
A previously issued advisory opinion not in accord with
the current commission statutes and rules may be modified or revoked, but
in such an instance the modification or revocation shall operate prospectively
only.
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 February 2, 2004.
TRD-200400634
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: February 22, 2004
Proposal publication date: October 31, 2003
For further information, please call: (512) 344-5113
16 TAC §402.573
The Texas Lottery Commission adopts new §402.573, relating
to gift certificates with changes to the proposed text as published in the
October 31, 2003, issue of the
Texas Register
(28
TexReg 9382). The changes are made in response to comment received. Specifically,
language in subsection (b) changed from "all gift certificates must be purchased
from a commercial printer and shall be pre-numbered and consecutively issue"
to "all gift certificates shall be pre-numbered and consecutively issued".
Certain language in subsection (e)(1), (e)(3), (f), and (i) was changed to
clarify that the gift certificates could be used at several locations rather
than a single location. The language in subsection (e)(1) has been revised
from "imprinted with the name and address of the licensed location" to "imprinted
with the name and address of the licensed location(s)". The language in subsection
(e)(3) has been changed from "imprinted with the name of the licensed authorized
organization" to "imprinted with the name of the licensed authorized organization(s)".
The language in subsection (f) changed from "at the license location imprinted
on the gift certificate" to "at the license location(s) imprinted on the gift
certificate". The language in (i) changed from "location" to "location(s)".
Finally, as the result of a comment, a non-substantive change was made to
correct an error in referring to bingo paper instead of bingo card/paper.
These changes do not create a different rule, or affect individuals who would
not have been impacted by the rules as proposed or impose more stringent requirements
than the proposed rule.
During the 78th Legislative Session, the Texas Legislature enacted House
Bill 2519, which included new Occupations Code, §2001.4155. Section 2001.4155
provides that a licensed authorized organization is not prohibited from selling
or redeeming a gift certificate and that the licensed authorized organization
that sells or redeems a gift certificate must keep adequate records relating
to the gift certificate. The purpose of the new rule §402.573 is to clarify
new statute §2001.4155 and establish an administrative framework for
organizations that want to use gift certificates. Specifically, the new section
sets out the requirements for redeeming or selling a gift certificate, specifies
the guidelines for awarding a gift certificate as a prize for bingo or a door
prize, explains what information must be included in imprinting a gift certificate,
sets out the requirements for payment for the certificate, and provides for
a limitation on the location(s) where a gift certificate may be accepted.
The new section also specifies the record keeping requirements of an organization
who participates in selling or accepting gift certificates including the required
segregation of funds, provisions for monthly disbursements among participating
organizations for unredeemed certificates, requirements for the timely depositing
of funds from redeemed certificates into the bank account, provides information
on reporting the redemption and reconciling the gift certificates among participating
organizations. The new section also clarifies that the records must be maintained
and available for inspection for four years and requires that participating
organizations collectively maintain a gift certificate log, and sets out the
required information.
Written comments were received regarding adoption of this new section.
In addition, a public hearing was held on December 19, 2003 to receive both
written and oral comment regarding adoption of this new section. The following
commenters provided comment: Steve Bresnen & Associates, who in his comments
said that he was representing 97 organizations and licensed commercial lessors,
Stephen Fenoglio, who in his comments said that he was representing 950 charities
and businesspersons, and David Heinlein, Jetta Services, LLC. While there
were numerous parties that provided comment to the rule, none of those commenting
provided express statements of support for or opposition to the entire rule.
The following is a summary of the comments received during the comment
period:
Comment:
Concerning the rules in general, one commenter disagreed with the determination
as stated in the preamble that there will be no adverse effect on small businesses,
micro businesses or local or state employment as a result of implementing
the rule. The basis is that the charity would have new recordkeeping requirements
and would be required to pay a commercial printer for obtaining gift certificates.
Response:
The commission disagrees. Texas Occupation Code §2001.4155 provides
that a licensed authorized organization may sell or redeem a gift certificate
that entitles the bearer to play a bingo game or instant bingo. Therefore,
the redemption and sale of gift certificates is a voluntary activity undertaken
by a licensed authorized organization. Since an organization is not required
to sell or redeem gift certificates, each organization can choose whether
the fiscal resources of maintaining information on the sale or redemption
of gift certificates should be allocated to this voluntary activity. However,
the Commission has revised the language in the rule to delete the requirement
of a commercial printer which was the subject of the commenter's concern as
to cost.
Comment:
Concerning subsection (b), the Commission received several comments from
persons opposed to the proposed requirement that gift certificate forms be
obtained from a commercial printer. The concern expressed included that the
rule was vague and needs explanation and would result in additional costs
to the organization.
