                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                              November 5, 2008



Mr. Brian S. Rawson, Executive Director                 Opinion No. GA-0679
Texas Department of Information Resources
Post Office Box 13564                                  Re: Construction of a conflict of interest statute,
Austin, Texas 78711-3564                               Government Code section 2054.022(a)(7), which
                                                       prohibits a board member or executive director of
                                                       the Department of Information Resources from
                                                       accepting or receiving "money or another thing of
                                                       value from an individual, firm, or corporation to
                                                       whom a contract may be awarded" (RQ-0706-GA)

Dear Mr. Rawson:

       You ask about the construction of a conflict of interest statute, Government Code section
2054.022(a)(7), which applies to a board member or executive director of the Department of
Information Resources (the "department" or "DIR").l Section 2054.022(a)(7) of the Government
Code provides that a board member or the executive director "may not ... accept or receive money
or another thing of value from an individual, firm, or corporation to whom a contract may
be awarded, directly or indirectly, by rebate, gift, or otherwise." TEX. GOV'T CODE ANN.
§ 2054.022(a)(7) (Vernon Supp. 2008) (emphasis added). In your view, the words "contract" and
"may" are so broad or vague that department board members cannot determine what actions are
prohibited as a conflict of interest. Request Letter, supra note 1, at 2.

        Courts construing a statute "begin with its language, and when possible, ... determine what
the Legislature intended from its own words." Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242
S.W.3d 1, 19 (Tex. 2007). Section 2054.022(a) contains seven provisions describing conduct,
relationships, employment, and ownership interests that constitute a conflict ofinterest. TEX. GOV'T
CODE ANN. § 2054.022(a)(1)-(7) (Vernon Supp. 2008). While six of the provisions expressly
concern contracts or entities involving "information resources technologies," subsection (a)(7)
contains no such reference. Id. 2 Section 2054.022(a)(7) does not contain any qualifying or limiting
language that would illuminate the meaning of the phrase "to whom a contract may be awarded."



        ISee Letter from Brian S. Rawson, Executive Director, Texas Department of Information Resources, to
Honorable Greg Abbott, Attorney General ofTexas (Apr. 24,2008) (on file with the Opinion Committee, also available
at www.texasattorneygenera1.gov) [hereinafter Request Letter].

         2"Information resources technologies" is defmed as "data processing and telecommunications hardware,
software, services, supplies, personnel, facility resources, maintenance, and training." TEX. GOV'T CODE ANN. §
2054.003(8) (Vernon Supp. 2008).
Mr. Brian S. Rawson - Page 2                            (GA-0679)



         However, in construing a statute we may also consider its intended purpose. Univ. ofTex.
·Sw. Med Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358-60 (Tex. 2004). Section 2054.022's manifest
purpose is to enumerate conduct that poses a conflict of interest for a department board member or
the executive director. TEx. GOV'T CODE ANN. § 2054.022 (Vernon Supp. 2008). From that
purpose, we may reasonably presume that subsection (a)(7) concerns only contracts pertinent to the
official functions of a department board member or its executive director. The· board's
responsibilities include promulgating department rules and policies, and preparing various reports
about state government's use of information resources technologies to the Legislature and others.
Id. §§ 2054.029(c), .055, .094, .102(b), .118(b) (Vernon 2000 & Supp. 2008). The DIR has
responsibilities concerning department and state agency contracts, in addition to its advisory,
coordinating, and support roles. 3 And the board, as the governing body for the DIR, exercises
authority impacting the DIR's contract responsibilities. Id. §§ 2054.021 (a), .029(c) (Vernon Supp.
2008). Thus, when viewed in light ofthe board's statutory responsibilities, section 2054.022(a)(7)
pertains to contracts that may be awarded by the DIR or by state agencies that are subject to the
DIR's review, oversight, and reporting responsibilities. And while the majority of such contracts
likely will pertain to information resource technologies, any other kinds ofcontracts within the scope
ofthe DIR's responsibilities would also be included within subsection (a)(7)'s prohibition.

        You also ask about subsection (a)(7)'s use of "may" in the phrase "to whom a contract may
be awarded." Request Letter, supra note 1, at 3. Chapter 2054 does not define "may.,,4 Generally,
when statutes use the word "may" in connection with uncertain events, "the significance ofthe word
'may' or 'might' is not to be taken as including every conceivable possibility, but must be reasonably
applied, having in mind the purpose of the statute and the injury or possible wrong which it was
designed to prevent." Europak, Inc. v. Hunt County, 507 S.W.2d 884, 887 (Tex. Civ. App.-Dallas
1974, no writ) (quoting Lewiston Milling Co. v. Cardiff, 266 F. 753, 759 (9th Cir. 1920)). Section
2054.022(a)(7) is manifestly intended to insulate board decision making from the potential for
influence by entities that stand to benefit from the decisions ofthe board and the DIR. We conclude,
then, that in section 2054.022(a)(7), an entity "to whom a contract may be awarded" is an entity
having a practical possibility of being awarded a contract by the DIR or by a state agency that is
subject to the review, oversight, or reporting responsibility of the DIR or the board.

