                                                                              ,




                                 May 21, 1974


The Honorable David Finney,         Chairman      Opinion No. H- 311
State Affaira Committee
House of Representatives                          Re: Questions concerning activi-
Aurtin, Texas 70767                               ties report required by Houee
                                                  Bill 2, b3rd. Leg., Article 6252-9~.
                                                  V. T. C. S.

Dear Representative    Finney:

      On behalf of the State Affairs Committee of the Houre of Repreeenta-
tivee you have eubmitted to ue two questions concerning Houee Bill 2 af
the 63rd. Legirlature  (Acte 1973, 63rd Leg.,  ch. 422, p. ,1096) incorporatad
into Vernon’s Texas Civil Statutes as Article 6252-9~.

      Your firrt   question aeke:

                 “h&y the entity covered in Section 3 (a)(l) designate
            ite employed legislative   representative or lobbyist as
            ite agent and authorize the agent to file its registration
            pursuant to Section 5 of the Act and to compile and file
            ite activity report as required by Section 6 of the Act? ”

      The cited section of the statute i6:

                “Sec. 3. (a) The following persone must register
            with the secretary as provided in Section 5 of this Act:
                (1) a person who makes a total expenditure in
            excess of $200 in a calendar quarter, not including his
            own travel, food, or lodging expenses, or his own
            memberehip duea, for communicating directly with one
            or more members of the legielative   or executive branch




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The Honorable   David Finney       pagc~ 2     (H-311)




            to influence   legislation;   . . .”

       Section 2 (1) of the statute defines “person” to include not only
individuals, but also corporations,     associations,  firms, partnerships,
committees,    clubs~and “other organizations     or groups of persone who
are voluntarily acting in concert. ”
,
       Sections 5 and 6, covering     registration   under the Aet and the activi-
ties reports, ,provides m part:

                 “Sec. 5. (a) Every person required to register
            under Section 3 of this Act shall file a regietration
            form with the secretary within five days after the
            first undertaking, requiring regtrtration  except as
            otherwise provided herein.

               (b) The registration   shall be written, verified,
            and shall domain the following information:

                (c) Each person who made expenditures on behalf
            of a r.egistrant that are required to be reported by
            Subsection (b),of this section or who has other informa-
            tion requi,red to be reported by the registrant under this
            section or Section 5 shall provide a full, verified account
            of his expenditures to the regietrant at least seven days
            before the registrant’s   report is due to be filed.

                “Sec. 6. (a) Every person registered      under Section 5
            of this Act shall file with the secretary a report concerning
            the activities set out in Subsection (b) of this section. The
            report must,be filed:

                (1) between the 1st and 10th day of each month subsequent
            to a month in which the legislature  is in session covering
            the activities during the previous month; and




                                   p. 1438
The Honorable    David Finney     page 3 (H-311)
                                        :~



                 (2) between the 1st and 10th day of each month
             immediately   eubeequent to the last month in a
             calendar quarter covering the activities dud ng
             the previoue quarter.

                  (b) The r,eport shall be,written,   verified,   and
           ~. contain the :,following information:  . . .

                  (c) If a registrant’s   activities are done on
             behalf of the members of a group other than a
             corporation,     the registration    form ehall include
             a etatement of the number of members of the group
             and .afull description of the methods by which the
             regirtrant develop8 and makee decisione about
             poeitionr on policy. ‘,

                  (d) A registrant shall file a supplemental regietra-
          ~8..tion indicating any change in the information contained
             in the rsg~mtration within.10 days,after the date of the
           ,‘chrnge; ”

       Both 5 5 and.$ 6~require, ~respectively,      that ,the ra&tration    and the
report whioh they require be “written;       verified,   and; contaid’ ,certain ,in-
formation.    5 0 .directr the Secretary of State to design and provide appropriate
forms.    Unless we take the view that the requirement of verification          was
intended to mean that only the registrmt        could sign the reporte, nowhere
do,es the Act require that either the 5 5 registration       or the 9 6 activity report
be prepared,     signed or filed by any particu)ar person, and we answer your
first queetion, that,any person covered by 8 3 (a)(l), may authorize its
employed legislative       representative or lobbyist to act in its behalf and to
file the registration     or report which it is required to file, provided the
authorization ir bona fide and is not made to avoid, r~esponeibility under the
Act.

      However,     the entity required to file will remain liable for penalties and
will be in violation of criminal laws for non-compliance      with the statute.




                                  p. 1439
The Honorable   David Finney     page 4    (D-311)




Section 9 of the Act, makesfacriminal      offense to violate any provision
of the Act.  Regardlear   of who actually prepares,    verifies.or   files the
report, the registrant is responsible for the performance        of those acts
and if the report filed on behalf of a registrant does not contain all the
information required by either $ 5 or $ 6, the registrant,       by $ 9, is made
guilty of a misdemeanor    and subject to monetary penaltien in three times
the amount of compensation or reimbursement        received or expenditure
made.

      Your second,quertion     asks:

             tlCk the registrant be required under penalty mf
             law to,report expenditures by non-registrants  of
             which he ie unaware and could not through diligmnt
             effort discover? ”

       Among the expenditures a registrant is required to report under
$ 6 of the Act are expenditures “made by others on behalf of’the registrant
for those direct communications        if the expenditures were made with his
express or implied consent or were ratified by him, . . ” Section 6 (b)(l).
You note in your letter. that a lobbyist might urge members of an associa-
tion to contact members of the Legislature,         and yet have no knowledge of
and l.ittle possibility of.discovering     whether they have so acted or what
expenditures they have made, even though the lobbyist employs due diligence.

      While the Lobby Act does not prescribe  a culpable mental state in
regard to a violation of $ 6, ,tht Penal Code requires one “unless the
definition plainly dispenses with any mental element. ” Sec. 6.02 (b),
V. T. P. C.

       When the definition is merely silent as to the mental state, Subsection
6.02(b) presumes that one is required and Subsection 6.02 (c) requires that
it amount at least   to recklessness.

       A person acts recklessly when “he is aware of but consciously
disregards a substantial and unjustifiable risk that the circumstances       exist




                                 p. 1440
                                                            ,~j .I ::.
The Honorable   David Finn&    'pa&e 5   (H-311)




or the result will occur. ‘I Rechlessness requires a “gross devifrtion,from
the standard of care that an ordinary person would exercise. ” Sec. 6. d3 (c),
V. T. P. C.

       Thus, if the rcgintrant has exercised reasonable diligence to determine
expenditures made by others on his behalf and cannot ‘difyver    any fa.cts to
report, we do not believe he could be guilty of the defir@  crime.

                              SUMMARY

                 A “person”,  as defined in Art. 6252-9~~ .Vi T.&S,     :       .
            who malcee a total expenditure in excess of $200 in ‘a .,.
            calendar quarter for communicating directly witha
            member of the legislative    branch to influence legiela-
            tion may designate its employed legislative      rwrementa-
            tive or lobbyist to prepare, verify and fi&e the requtred
            registration  and activity reports, but the psrron required
            to file under either 8 5 or 8 6 of .the Act will remain
            civilly and criminally liable for compliance with those
            sections of the statute.

                  A registrant under the Act who cannot, through
            diligent effort, discover expenditures made by others
            on his behalf, may be excused,for a failure to report
            them.

                                               very   truly your*,




                                               JOHN L. HILL
                                               Attorney General      of Texas




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The Honoiable   David Finneg   page 6    (~-311)




APP#?QVjD:




DAVID M. KENDALL,      ‘Chairman
Opinion Comznittee




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