Response:
The Commission agrees. The commission has revised the language accordingly.
Comment:
Concerning subsections (e)(1), (e)(3), (f), and (i), several commenters
expressed opposition to the proposed requirement that a licensed authorized
organization may not accept a gift certificate in exchange for bingo card
or paper except at the single licensed location imprinted on the gift certificates.
Response:
The Commission agrees, and has revised the rule accordingly.
Comment:
Concerning subsection (g)(2), a commenter expressed opposition to the requirement
that funds remaining from an expired or unredeemed gift certificate be disbursed
equally and deposited into each of the participating licensee's respective
accounts. The commenter is concerned that this provision is overly restrictive
as to how the funds must be used and it will result in additional recordkeeping
requirements and costs.
Response:
The commission disagrees. Texas Occupation Code §2001.4155 provides
that a licensed authorized organization may sell or redeem a gift certificate
that entitles the bearer to play a bingo game or instant bingo. Further, Texas
Occupation Code §2001.459(a)(1) provides that the cost of printing bingo
gift certificates must be paid from the organization's bingo account. For
this reason, the rule specifies that gift certificates that were sold for
the specific purpose and intent to play a game of bingo must be accounted
for by the organization and deposited in its general fund account to be used
by the organization consistent with the purposes and objective of the organization.
Licensed authorized organizations are already required to account for all
bingo income and expenses including funds intended to be used for playing
bingo. Additionally, participation in the redemption and sale of gift certificates
is voluntary. Thus, each licensee can decide whether to allocate its financial
resources to this activity.
Comment:
Concerning subsection (g)(4), a commenter expressed opposition to the proposed
requirement that each month, licensed authorized organizations should collectively
reconcile gift certificates that were purchased, sold, expired, redeemed,
or remaining during the month to the cash on hand.
Response:
The commission disagrees. Texas Occupation Code §2001.4155 provides
that a licensed authorized organization that sells or redeems a gift certificate
must keep adequate records relating to the gift certificates. The purpose
of the rule is to ensure that each organization that sells or redeems gift
certificates is responsible for obtaining and monitoring the records to ensure
the continuing authenticity, accuracy, and integrity of the gift certificates
records. This is particularly critical since different organizations and locations
may be involved in the sale and redemption of the certificates. The gift certificate
reconciliation records would be used to create reports and records that support
the use of bingo funds and would allow each organization to manage their records
efficiently and with appropriate protection. In addition, the reconciliation
requirement is necessary for the effective regulation of the licensee's use
of gift certificates because the reconciliation provides a method to determine
the financial structure of the licensee's gift certificate operation in a
clear and concise manner. The commission may use the reconciliation during
the audit of a licensee in the same way a bank statement may be used to compare
the credits and debits of an account.
Comment:
Concerning subsection (h), a commenter questioned the requirement that
licensed authorized organizations would be required to maintain the reconciliation
documents for a period of four years as it would require additional recordkeeping
and associated costs.
Response:
The commission disagrees. Texas Occupation Code §2001.4155 provides
that a licensed authorized organization that sells or redeems a gift certificate
must keep adequate records relating to the gift certificates. The rule language
identifies what the commission believes are adequate records. The records
that would be necessary to substantiate the redemption and sales related to
the gift certificates is limited in scope and should be readily available
to the organization and necessary to substantiate the quarterly report. The
retention of the records for four years enables the auditor to review the
underlying documents and correspondence that would substantiate the records
during the audit period. The commission believes that the four-year period
provided in the rule is a reasonable period because the requirement is consistent
with other commission promulgated administrative rules and is similar to the
requirements imposed by other governmental agencies performing similar functions.
In addition, the commenter did not suggest an alternative period for maintaining
these records, nor quantify or estimate the cost to support the claim of additional
costs.
Comment:
Concerning subsection (i)(5), a commenter questioned the necessity of maintaining
the date of redemption on the required gift certificate log.
Response:
The commission disagrees. The date of redemption provides a basis for the
organization to keep track of the gift certificates and provides the commission
with a means to identify the date that the organization received funds derived
from the conduct of bingo, if the certificates were used to play a bingo game,
including instant bingo. The commission believes this information is important
for purposes of auditing.
Concerning subsection (i)(6), a commenter stated that the rule requirement
that if a gift certificate is awarded as a bingo or door prize, the gift certificate
log must contain the date of the bingo occasion and the date the prize is
awarded provides new recordkeeping requirements.
