                               ATTORNEY GENERAL OF TEXAS
                                             GREG       ABBOTT




                                                  July 11,2003



The Honorable Eddie Lucia, Jr.                              Opinion No. GA-0087
Chair, Senate Committee on
  International Relations and Trade                         Re: Whether a legislator may engage in a
Texas State Senate                                          business providing consulting, marketing, and
P.O. Box 12068                                              public relation services to business clients that
Austin, Texas 78711                                         have dealings with local and federal officials
                                                            and local governmental bodies (RQ-0016-GA)


Dear Senator Lucia:

          You ask whether a state legislator may provide advertising, consulting, marketing, and public
relations services to business clients by communicating and dealing with local officials, federal
officials, and local governmental bodies.’

         In the request letter you state that you own two service companies, Rio Shelters, Inc. and
Rio Consulting. See Request Letter, supra note 1. You provide advertising services through Rio
Shelters, Inc., and “consulting, marketing, and public relations services” through Rio Consulting.
Id. With respect to Rio Consulting, your services include “dealings and communications with local
city and county officials, federal officials, as well as local units of government (e.g., county
government).” Id. The services you provide do not involve communications or business dealings
with state agencies. See id.

         Your letter does not elaborate on the nature of your clients’ businesses or your “dealings and
communications” on their behalf with government officials or entities, and we cannot anticipate all
the possible circumstances your employment might entail. Furthermore, whether a public servant’s
outside employment creates a conflict of interest frequently requires resolving fact questions, which
is beyond the purview of the opinion process. See Tex. Att’y Gen. Op. Nos. GA-0003 (2003) at 1
n.2 (opinion process cannot resolve fact questions); JIM-310 (1985) at 5 (whether clerk’s employment
as title company manager may constitute misconduct is a fact question that cannot be addressed in
an opinion); H-688 (1975) (whether legislator’s services for teacher association would violate
conflict of interest statutes is largely a question of fact). Consequently, we address your question
in general terms, considering constitutional and statutory provisions relevant to a legislator’s



         ‘See Letter from Honorable Eddie Lucia, Jr., Texas State Senator, to Honorable Greg Abbott, Texas Attorney
General (Feb. 11, 2002) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Eddie Lucia Jr. - Page 2            (GA-0087)




decision to undertake a particular employment.       Should you have a specific concern, you may wish
to consult with private counsel.

         The Texas Constitution contains legislative conflict of interest provisions in article III,
sections 18 and 22. Article III, section 18 provides in relevant part that “[no] member of the
Legislature be interested, either directly or indirectly, in any contract with the State, or any county
thereof, authorized by any law passed during the term for which he was elected.” TEX. CONST.art.
III, 5 18. This constitutional proscription is intended to prevent a legislator from personally profiting
as a result of holding office. See Washington v. Walker County, 708 S.W.2d 493, 495 (Tex.
App.-Houston      [ 1st Dist.] 1986, writ ref d n.r.e.); see also Damon v. Cornett, 781 S.W.2d 597,600
(Tex. 1989) (holding that this clause is intended to “prevent improper financial gain by members of
the legislature”). Important considerations relevant to your question would include whether your
services to a client involve a contract with the state or a county, whether you are directly or indirectly
interested in the contract, and whether the contract was authorized by a law passed during your
tenure in office. See Damon, 781 S.W.2d at 600; Washington, 708 S.W.2d at 495-46.

        Article III, section 22 of the Texas Constitution     provides:

                   A member who has a personal or private interest in any measure or
                bill, proposed, or pending before the Legislature, shall disclose the
                fact to the House, of which he is a member, and shall not vote
                thereon.

TEX. CONST. art. III, 5 22.     The courts have not construed this provision.     Commentators have
suggested that this constitutional provision leaves to the individual legislator’s judgment whether
the legislator has a “personal or private interest” requiring disclosure and abstention. See TEX.
CONST. art. III, 5 22 interp. commentary      (Vernon 1997); 1 GEORGED. BRADEN et al., THE
CONSTITUTION    OFTHESTATEOFTEXAS:AN ANNOTATEDANDCOMPARATIVE                    ANALYSIS141(1977).

         Chapter 572 of the Texas Government Code sets forth standards of conduct for public
servants, including legislators. See TEX. GOV’T CODEANN. 9 572.002(4)(A), (12) (defining a “state
officer” in chapter 572 to include elected officials, specifically, members of the legislature). Section
572.001 declares the state’s policy and legislative intent:

                   (a) It is the policy of this state that a state officer or state employee
                may not have a direct or indirect interest, including financial and
                other interests, or engage in a business transaction or professional
                activity, or incur any obligation of any nature that is in substantial
                conflict with the proper discharge of the officer’s or employee’s
                duties in the public interest.

Id. 8 572.001 (Vernon 1994). Section 572.052 prohibits legislators from representing clients before
state agencies in the executive branch of state government except as the statute provides. Id.
The Honorable       Eddie Lucia Jr. - Page 3            (GA-0087)




f~572.052(a).2 N o comparable provision expressly prohibits a legislator from representing clients
before governmental units other than state agencies. See id. 3 572.002( 10) (defining “state agency”
as an entity in the executive branch of government whose authority is not limited to a geographic
portion of the state); Op. Tex. Ethics Comm’n No. 155 (1993) (statutory predecessor of section
572.052 applies when legislator represents a person in a grievance proceeding before a public
university, but not a public junior college).

