        .




       The Honorable Herman Adams                Opinion No. H- 954
       Chairman
       House Committee on Elections              Re: Applicability of
       Texas House of Representatives            Penal Code § 36.10(5) and
       Austin, Texas  78701                      (6) to funds derived from
                                                 appreciation functions.

       Dear   Chairman Adams:

            You have requested our opinion regarding the application
       of section 36.10(5) and (6) of the Penal Code to contributions
.-     derived from functions held in honor or appreciation of
  --   members and employees of the Legislature.  Section 36.10
       provides in pertinent part:

                      Sections 36.07 (Compensation for Past
                   Official Behavior), 36.08 (Gift to Public
                   Servant), and 36.09 (Offering Gift to Public
                   Servant) of this code do not apply to:

                      .    .   .   .

                      (5) a benefit to a public servant required
                   to file a financial statement under . . .
                   (Article 6252-9b. Vernon's Texas Civil
                   Statutes), that is derived from a function
                   in honor or appreciation of the recipient if:

                               (A) the benefit and the source of any
                           benefit in excess of $20 is reported in
                           the financial statement; and

                               (B) the benefit is used solely to
                           defray the expenses that accrue in the
                           performance of duties or activities in
                           connection with the office which are non-
                           reimbursable by the state or political
                           subdivision.

                          (6) Subsection   (5) . . . does not apply to

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    (   -\.




              The Honorable      Herman Adams - page 2   (H-954)
                                         .


                              . . . [members and employees of the Legislature]
                              30 days prior to or during a regular session of
                              the Texas Legislature.

              Thus; subsections (5) and (6) of section 36.10 exempt public
              servants from liability under sections 36.07 and 36.08 for
              certain benefits received which are used solely to defray
              nonreimbursable expenses of office.   (The exemption also
              extends to section 36.09, which applies to persons who
              confer benefits on public servants who are prohibited from
              accepting such benefits.)   Sections 36.07 and 36.08 provide
              that a public servant commits an offense if he "solicits,
              accepts, or agrees to accept any pecuniary benefit" under
              certain circumstances.   Penal Code 99 36.07(b) and 36.08(a).

                    "Pecuniary benefit"      is defined by section 36.01(5) of
              .the Penal Code as:

                              money, property, commercial interests, or
        ...~              .   other similar benefit the primary signifi-
          -.                  cance of which is economic gain; --
                                                                but does
                              not include contributions made and re orted
                              inaccordance
                              -             with +.     (Emphasis
                                                         --Yf--T- a ded

              A public servant cannot, therefore, commit an offense under
              sections 36.07 or 36.08 by soliciting or accepting a contribu-
              tion reported in accordance with law. Contributions which
              must be reported include anything of value given to a
              candidate or political committee for use in an election, or
              given'to an office holder for the purpose of assisting the
              office holder in the performance of duties or activities in
              connection with the office by defraying nonreimbursable
              expenses.   Election Code art. 14.01(D).  It appears, therefore,
              that the funds about which you are concerned may be contribu-
              tions which must be reported in accordance with article
              14.07 of the Election Code.   If properly reported, such
              contributions do not constitute a "pecuniary benefit" for
              which liability may attach under sections 36.07 and 36.08 of
              the Penal Code.

                                         SUMMARY

                              Contributions for election expenses or
                              nonreimbursable office expenses do not




                                              P. 3983
The Honorable   Herman Adams - page 3   (H-954)



            constitute "pecuniary benefits" if
            legally reported as contributions under
            the Election Code. Such contributions are
            not therefore within the scope of sections
            36.07 and 36.08 of the Penal Code.
   .
                                Very truly yours,




                                Attorney' General of Texas

APPROVED:




                      rst Assistant




Opinion Committee

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