Response:
The commission disagrees. The purpose of this provision is to require that
the organization account for prizes awarded. Texas Occupations Code §2001.502
requires that a licensed authorized organization shall collect from a person
who wins a bingo prize a fee in the amount of five percent of the amount or
value of the prize. The recordkeeping requirement of reporting on the gift
certificate log, the date of the bingo occasion and the date the prize is
awarded ensures that prize fees are properly documented to the commission.
Comment:
A commenter requested that the rule provide that a gift certificate may
be reusable.
Response:
The commission disagrees. The purpose of the rule is to require that the
participating licensed authorized organizations fully and consistently account
for the gift certificates by means of a pre-numbered and consecutively issued
gift certificate. Although, the commission recognizes that reusable gift certificates
could be more cost effective for the organizations, it could cause confusion
among organizations and bingo players as to whether the certificate had been
sold or redeemed and would not facilitate an independent means to verify the
redemption or sale of a gift certificate.
The new rule is adopted under Occupations Code, §2001.054
which authorizes the commission to adopt rules to enforce and administer the
Bingo Enabling Act, under Government Code, §467.102 which authorizes
the commission to adopt rules for the enforcement and administration of the
laws under the commission's jurisdiction, under Occupations Code, §2001.051(b)
which grants the commission broad authority to exercise strict control and
close supervision over all bingo conducted in Texas so that bingo is fairly
conducted and the proceeds derived from bingo are used for an authorized purpose,
and under Occupations Code, §2001.4155 which provides for the sale and
redemption of gift certificates related to the conduct of bingo.
The new rule implements Occupations Code, Chapter 2001.
§402.573.Bingo Gift Certificates.
(a)
A bingo gift certificate may be sold, issued, or redeemed
for bingo paper, pull-tab bingo or card-minding devices provided that the
licensed authorized organization or unit, as defined in Occupations Code §2001.431(1),
maintains adequate records relating to the gift certificate as provided in
this section.
(b)
A licensed authorized organization's cost of printing the
bingo gift certificate is an allowable bingo expense and shall be paid out
of the bingo checking account. In order to maintain adequate records relating
to gift certificates, all gift certificates shall be pre-numbered and consecutively
issued.
(c)
A bingo gift certificate may not be awarded as a prize
for bingo unless the value of the certificate is paid for by the licensed
authorized organization, recorded as a bingo prize on the daily schedule of
prizes for the bingo occasion, and five percent of the value of the prize
is withheld as a prize fee.
(d)
A bingo gift certificate may not be awarded as a door prize
unless the value of the certificate is paid for before it is awarded as a
door prize and funds other than bingo proceeds are used to obtain the gift
certificate.
(e)
Each bingo gift certificate shall be:
(1)
imprinted with the name and address of the licensed location(s)
where the gift certificate may be redeemed for bingo paper, pull-tab bingo
or card-minding devices;
(2)
imprinted with the monetary value of the certificate;
(3)
imprinted with the name of the licensed authorized organization(s)
authorized to accept the bingo gift certificate at the licensed location;
(4)
imprinted with the expiration date or a blank space for
the licensed authorized organization or unit to fill in an expiration date;
and
(5)
paid for by the customer in full at the time it is issued
by the licensed authorized organization or unit.
(f)
A licensed authorized organization may not accept a gift
certificate in exchange for bingo paper, pull-tab bingo or card-minding devices
if the licensed authorized organization is not licensed to conduct bingo at
the licensed location(s) imprinted on the gift certificate.
(g)
Reporting Requirements:
(1)
Funds from the sale of the gift certificate shall be maintained
separately from the bingo funds. Such funds are not considered bingo funds
until the gift certificate is redeemed for a bingo card, pull-tab bingo, or
a card-minding device.
(2)
Funds remaining from an expired or unredeemed gift certificate
shall be disbursed equally among the participating licensed authorized organizations
and deposited into each of their respective general fund accounts.
(3)
When a gift certificate is redeemed, the sale of bingo
paper, card-minding device, or pull-tab bingo shall be reported for that occasion.
The gift certificate, when redeemed, shall be exchanged for cash from the
gift certificate funds and deposited into the bingo account by the end of
the next business day as required by Occupations Code §2001.451.
(4)
At the end of each month, the licensed authorized organizations
collectively shall reconcile the gift certificates purchased, sold, expired,
redeemed, or remaining during the month to the cash on hand.
(h)
Records Retention. The purchase invoice or receipt from
the printing of a gift certificate and the reconciliation documents relating
to the sale or redemption of gift certificates must be maintained and available
for inspection by the commission for a period of four years.
(i)
Gift Certificate Log. A gift certificate log shall be maintained
collectively by the participating licensed authorized organizations at the
location(s) and shall include the following for each gift certificate:
(1)
certificate number;
(2)
certificate value;
(3)
date of issue;
(4)
expiration date;
(5)
date of redemption; and,
(6)
if awarded as a bingo or door prize, the date of the bingo
occasion and the date the prize is awarded.