         Section 572.051 of the Government               Code imposes       certain additional      limits on a state
officer’s outside employment:

                   A state officer or employee should not:

                     (1) accept or solicit any gift, favor, or service that might reasonably
                   tend to influence the officer or employee in the discharge of official
                   duties or that the officer or employee knows or should know is being
                   offered with the intent to influence the officer’s or employee’s official
                   conduct;

                     (2) accept other employment or engage in a business or professional
                   activity that the officer or employee might reasonably expect would
                   require or induce the officer or employee to disclose confidential
                   information acquired by reason of the official position;

                    (3) accept other employment or compensation that could reasonably
                  be expected to impair the officer’s or employee’s independence of
                  judgment in the performance of the officer’s or employee’s official
                  duties;

                    (4) make personal investments that could reasonably be expected to
                  create a substantial conflict between the officer’s or employee’s
                  private interest and the public interest; or

                    (5) intentionally or knowingly solicit, accept, or agree to accept any
                  benefit for having exercised the officer’s or employee’s official
                  powers or performed the officer’s or employee’s official duties in
                  favor of another.

Id. 9 572.05 1. Moreover, section 572.053(a) provides that a legislator may not vote on a measure
or bill that directly benefits a specific business transaction of a business entity in which the legislator
has a controlling interest unless the bill or measure will affect an entire class of business entities.
Id. 9 572.053(a).


          ‘House Bill 1606, enacted by the 78th Legislature, amends section 572.052 by eliminating the primary statutory
basis for legislators to represent clients before state agencies. See Tex. H.B. 1606,§ 5.07,78th Leg., R.S. (2003). The
amendment to section 572.052 would apply to a legislator hired by a client on or after September 1,2003. Id. tj 5.10.
The Honorable     Eddie Lucia Jr. - Page 4            (GA-0087)




         None of these proscriptions in chapter 572, per se, would prohibit a legislator from
communicating to or dealing with a local or federal unit of government on a client’s behalf. See Op.
Tex. Ethics Comrn’n Nos. 205 (1994) (concerning legislator’s conversations or negotiations for
future employment by local government); 178 (1993) (concerning legislator’s representation of client
before metropolitan transit authority); 155 (1993) (concerning legislator’s representation of client
before junior college proceedings).3 Whether chapter 572 precludes a legislator’s employment for
a particular purpose depends on the facts of the particular case. See Tex. Att’y Gen. Op. Nos.
H-l 309 (1978) (while public officers and employees are not absolutely barred from working for
nonprofit organization, the facts of a particular case may prohibit such employment), H- 1304 (1978)
(whether a contract with a federal authority violates state ethical rules is a question of fact).

         Finally, a legislator should be aware of the provisions in chapter 36 of the Penal Code that
might bear on the legislator’s employment. Under section 36.08(f), a legislator may not solicit or
accept any benefit unless it falls within one of the exceptions recognized by the code. TEX. PEN.
CODE ANN. § 36.08(a)( 1) (V emon 2003). The primary exception for outside employment is section
36.1 O(a)(l), which allows a legislator to accept fair compensation for work performed in a capacity
other than as a public servant. Id. 5 36.1 O(a)( 1). The section’s exception for work performed in a
nonpublic capacity “means that it must be the services rendered and not the status of the public
servant rendering the services that is of value to the person for whom the services are performed.”
Op. Tex. Ethics Comm’n No. 416 (1999); see also TEX. PEN. CODE ANN. 5 36.07 (Vernon 2003)
(honorarium prohibition).       Moreover, a legislator may not solicit or accept “any benefit as
consideration for the recipient’s decision, opinion, recommendation,        vote, or other exercise of
discretion as a public servant, party official, or voter.” TEX. PEN. CODE ANN. 5 36.02(a) (Vernon
2003); see Cox v. State, 316 S.W.2d 891,893 (Tex. Crim. App. 1958). Whether a public servant’s
outside employment implicates the conflict of interest provisions of the Penal Code is generally a
fact-intensive inquiry. Compare Op. Tex. Ethics Comm’n Nos. 374 (1997) (while penal code does
not necessarily prohibit legislator from contracting with local housing authorities, it may prohibit
specific contracts), 3 5 8 (1993) (whether legislator may provide election support services depends
on the particular facts), with 123 (1993) (legislator may not accept payment from a city for lobbying
the state legislature).




         3The Texas Ethics Commission has jurisdiction to prepare a written opinion about the application of chapter
572 and other pertinent provisions “in regard to a specified existing or hypothetical factual situation.” TEX. GOV’TCODE
ANN. 9 571.091(a) (Vernon Supp. 2003).
The Honorable Eddie Lucia Jr. - Page 5         (GA-0087)




                                        SUMMARY

                        Constitutional and statutory standards of conduct for public
               officials do not categorically      prohibit a state legislator from
               representing a client’s interests before local and federal officials, and
               local governmental bodies.        Whether a particular transaction or
               communication would violate constitutional or statutory standards of
               conduct depends on the specific facts of the case.

                                               Very trqly yours,




                                               Attorney -1         of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
