                      The Attorney              General of Texas
                                       November 28,       1979
MARKWHITE
AttorneyGeneral


                  Honorable Reagan V. Brown                 Opinion No. Mh’-9 0
                  Commissioner of Agriculture
                  Stephen P. Austin Building                Re: Whether a public official may
                  Austin, Texas 787ll                       receive an honorarium for deliver-
                                                            ing a speech.

                  Dear Mr. Brown:

                        You have asked if a public official may receive an honorarium. While
                  the term honorarium can have various meanings, Attorney General Opinion
                  II-551 (19751,in your question it is apparent that you are referring to fees for
                  speaking appearances.

                        There are essentially two barriers to the receipt of an honorariumby
                  public officials. These barriers are found in section 36.08, Penal Code, and
                  article 6252-9b, V.T.C.S. Both statutes must be satisfied before an
                  honorarium may be legally received. It is possible that in extreme Instances
                  receipt of an honorarium could also raise questions under sections 36.02
                  (bribery) or 36.07 (compensation of past official behavior) of the Penal Code.
                  Since these circumstances would fall far beyond the customary concept of
                  an honorarium, they are not encompassed within your inquiry and we need
                  not address them. See also Penal Code, S 36.09.

                        The initial barrier to receipt of an honorarium is found in section 36.08
                  of the Penal Code. It provides:
                                 .
                              S 36.08.

                                (a) A public servant in an agency performing
                             regulatory functions or conducting inspections or
                             investigations commits an offenses if he solicits,
                             accepts, or agrees to accept any pecuniary benefit
                             from a person tha public servant knows to be subject
                             to regulation, inspection, or investigation by the
                             public servant or his agency.

                               fbl A public servant in an agency having custody of
                             prisoners commits an offense if he solicits, accepts,
                             or agrees to accept any pecuniary benefit from a
                             person the public servant knows to be in his custody
                             or the custody of hi agency.



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Honorable Reagan V. Brown    -   Page Two     (Mw-90)



              (c) A public servant in an agency carrying on civil or criminal
           litigation on behalf of government commits an offense if he
           solicits, accepts, or agrees to accept any pecuniary benefit from a
           person against whom the public servant knows litigation is pending
           or contemplated by the public servant cr his agency.

             (d) A public servant who exercises discretion in connection with
           contracts, purchases, payments, claims, or other pecuniary tram+
           actions of government commits an offense if he solicits, accepts,
           or agrees to accept any pecuniary benefit from a person the public
           servant knows is interested in or likely to become interested in any
           contract, purchase, payment, claim, or transaction involving the
           exercise of his discretion.

              (e) A public servant who has judicial or administrativeauthority,
           who is employed by or in a tribunal having judicial or administra-
           tive authority, or who participates in the enforcement of the
           tribunal’s decision, commits an offense if he solicits, accepts, or
           agrees to accept any pecuniary benefit from a person the public
           servant knows is interested in or likely to become interested in any
           matter before tha public servant or tribunah

             ff) A public servant who is a member of or employed by the
           legislature or by an agenj of the legislature commits an offense if
           he solicits, accepts, Or agrees to accept any pecuniary benefit from
           any persoll.

             fg) An offense under this section is a Cla5 A misdemeanor.

       It is clear that a speaker’s fee would constitute a pecuniary benefit. Penal Code,
S 36.01(5). The only question would be whether the particular honorarium could be
received by that public servant. Each particular fact situation must be measured against
the requirements of this statute. The provision most likely to be relevant to most
officials is subsection (a) which prohibits a public servant from receiving a pecuniary
benefit from any person subject to regulation by his agency. Whether thii provision will
apply in a specific instance will depend on the duties of the public servant and on the
identity of the person who is paying the honorarium. Since the prohibition in subsection
(aI applies dy if the public servant has regulatory or investigatory authority over the
individual,a person might be able to offer an honorarium to one public servant but not to
another, depending cm the regulatory powers and duties of the public servant. Of course,
subsection (0 prohibits a legislator from receiving an honorarium from any person unless
an exception can be found in another section.

     If a particular honorarium is not covered by section 36.08, the Penal Code inquiry is
at an end. If, however, section 36.08 appears on its face to prohibit receipt of the
honorarium,section 36.lO of the Penal Code provides several exceptions which might act
to remove the honorariumfrom the prohibited category. Section 36.10provides in part:




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.,   ..       .