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 February 2, 2004.
TRD-200400635
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: February 22, 2004
Proposal publication date: October 31, 2003
For further information, please call: (512) 344-5113
16 TAC §402.590
The Texas Lottery Commission adopts new §402.590, relating
to the Commission's examination of licensee's bingo records during a general
audit with changes to the proposed text as published in the October 31, 2003,
issue of the
Texas Register
(28 TexReg 9383).
The changes are made in response to comment received. Specifically, subsection
(e)(5) is deleted. Certain language in subsection (d) is changed from "If
applicable to the licensee, it must provide all records pertaining to:" to
"If applicable to the licensee, it must provide non-confidential records that
pertain to the following in sufficient detail to substantiate compliance with
the Occupations Code, Chapter 2001:" Also, a sentence is added to subsection
(g)(2) which states, "In addition to the licensee's representative, the licensee
may allow other persons to attend the exit conference." The terms "violations"
and "audit violations" mentioned in subsections (g)(3) are prefaced by the
term "alleged." The sentence in subsection (g)(4) is prefaced by the phrase,
"Unless otherwise provided by law,". These changes do not create a different
rule, affect individuals who would not have been impacted by the rules as
proposed, or impose more stringent requirements than the proposed rule.
Since the Texas Lottery Commission began regulating charitable bingo, routine
audits have been conducted by Commission personnel to ensure compliance with
Occupations Code, Chapter 2001 and applicable administrative rules. However,
the Commission's audit process has never been promulgated into an administrative
rule. In order to provide the regulated industry with uniform audit guidelines
and to promote consistency among its auditors, the Commission adopts the proposed
general audit rule. The new rule provides that licensees may be subject to
an audit. It provides the basis for an audit, the records which must be provided
by the audited licensee, the means and method of inspecting those records,
and the standards by which audits are to be conducted. The anticipated benefit
as a result of the proposed new section is the clarification of the purpose
of a general audit for the benefit of licensees and to inform licensees of
what will occur during a general audit.
Written comments were received regarding adoption of this new section.
In addition, a public hearing was held on December 19, 2003 to receive both
written and oral comment regarding adoption of this new section.
Several commenters suggested the removal of the substantive provisions
of subsections (e)(4) and (e)(5) of the rule which relate to the potential
costs which may be incurred by licensees during an audit. In particular, one
commenter suggested that the provisions of the rule which provide for charging
an amount reasonably necessary to recover costs associated with an audit will
result in new charges and constitute a dramatic shift in policy. The commenter
suggested that although some licensees may currently comply with similar principles,
the rule as proposed would mark a cost shift on the licensees. In addition,
the commenter suggested that the rule as proposed would take away the flexibility
that auditors and licensees currently employ to determine the terms upon which
the licensee's records may be inspected and examined.
Agency response: The Commission disagrees with the comment in part and
agrees with the comment in part. Subsection (e)(5) of the rule is deleted.
Thus, the rule no longer imposes the requirement that licensees pay the auditor's
travel costs when the licensee insists that the audit fieldwork be performed
at the licensee's location. The Commission disagrees with the suggestion that
subsection (e)(4) be deleted. The rule as proposed provides that a licensee
that wishes to provide copies of the records requested in lieu of the original
records would incur the cost of making those copies. When an audit is being
conducted, the licensee must provide documents and/or records to substantiate
compliance with Occupations Code, Chapter 2001. Whether the licensee wishes
to meet that requirement by providing original records or copies is the licensee's
choice. However, the Commission should not be charged for copy costs incurred
at the licensee's discretion. The rule requirement that each licensee be responsible
for its own costs related to copying records is consistent with the audit
practice of other governmental agencies.
The commenter further suggested that requiring licensees to go to a field
office or send their records to a field office would represent a new expense
and would disproportionately impact those licensees furthest away from field
office.
Agency response: The Commission disagrees with the comment. The rule does
not require a licensee to travel to the Commission field office or send requested
records to the field office. Subsection (e)(1) provides that the licensee
must provide requested records to the auditor at the entrance conference.
If the licensee does not provide the requested records at the entrance conference,
the auditor will issue a written request for the records. Upon receipt, the
licensee must provide the records within 10 working days.
Several commenters suggested that requiring the licensee to pay for copies
of requested records and for travel expenses related to the audit fieldwork
when the licensee insists that the fieldwork be conducted at the licensee's
location would disproportionately disadvantage those licensees located the
furthest away from Commission field offices. These commenters further asserted
that the imposition of these costs goes against the purpose of charitable
bingo which is to increase the revenue of charities operating in Texas.
