                              March 21. 1975


The Honorable Mark W. White,         Jr.        Opinion No. H- 561
Secretary of State
Capitol Building                                Re:   Whether a contribution to
Austin, Texas 78711                                   a candidate which is pledged
                                                      and received after the elec-
                                                      tion is a prohibited gift to a
Dear Secretary       White:                           public servant

    You have requested our opinion concerning Chapter 36 of the Penal Code.
Specifically, you ask whether the defense provided in section 36.10(4) is
applicable to campaign contributions made after an election.

   Sectton 36.10 provides in part:

            It is a defenre to prosecution under Section
       36.07 (Compensation for Past Official Behavior),
       36.08 (Gift to Public Servant), or 36.09 (Offering
       Gift to Public Servant) of this code that the bene-
       fit involved was:

                 .    .   .


                     (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 Election Code in article 14.08(h)(l)(iii), (h)(3) and (h)(5) contemplates
post election contributions and provides for thetr reporting.

    In our opinion, the Legislature intended to provide a defense to sections
36.07.  36.08 and 36.09 for campaign contributions which relate to a specific
campaign.


                                           p. 2525
The Honorable Mark W. White.     Jr.,     page 2 (H-566)



     Since the election laws provide for the reporting of post-election contri-
butions. especially in the common instance of a campaign deficit, we believe
it to be clear that section 36.10(4) was intended to allow such contributions.
Accordingly,   it is our opinion that the language “when he is a candidate”
modifies the word “campaign” as contained in section 36.10(4), and merely
limits the defense to contributions to a specific campaign, whether they be
made before or after the election.

                             SUMMARY

           Section 36.10(4) of the Penal Code provides a defense
       for campaign contributions which relate to a specific
       campaign. whether they be made before or after the election.

                                          Very truly yours.




                                          Attorney General of Texas

APPROVED:




DAVID M. KENDALL,       First Assistant




Opinion Committee




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