      Honorable Reagan V. Brown        -   Page Three     (Ml+90)



                      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:
                         (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
                      or for which ha gives legitimate consideration in a capacity other
                       than as a public servant;
                         (2) a gift or other benefit conferred on account of kinshipor a
                      personal, professional, or businessrelationship independent of the
                      official status of the recipient;
                         (3) an honorarium in consideration for legitimate services
                       rendered above and beyond official duties and responsibilities if:
                             (A) not more than one honorarium is received from the
                         same person in a calendar year; and
                             (B) not more than one honorariumis received for the same
                         service; and
                             (C) the value of the honorariumdoes not exceed $250;
                             (D) the honorarium, regardless of amount, is reported in the
                         financial ~statementfiled under Chapter 421, Acts of the 63rd
                         Legislature, 1973 (Article 6252-9)4 Vernon’s Texas Civil
                         Statutes), if the .recipient is required to file a fiicial
                         statement under that Act; and
                             (E) the benefit is used solely to defray the expenses that
                         accrue in the performance of duties or a&vities in connection
                         with tha office which are nonreimbursable by the state or
                         political subdivision;
                         (4) a benefit consisting of food, lodging, transportation, or
                       entertainment accepted as a guest and reported as required by
                       Iaw; . . .

             Although any one of the four portions of section 36.lO listed above will be sufficient
       to remove a fee from the ambit of section 36.08, the most likely to be applicable is
      .section 36.10(3) which refers specifically to honorariums. If section 36.10(3) is to be
       applicable, all five requirements numbered(A) through (E) must be satisfied.

                 The required use of an honorarium under section 36.10(3)(E) is identical to the
          defiiition of contribution in the Election Code. Elec. Code, art. 14.01(D). Accordingly an
          elected official or the Secretary of State should not accept honorariums from a
          corporation cc labor union when section 36.10(3) is the only applicable exception. Elec.
          Code arts. 14.01(B),(G), 14.06.

                Even if it is determined that a particular honorarium is not covered by the Penal
          Code, it still must be examined in light of article 6252-94 V.T.C.S. See e eciall SS1, 8.
          That statute prohibits a state officer from accepting, inter aha,    -    any      favor,
          compensationor employment that might reasonably tend to influence mm in the diiharge
          Of his official duties Bach situation must be measured on its unique facts, but certainly




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Honorable Reagan V. Brown -       Page Four   @lw-’ ’ 1



any honorariumoffered a public servant by a parson or industry which is regulated by the
public official will at least raise questions under article 625244 even if the honorariumis
not covered by the Penal Code.

      In summary, any public official who is offered an honorarium should examine the
following statutes:

           (11Penal Code S 36.08. This sets out six situations in which.receipt
           of an honorarium would be prohibited. Generally, the statute
           applies when the public servant has regulatory authority over the
           person offering the honorarium, but since the legality of any
           particular honorarium will depend on the identity of the person
           offering the honorariumand the duties of the public servant, all six
           provisions of section 36.08 should be consulted. A legislator is
           prohibited by section 36.08 from accepting an honorarium from any
           person.

           (21 Penal Code S 36.10. Section 36.10 provides exceptions to the
           offenses created by section 36.08. Thus, it is necessary to examine
           section 3610 only if section 36.08 otherwise would prohibit receipt
           of an honorarium. Legislators, for example, must always ba certain
           that they meet an exception set out in section 36.10. Since most
           persons will normally have to rely on the exception in section
           36.lOo(3l,any honorariumwould be limited to $250. When one relies
           on that exception ha may not accept an honorarium from a
           corporation or labor union. There is no need to consult section
           36.10 or to be limited to honorariums of $250 unlem section 36.08
           would otherwise be violated

           (31 V.T.C.S. art. 6252-N. Even if an honorarium is permissible
           under the Penal Code, it may still be prohibited under the ethics
           law. Basically, this statute prohibits receipt of an honorarium that
           might tend to influence the public servant in the exercise of his
           official duties It must be satisfied before any honorarium may ba
           accepted

                                     SUMMARY

           An honorarium offered a public official must be measured against
           chapter 36 of the Penal Code and article 6252-84 V.T.C.S. Before
           an honorarium may be legally accepted, it must satisfy the
           requirements of both statutes.



                                       /djijfm
                                            Attorney General of Texas




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Honorable Reagan V. Brown     -    Page Five      (Mh’w-9O)



JOHN W. PAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by C. Robert Heath
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

C. Robert Heath, Chairman
David B. Brooks
SusanGarrison
Rick Gilpin
Terry Goodman
William G Reid




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