Agency response: The Commission disagrees with the comment. Subsection
(e)(5) is deleted. As provided in subsection (e)(1), licensees are required
to provide the requested records to the auditor at the entrance conference.
Since the entrance conference is conducted at or near the licensee's location,
the cost of making copies and providing those copies to the auditor at the
entrance conference cannot be disproportionate based on the licensee's location
with respect to the Commission's regional field offices. With the deletion
of subsection (e)(5), travel expenses associated with the audit fieldwork
should no longer be an issue.
Several commenters suggested that the Commission has the statutory basis
for the imposition of reasonable and necessary costs associated with an audit,
but that the Commission has been appropriated the necessary funds to conduct
these audits. One commenter noted that the State of Texas receives six to
seven times the cost of regulating bingo in the form of bingo related fees
and taxes. In addition, several commenters suggested that the costs contained
in the rule go against the underlying purpose of charitable bingo which is
to increase the revenue of charities operating in Texas.
Agency response: Subsection (e)(5) of the rule is deleted. Thus, the issue
of charging a licensee the auditor's travel costs is moot. The copy charges
which may be incurred by licensees during the audit process is not an expense
charged by the Commission, but rather an expense incurred by the licensee
at its own discretion. The statutory framework of charitable bingo is regulatory
and a regulated entity will incur costs as a result. The purpose of bingo
is charitable fundraising, but inherent in a function of regulation is costs
to the regulated entities.
Following the text of subsection (e)(5), one commenter suggested that if
the Commission keeps the language in the rule related to the costs which may
be incurred by a licensee, the Commission should include language indicating
whether or not these costs would be allowable as a bingo expense under Occupations
Code, Sections 2001.458 and 2001.459.
Agency response: With the deletion of subsection (e)(5) of the rule, this
comment is moot in relation to travel costs. As to costs incurred by licensees
as a result of copying certain records, the facts and circumstances would
control the determination whether those costs were authorized under Occupations
Code, Sections 2001.458 and 2001.459.
One commenter suggested striking the language in subsection (b) which provides
that audits will be conducted in accordance with the Charitable Bingo Division's
Audit Reference and Procedures Manual because the incorporation of the manual
places an unnecessary burden on the licensees to know and understand its contents.
Agency response: The Commission disagrees with the comment. The manual
is referenced in the rule for the purpose of assuring the licensees that all
audit activity will be conducted in accordance with uniform audit standards
and practices. Under the rule, licensees are not required to know the contents
of the manual in order to be in compliance, nor is there a duty or obligation
being imposed on a licensee as a result of this language.
One commenter suggested striking subsection (b)(2) from the rule because
it would allow another division in the Commission to request an audit of a
licensee. The commenter further suggested that the language would allow the
Lottery Operations Division (characterized as the primary competitor of bingo)
to request an audit of a charity.
Agency response: The Commission disagrees with the comment. Whether another
division within the agency requests an audit does not affect competition between
bingo and lottery because the Charitable Bingo Operations Division has the
ultimate responsibility of determining the availability of resources and the
necessity of an audit even if requested by another division within the agency.
The language is permissive. An audit may result from a request by another
division within the Commission. Under the rule, another division within the
Commission cannot require that an audit be performed on a licensee. In addition,
the application of the rule goes beyond licensed charities.
One commenter suggested that charities should be allowed to review the
risk assessment identified in subsection (b)(4) which may be used by the Commission
to select a candidate for an audit.
Agency response: The Texas Public Information Act provides members of the
public with a basis for requesting information held by or for a governmental
body in Texas. Understanding that some information may be confidential and/or
excepted from disclosure under the Texas Public Information Act, a licensee
or member of the public may request access to public information.
One commenter suggested that the language in subsection (c) requiring that
licensees complete certain forms prior to the entrance conference will result
in additional record keeping costs to the licensees. The commenter suggested
that the licensee may provide the records in the format and manner in which
they are normally kept.
Agency response: The Commission disagrees with the comment. The act of
filling out pre-audit forms will not result in record keeping costs to the
licensee. Current Commission practice requires licensees to complete pre-audit
forms. Thus, this practice is not an additional record keeping requirement.
The forms require the entering of basic information about the licensee and
information which the licensee should have readily available. Commission rules
16 TAC 402.558 relating to bingo cards/paper and 16 TAC 402.554 relating to
pull-tab bingo require licensees to maintain a perpetual inventory. Thus,
the basic information required by the entrance conference forms is a compilation
of information already maintained by the licensee. Additionally, the commenter
did not specify the amount of the cost, so it is difficult for the Commission
to know whether the commenter believes the cost is minimal or extreme.
