                                  March      13,    1975



The Honorable   A. R. Schwartz                        OpinionNo.          H-    551
Senate Chamber
State Capitol Building                                Re:       Whether legislators  are
Austin,  Texas 78711                                            prohibited from accepting
                                                                certain honorariums   under
Dear Senator     Schwartz:                                      section 36.08.  Penal Code

    Section 36.08 of the Penal        Code prohibits        gifts to public servants   under
certain circumstances.

   You have asked:

        [W]hether an honorarium       paid [to a legislator] by
        an organization   for participation   in a program of
        that organization   would be a prohibited gift or
        legitimate  fee.

    Without knowledge of the facts of the particular   situation it is not possible
to determine whether certain conduct constitutes     a violation of law,    However,
a review of the applicable  statutes may be of assistance     in helping to make
such a determination   as to the propriety of particular   conduct.

    Section    36.08   of the Penal   Code provides         in pertinent       part:

             (f) A public servant who is a member of. ~.~ . the
        legislature   . . . commits   an offense if he solicits,
        accepts,    or agrees  to accept any benefit from a person
        the public servant knows is interested     in any matter
        pending before or contemplated      by the legislature   or
        an agency of the legislature.

            (g) An offense      under.this     section     is   a Class    A
        misdemeanor.




                                        p.   2475
The Honorable    A.   R.    Schwartz,     page 2 (H-551)




    “Benefit”   is defined in section       1.07(a)(6)   of the   Penal    Code as:

             * . , anything reasonably  regarded as
        economic    gain or advantage, including benefit -
        to any other person in whose welfare the bene-
        ficiary is interested.

    “Person”     means     an individual,    corporation    or association.       Penal Code
sec. l.O7(a)(27).

    The Penal Code provisions    prohibiting gifts to public servants were adopted
without substantial  change on the recommendation     of the State Bar Committee
on Revision   of the Penal Code.   The Practice   Commentary     in Vernon’s
Annotated Penal Code, based upon the State Bar Committee’s          comments which
were presented with the proposed ,Penal Code, explains the purpose of these
provisions  as follows:

        Although a gift to a public servant who may make an
        official decision affecting the donor may be innocent,
        it casts grave doubts on the integrity of the govern-
        mental process.       It may even be a bribe in which an
        agreement     simply cannot be proven.       This section,
        therefore,    prohibits such gifts to ensure governmental
        integrity and to penalize the unp~rovable bribe . . . [T]he
        offense applies only if the public servant knows that the
        donor is or may become interested         in his or his agency’s
        official action.    Gifts from disinterested    citizens are
         not covered.

             Because of the broad definition of ‘benefit’ in
        Section 1.07,   the offense covers more than gifts of money,
        property,   or vacations.     Benefits such as employment    or
        an investment    opportunity,   either for the official or a
        member    of his family,   are included.

        Practice   Commentary,           Vernon’s   Annotated      Penal   Code
        f, 36.08 at 25.

     Section 36.10 of the Penal         Code sets   out defenses     to prosecution   under
section 36.08.    It provides:




                                          p. 2476
        .




I   .




            The Honorable   A.R.   Schwartz     ,     page 3    (H-551)




                                It is a defense to prosecution           . . . that the
                            benefit involved was:

                                (1) a fee prescribed  by law to be received by
                            a public servant or any other benefit to which-the
                            public servant is lawfully entitled:

                                 (2) a gift or other benefit conferred          on account
                            of kinship or a personal,    professional,          or business
                            relationship    independent of the official        status of the
                            recipient;

                                 (3) a trivial benefit incidental to personal,
                            professional,     or business contacta that involves
                            no substantial risk of undermining official im-
                            partiality;   or

                                 (4) a contribution made under the election laws
                            for ~the political campaign of an elective public servant
                            when he is a candidate for nomination or election to
                            public office.

                    The commentary       to section    36. IO explains     the defense    relating   to
            lawful fees and b,enefits:

                                  Subdivision (1) exempts fees prescribed      by law
                            and compensation       earned by the recipient in an un-
                            official capacity,    for example.   The conflict of
                            interest that may exist when a public official is
                            employed in an unofficial capacity by someone with
                            a pecuniary interest in his official acts can be handled
                            more appropriately~ by oomprehensive        conflict-of-
                            interest statutes than by criminal sanctions.         See,
                            e.g.,    [V. T. C. S.] art. 6252-9b.

                            Practice  Commentary,         Vernon’s       Annotated   Penal
                            Code 5 36.10 at 27-28.




                                                      p. 2477
The Honorable     A. R.   Schwartz,    page 4       (H-551)




         An honorarium      about which you inquire, is sometimes          defined as
a payment or reward,       usually in recognition    of services     on which custom
or propriety forbids any fixed business price-tobe           set,~~~ Webster’s     New
International   Dictionary,    p. 1196 (2nd ea.).    It may be a free gift or
gratuitous payment, as distinguished         from hire or compensation         for
service.    Black’s Law Dictionary,       p. 869 (4th ed.).    --And see Attorney
General Opinion C-523 (1965).          The term also has been defined to include
a fee for professional    services.     Oxford English Dictionary        (compact
ed.) p. 1326; Random House Dictionary of the English Language,                  p. 682.
Thus, the word is commonly          used to embrace both the concept of gift
and of compensation.        Compare e.g.,      Bogardus v. Commissioner            of
Internal Revenue, 302 II. S. 34 (1937) with Bogardus v. Commissioner
of Internal Revenue,     88 F. 2d 646 (2d Cir. 1937).       The circuit court
decision in Bogardus      was reversed      by the Supreme Court.

          Payment or receipt of an honorarium        could establish the “benefit”
element of the offense.      Whether a defense exists,      such as the “benefit
to which the public servant is lawfully entitled” defense found in section
36. IO(l), will depend in large part on the nature of the particular
“honorarium.    ” If it is a professional    fee, for example,     the defense may
well be applicable.     If, on the other hand, the “honorarium”         represents
a gift or gratuitous payment,     a prudent legislator    would be advised to be
prepared that some other defense applied,         e.g.,   that the honorarium
was conferred    on account of kinship or a personal,        professional,   or
business relationship     independent of the official status of the recipient.
Absent proof of such a defense,       the offense .night be established.

        Your question is phrased in terms of acceptance   of an honorarium.
Whether the offense is established   will always depend on the nature of the
honorarium   which involves a question of fact.

         However,      in answer to your question,    it is our opinion that under
-I-..  -i-cumstances       a conviction under section 36.08 for receiving an
honorarium     could be sustained.       Whether acceptance     of a particular
honorarium     will constitute the offense will depend in large part on the
nature of the honorarium,        e.g.,  whether it is a gratuitous payment or
a professional    fee.




                                        p.   2478
The Honorable   A.R.   Schwartz,     page 5       (H-551)




                                   SUMMARY

                    Depending on the circumstances,    receipt by
                a member of the Legislature   of an honorarium,
                may be a gift prohibited under section 36.08,
                Texas Penal Code.

                                                      Very   truly yours,




                                                      Attorney   General    of Texas




Opinion   Committee




                                     p.   2479’
