                               August   15,   1975


The Honorable  James E. Laney                        Opinion   No.   H- 666
Chairman
House Administration    Committee                    Re: Effect of a Representative’s
House of Representatives                             charging expenditure to the State
State Capitol                                        in excess of the amount authorized
Austin,  Texas   78711                               by law.

Dear Representative   Laney:

       You mve asked our opinion on the applicability   of article 39.01,             Penal
Code, to a situation in which a member of the House of Representatives
charges expenditures   to the House in excess of amounts authorized.

         The Legislature   may provide by resolution for reimbursement      of    ”
members’    official expenses during the interim between legislative    sessions.
Legislature  Reorganization   Act of 1961, V. T. C. S. art. 5429f,  4 21; Terre11
v. Kin& 14 S. W. 2d 786 (Tex. Sup. 1929); Attorney General Opinions M-112
(1989, M-104 (1967) and M-101 (1967).  The House of Representatives of the
64th Legislature has enacted H. S. R. No. 4 which provides in part:

               RESOLVED,       That each member of theHouse          of’
               Representatives     of the 64th Legislature     be allowed
               a monthly operating budget for office staff and other
               operating expenses,      including,   but not limited to,
               office suppli.es,  office equipment,     postage,   postage
               credit in an amount not to exceed a total of $3,000         at
               any one time, printing,      telephone,   travel,  and other
               expenditures    as authorized    by the Committee     on House
               Administration    and subject to the following:

                   (I) the budget shall not exceed the sum of $4,000            per
               month during the regular   or called session;

                   (2) the budget shall not exceed,the   sum of $3,000          per
               month when the legislature   is not in eesBion;




                                    p. 2914
The Honorable       James        E.   Laney   - page 2      (H-666)




                     (3) the unexpended balance of a monthly budget
                shall not carry forward to the next month or succeeding
                months and all expenditures    shall be.charged against
                the budget for the month in which they were encumbered.
                A returning member     of the house may be allowed to carry
                over an accumulated    sum not to exceed $3,000   from the
                previous   session;

                .    .   . .


        You have specifically  asked whether a violation of section 39.01 of the
Penal Code could occur if a member of the House had exhausted any funds
carried over from a previous    session and charged expenditures     to the House
of more than $3,000   in a month in which the Legislature   is not in session.
Your question is limited to expenditures   made for official purposes and does
not extend to totally private expenses which might be charged to the State.
Section 39.01 provides in part:

                (a) A public servant commits                   an offense if, with intent
                to obtain a benefit for himself                or to harm another,   he
                intentionally or knowingly:


                         (1) commitsan act relating to his office                 or
                employment     that constitutes   an unauthorized                 exercise
                of his official power;

                    (2) commits  an act under color of his office                       or
                employment  that exceeds his official power;

                .    .   .   .


                (b) For purposes of Subsection     (a)(2) of this section, a
                public servant commits     an act under color of his office or
                employment    if he acts or purports to act in an official
                capacity or takes advantage of such actual or purported
                capacity.

                (c) An offense under Subsections                      (a)(l) through   (a)(4) of this
                section is a Class A misdemeanor                       . . . .




                                                p.   2915
The Honorable    James   E.   Laney   - page 3    (H-666)




          A Representative’s    authority to charge expenditures   to the State is
limited by H. S. R. No. 4.      When he goes beyond the limits established       in that
 resolution he exceeds his official power.       Thus, in our opinion the act of
intentionally  or knowingly charging expenditures      to the State beyond those
authorized in H. S. R. No. 4 could constitute a violation of section 39.01.
 The converse    of this principle is that an expenditure made solely due to
carriessness   or negligence    would not constitute a violation of section 39.01,
even though it could give rise to civil litigation.    Of course,   whether a violation
occurs in an individual case depends on the facts of the particular        case.

                                  SUMMARY

                A member of the House of Representatives     who intentionally
                or knowingly charges expenditures   to the State in excess of
                the amount authorized  by H. S. R. No. 4 could be subject to
                prosecution under section 39.01 of the Penal Code.

                                                    Very    truly yours,




                                             u      JOHN L. HILL
                                                    Attorney General       of Texas




DAVID   MA KENDALL,AFirst        Assistant




C. ROBERT HEATH,         Chai,rman
Opi~nion Committee




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