One commenter suggested adding language to the text of the rule regarding
the notification to licensees prior to the entrance conference. The rule as
proposed provides that the auditor will contact the licensee within 10 working
days of the notification letter to establish the date and time of the entrance
conference. If the auditor is unable to coordinate a date and time with the
licensee, the auditor shall set the date and time and give the licensee written
notice at least 10 working days prior to the entrance conference. The commenter
suggested adding a requirement that the auditor would have only 30 calendar
days after the notification letter to arrange for the entrance conference
time and date with the licensee before setting the entrance conference and
issuing the 10 working day notice letter.
Agency response: The Commission disagrees with the comment. It would be
confusing to apply a calendar day deadline in a paragraph within the rule
which currently consists of working day deadlines. The suggested 30 calendar
day timeline would overlap the 10 working days in which the auditor must contact
the licensee regarding the entrance conference. In addition, there may be
circumstances where 30 calendar days is too much time in which to schedule
an entrance conference, and there may be circumstances, such as during the
holiday season, where it is not enough time. The rule provides for adequate
notice for the licensees and appropriate discretion for the auditors. Additionally,
the language in the rule is reflective of current Commission practice, and
to the knowledge of staff there have been no complaints regarding this issue.
A few commenters suggested changing some of the language in subsection
(d). Specifically, one commenter suggested changing the sentence from, "If
applicable to the licensee, it must provide all records pertaining to:" to,
"If applicable to the licensee, it must provide records that pertain to the
following in sufficient detail to substantiate compliance with the Occupations
Code, Chapter 2001:." Another commenter suggested changing the term "records"
in the same sentence of subsection (d) to "non-confidential records." These
comments were consistent with comment from others regarding the voluminous
nature of the records required under the language of subsection (d) in the
rule as proposed and the potential for the licensee to incur costs associated
with copying records of that volume.
Agency response: The Commission agrees with both comments and has revised
the rule language accordingly. This change also addresses the concern of other
commenters related to the volume of records required and the potential costs
that a licensee may incur. Under the new language, the licensee, at the entrance
conference, may provide non-confidential records necessary to substantiate
compliance with the Bingo Enabling Act instead of all records relating to
bingo.
One commenter suggested that if licensees are required to provide the Commission
with original records and the Commission loses those records, then the licensee
would not be able to maintain the records for purposes of complying with the
Commission guidelines.
Agency response: The Commission disagrees with the comment. Under subsection
(e)(4), the auditor and licensee representative must sign a receipt form documenting
the specific original records received by the auditor. Additionally, it's
the licensee's choice whether to provide original records or copies at the
licensee's cost.
One commenter suggested that although he is pleased with the language in
the rule which relates to confidential records maintained by licensees, the
requirements in the rule will result in additional costs to the licensees.
Agency response: The Commission disagrees with the comment. The commenter
suggests that licensees would incur costs associated with the confidentiality
provisions of the rule. However, the commenter provided no quantifiable figure
or approximation of this cost. Commission staff worked closely with interested
parties to draft language to balance the confidentiality interests of licensees
the Commission's statutory directive to audit bingo. Likewise, regulated entities
should accept that there is a cost to being regulated.
One commenter suggested that the auditor should maintain a log of all privileged
or confidential information or summaries of such information received by the
auditor and return it to the licensee with the records after the audit and
confirm that no confidential records have been produced to any person.
Agency response: The Commission disagrees with the comment. The Commission's
Personnel Policy Handbook informs employees of their ethical obligations to
protect an individual's right to privacy. Under the rule, the licensee would
not be required to provide the Commission with confidential or privileged
information so long as the licensee provides a brief description of the information,
the reason for withholding the information, and other records necessary to
substantiate compliance with the Bingo Enabling Act. Under the rule, the licensee
has the discretion to limit the disclosure of confidential information. As
to access by people outside the agency, the Texas Public Information Act provides
that certain categories of information are public such as completed audits
and reports. If a completed audit contains information which has been represented
as confidential, the Commission has the ability to seek an Attorney General
Opinion on the matter. Even if the Commission did receive an open records
request relating to the licensee's records, the Commission, by law, would
be required to notify the licensee (third party) of its rights under the Texas
Public Information Act.
One commenter suggested adding a sentence to subsection (g)(2) which makes
it clear that the Commission cannot limit who may attend the exit conference
in addition to the licensee's representative.
Agency response: The Commission agrees with the comment and has revised
the rule language accordingly.
One commenter suggested placing the term "alleged" in front of the words
"violations" and "audit violations" in subsection (g)(3).