        Finally, while you focus on the meaning ofthe phrase "to whom a contract may be awarded,"
you also ask about the kinds oftransactions prohibited by subsection (a)(7) when they occur between
a board member or the executive director and an entity "to whom a contract may be awarded."
Request Letter, supra note 1, at 2-3. Under subsection (a)(7), a board member or executive director



           3See, e.g., ide §§ 2054.1015,2157.068 (requiring DIR to negotiate the price ofcertain information technologies

commodity items that state agencies may purchase through DIR), 2054.252 (requiring DIR to implement the Texas
Online Project), 2054.351-.353, .375-.391 (requiring the DIR to administer a common electronic system for
occupational licensing transactions and to establish statewide technology centers). See generally Dep't of Information
Resources, Overview ofAgency Scope and Functions, available at http://www.dir.state.tx.us/dir_overview/index.htm
(last visited Oct. 31, 2008).

        4From context, it is clear that the Code Construction Act's defmition of"may" as generally meaning authority,
permission or power does not apply. See TEX. GOV'T CODE ANN. § 311.016(1) (Vernon 2005).
Mr. Brian S. Rawson - Page 3                       (GA-0679)




may not "accept or receive money or another thing ofvalue ... directly or indirectly, by rebate, gift,
or otherwise" from certain entities that may contract with state government. TEX. Gov'TCODE ANN.
§ 2054.022(a)(7) (Vernon Supp. 2008). While the prohibition is broadly worded, other provisions
ofsubsection (a) suggest that not all financial transactions with an entity that may contract with state
government represent a conflict of interest. In particular, subsection (a)(4), which provides that a
board member or executive director may not receive more than "25 percent of the individual's
income from a business entity that has a substantial interest in the information resources technologies
industry and that may contract with state government," suggests that income from such resources that
does not exceed that amount is not, per se, a conflict of interest. Id § 2054.022(a)(4).

        Moreover, in subsection (a)(7) the phrase "accept or receive money or another thing ofvalue"
is modified by the phrase "by rebate, gift, or otherwise." Generally, "when words ofa general nature
are used in connection with the designation ofparticular objects or classes ofpersons or things, the
meaning ofthe general words will be restricted to the particular designation." Hilco Elec. Coop. v.
Midlothian Butane Gas Co., 111 S.W.3d 75, 81 (Tex. 2003). Applying that rule of construction,
subsection (a)(7) concerns the acceptance or receipt of money or other thing ofvalue only when the
conveyance is in the nature ofa gift, rebate, or similar transaction. While "gift" and "rebate" are not
defined, the word "gift" ordinarily implies a lack ofreturn consideration. Long v. Long, 234 S.W.3d
34, 40 (Tex. App.-EI Paso 2007, pet. denied) (citing Hilley v. Hilley, 342 S.W.2d 565, 569 (Tex.
1961)). 5 And in broad terms, a "rebate" is "a return of a part of a payment." MERRIAM-WEBSTER' S
COLLEGIATE DICTIONARY 1037 (11 th ed. 2005). Construing subsection 2054.022(a) as a whole, we
conclude that subsection (a)(7) concerns the acceptance or receipt of money or other thing ofvalue
in the nature of a gift or other conveyance suggesting a lack of quid pro quo. See Tex. Dep't of
Transp. v. City ofSunset Valley, 146 s. W.3d 637, 642 (Tex. 2004) (holding that a statute's language
should be construed consistently with all of its provisions).

        In sum, section 2054.022(a)(7) prohibits aDIR board member or the executive director from
accepting or receiving money or a thing of value by rebate, gift or otherwise, from an individual,
firm, or corporation if there is a practical possibility that such entity will be awarded a contract by
the department or by a state agency that is subject to the board's review, oversight, or reporting
responsibilities. Whether a specific conveyance is prohibited by subsection (a)(7) will depend on
the particular circumstances, a determination to be made in the first instance by the individual
members and the executive director. TEX. GOV'T CODE ANN. § 2054.025(c) (Vernon 2000).




         5See TEX. GOV'T CODE ANN. § 311.011 (Vernon 2005)'(providing that undefmed terms are ordinarily given
their common meaning).
Mr. Brian S. Rawson - Page 4                   (GA-0679)



                                       SUMMARY

                       Government Code section 2054.022(a)(7) prohibits a board
               member or the executive director of the Department of Information
               Resources from receiving money or a thing of value, by rebate, gift,
               or otherwise, from an individual, firm, or corporation when there is
               a practical possibility that such entity will be awarded a contract by
               the department or by a- state agency that is subject to the review,
               oversight, or reporting responsibilities ofthe department or its board.
               Whether a specific conveyance is prohibited by subsection (a)(7) will
               depend on the particular circumstances, a determination to be made
               in the first instance by the individual members and the executive
               director.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANC·Y S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