Agency response: The Commission agrees with the comment and has revised
the rule language accordingly.
One commenter suggested that the requirement in subsection (g)(4) that
the licensee make a copy of the audit report available to all members of the
licensee could potentially cause the involuntary disclosure of confidential
information. In addition, the commenter suggested that the Texas Non-Profit
Act may provide for certain disclosures to members of non-profit groups, but
that the rule should not contain such language. The commenter suggested removing
the term "members" from the text and requiring the licensee to make the report
available to officers and directors only.
Agency response: It is important to the Commission that members of a licensee
have the opportunity to review the audit report, detailed findings, recommendations
and responses. However, it is not the Commission's intent to circumvent issues
of confidentiality and other applicable law. Thus, the indicated language
in the subsection (g)(4) is prefaced by, "Unless otherwise provided by law,."
This should allow the licensee to comply with all applicable law regarding
disclosure and confidentiality while preserving the purpose of this provision
in the rule.
One commenter suggested that the rule as proposed may affect the way in
which his organization maintains records and accounts for bingo expenses and
charitable distributions.
Agency response: The Commission disagrees with the comment. The rule does
not address the way in which a licensee maintains its records, but instead
provides a uniform method of audit to be implemented by Commission auditors
in furtherance of statutory direction.
Interested Parties opposed to the rule: While none of the commenting parties
stated opposition to the entire rule, there were express statements of opposition
to certain provisions of the rule which addressed the imposition of audit
related costs on the licensees. Among the commenters expressing these comments
were Senator Eddie Lucio, Jr., Senator Kip Averitt, Honorable Kino Flores,
Steve Bresnen and Associates, and Stephen Fenoglio, Counselor and Attorney
at Law. The comments provided by Steve Bresnen and Associates were representative
of approximately ninety seven interested parties. The comments provided by
Stephen Fenoglio were representative of over 900 interested parties. In addition,
Jetta Services LLC provided comment on behalf of 7 bingo halls and the 34
licensees conducting bingo at those halls. While expressing its understanding
for the need of a general audit rule, Jetta Services LLC did not expressly
indicate opposition to or support for the rule.
Interested Parties in favor of the rule: While there were numerous parties
that provided comment to the rule, none of those commenting provided express
statements of support for or opposition to the entire rule.
The new rule is adopted under Occupations Code, Section 2001.054
which authorizes the Commission to adopt rules to enforce and administer the
Bingo Enabling Act, under Government Code, Section 467.102 which authorizes
the Commission to adopt rules for the enforcement and administration of the
laws under the Commission's jurisdiction, under Occupations Code, Section
2001.051(b) which grants the Commission broad authority to exercise strict
control and close supervision over all bingo conducted in Texas so that bingo
is fairly conducted and the proceeds derived from bingo are used for an authorized
purpose, under Occupations Code, Section 2001.560(c) which provides that the
commission may examine the books, papers, records, equipment and place of
business of a licensee, and Occupations Code, Section 2001.560(d) which provides
that the commission may charge a licensee an amount reasonably necessary to
recover costs associated with an authorized audit or investigation.
The new rule implements Occupations Code, Chapter 2001.
§402.590.General Audit Rule.
(a)
Definitions.
(1)
For purposes of this section, a licensee may include a
person issued a license under Occupations Code, Chapter 2001, or a Unit.
(2)
"Re-deposit" means the amount of money that must be deposited
into the bingo account to restore bingo proceeds that were disbursed from
the bingo account for items not authorized by the Bingo Enabling Act or the
amount of bingo proceeds not deposited in the bingo account as required by
Occupations Code, Chapter 2001, Section 2001.451(b).
(b)
General Provisions. The commission will perform an audit
to determine whether a licensee is in compliance with the requirements of
Occupations Code, Chapter 2001 and the charitable bingo administrative rules
("rules"). The audit will be conducted in accordance with the Charitable Bingo
Operations Division Audit Reference and Procedures Manual. An audit is a formal
examination of a licensee's accounting records and business activities. An
audit may be conducted as a result of:
(1)
a request by Charitable Bingo Operations Division management;
(2)
a request by another division of the commission;
(3)
a request by a commission auditor based on compliance violations
noted in a previous inspection, game observation, or review; or
(4)
by random selection process based on the division's risk
assessment.
(c)
Notification. The commission will notify in writing the
licensee's primary operator, business contact, officer, unit manager or designated
agent. The notification letter will state the period to be audited and identify
the records that must be available for commission review. Certain forms including,
but not limited to, a questionnaire and a physical inventory request with
instructions, may be sent by the commission to the licensee with the notification
letter. The forms must be completed prior to the entrance conference and the
information must be provided in the manner prescribed by the commission. Not
later than 10 working days from the date of the notification letter, the auditor
will contact the licensee and schedule the date, time and place of the entrance
conference. If the auditor is unable to coordinate with the licensee regarding
the date and time of the entrance conference, the auditor shall set the date
and time of the entrance conference and provide the licensee with written
notice of the entrance conference at least 10 working days prior to the entrance
conference.
(d)
Records Required. Records covering the designated audit
period must be provided to the auditor at the entrance conference. The auditor
may require other records or information based on findings during the audit.
If applicable to the licensee, it must provide non-confidential records that
pertain to the following in sufficient detail to substantiate compliance with
the Occupations Code, Chapter 2001:
(1)
The operation of bingo;
(2)
The licensee's charitable distributions;
(3)
The licensee's charitable purpose;
(4)
Rental receipts;
(5)
Expenditures; and,
(6)
Lease agreements.
(e)
Entrance Conference.
(1)
The auditor will meet with the responsible persons including
the primary operator, business contact, bookkeeper, unit manager, designated
agent or any other person familiar with the licensee's bingo operations. The
licensee must complete the forms included with the notification letter prior
to the entrance conference and must provide the requested records and completed
forms at the entrance conference.
(2)
If disclosure of confidential information during the audit
would impair a constitutional or statutory right of privacy, then the information
may be withheld so long as the licensee provides the commission with a brief
description of the information withheld, the statutory or constitutional basis
for non-disclosure, and the records necessary to substantiate compliance with
Occupations Code, Chapter 2001 and applicable commission rules. Information
the licensee believes is privileged, such as a privileged attorney/client
communication or any other privilege recognized under the Texas Rules of Evidence,
may be withheld so long as the licensee provides the commission with a brief
description of the information withheld, the privilege claimed, and the records
necessary to substantiate compliance with Occupations Code, Chapter 2001 and
applicable commission rules.
(3)
The ability of the licensee to withhold certain information
based on privacy rights or privileges does not in any way relieve the licensee
of its burden to substantiate compliance with Occupations Code, Chapter 2001
and applicable commission rules. If any records requested are not provided
at the time of the entrance conference the auditor will issue a written final
request for these records. Except for information that is withheld due to
the licensee's claim of a valid privilege, the requested records must be provided
within 10 working days of receipt of the request.
(4)
The auditor and the licensee's authorized representative
will sign a receipt form documenting the specific original records received
by the auditor. Alternatively, the licensee may provide the auditor with copies
of all requested records at the expense of the licensee.
(f)
Fieldwork. The audit may include, but is not limited to,
reviewing the licensee's financial records, performing a game observation,
preparing paper depletion analysis, preparing pull-tab ticket analysis, examining
all books and records necessary to substantiate the licensee's quarterly reports,
verifying that bingo proceeds are disbursed according to the Bingo Enabling
Act and rules, and meeting with members of the licensee involved in bingo
to discuss its bingo operation. The auditor will provide the licensee with
an estimated completion date of all fieldwork.
(g)
Exit Conference.
(1)
At the conclusion of the audit, the auditor will schedule
an exit conference with the licensee. At the exit conference, the auditor
will provide the licensee with the draft audit report, present audit findings,
discuss violations noted, explain any audit schedules and explain any supporting
exhibits. The auditor will also return original records to the licensee.
(2)
The licensee may be represented by the primary operator,
business contact, officer, unit manager, designated agent or any other person
familiar with the bingo operations and accounting systems. In addition to
the licensee's representative, the licensee may allow other persons to attend
the exit conference.
(3)
The licensee will have an opportunity to gather additional
documentation related to the audit findings, alleged violations, or fund reimbursement.
The licensee may use the exit conference as an avenue to resolve any alleged
audit violations. The licensee will have 15 working days after the exit conference
date to respond in writing to all relevant audit findings and recommendations
contained in the draft audit report.
(4)
Unless otherwise provided by law, the licensee must make
available a copy of the audit report with detailed findings, recommendations
and responses to all officers, directors, and members of the licensee.
(h)
Resolution. Proof of corrective measures taken to address
any alleged audit violations must be submitted in writing to the commission
within 30 working days of the exit conference. If it is determined that a
licensee must make a re-deposit into its bingo bank account, the re-deposit
may not be made with funds derived from the conduct of bingo.
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 February 2, 2004.
TRD-200400636
Kimberly L. Kiplin
General Counsel
Texas Lottery Commission
Effective date: February 22, 2004
Proposal publication date: October 31, 2003
For further information, please call: (512) 344-5113