                        THE        ATroRNRY               GENERAL
                                       OFTESS3
                                    A-IV.      -         rerll
   JOEN     L   alxa
*--
                                            May 22. 1975


                                                   ,’
           The Honorable Bill Clayton                        C&rio,   No. H- 614
           Speaker of the Houra
           of Repre8entaWvep                                 Re: Effect of.8 legiAtor’8
           State Capitol Building                            doing legal work,for a special
           Au&in. Tena 78767                                 iptere8t group ?nd, nubeequently
                            ..                               8ponooring legi8ktion affecting
           Dear Speaker Clayton:                             that group.. :

               You have 88kFd t$+t we coneider 8everal gue8c?e      $yolviw         a legi8lator’s
           performing lega$Grk     for an int!<ut   group:a?d hi8’rubseque?t        spon8orahip
           of legislation in which the group wa8 interested;

                The queetiqno all r$+b   e a,,?a+icular 8it+ion     wht~h ha? been described
           to xl*. A ma+er.‘of;$w    :Heqe of,Repr:yn~iijjy      y$;;f*,,~ kyer    was
           llpproached hy ia ri&tidon     wit6 8 requeit‘.that he.pr+p+e + memorandum
           for the 8eeoclation outlining the current Texa8 la& con&&         ; particular
,..     5:; .~~r~~:...Tbc.Icgi*~~r.;~eTforprad       the nye!*+yy, $i&.,r.ca+ch       a$ defivered
      i ..   t&e mepi&ay;drmr     ~na;~~b&~,:,1915.    ~A~tpsusb::~~~ !egio,l@?r, ha8  not yet sub-
             mitted a biti’for hi8‘iegai6&k      in preparing &e mom?r+*,           it.is the’type
             of work for which attorney8 customarily charge a fee.




            x--i-     ~~~*~~.~id;~       .            ~~~ci#~~,y?$p!t     I+=?    .*t meetiting
            although he wa8~a+vaie tht they were rnamber~,:of,~rr8octHon.                 The legia-
            later advises h8 that he dealt with these person6 a8 individual6 and not aa
            memberr of the organiution.         These individuals a8ked the legislator to draft
            legislation reagonsive to problem8 they perceived in regard to the matter.
            The legtelatioa w+regud+af:           f fqmponry ,m?amu-s ipbn$ng an in-depth 8tndy
            and comprqh+&j         ,~e~~~n?jor,~taa.~~licrb~?~~r.        !Kbe 1egWator studied the
                         l
            8ubJect and g,r,eed,tol@afband~qpo~o~         ,ih~:r?g.++ tt:-
                                                                        o+:.,~.
                                                                             “~You i,ndiute that he
            did not and doea not expect to receive any benefit? fl*ng           from hi8 meeting,
            or from hi8 8ponrorrhip of the legislation.




                                               p. 2n0
         The Honorable      Bill   Clayton,     page    2




               Your questions      relating    to thin situation     can be clummarized         as follows:

                  (1) Since the legislator  introduced  the legislation
                  will there be a violation of the Penal Code if he
                  acceptr a legal fee for hie work in preparing     the
                  memorandum     on the same subject?

                  (2) If the legislator    had not introduced the bill
                  would there have been a violation of the Penal
                  Code ‘tf’the ‘legislator   had submitted his fee to
                  the’aclaociation   for his legal work in preparing
                  the memdianduni?

                  (3) .Dobe sponsorohip’of    ‘the’btll after having pre-
                  pared thi‘legal ~adirlysib’violate    article 6252-9b,
                                                              c
                  V.T.C.S.?

                   (4)   Doh&“any potential       violation     of article    6252-9b
                  depeiid’oti&he&er           payment       &as received     for   the
                  iegaf-&&&r7


             Pbtential’viol&ons     of~tbe Penal Code on the’part                   of the legislator would be
         found iri’&ap‘ter 36 ‘of the Penal Code.   S&ti~n  36.02                   of the Penal Code relates
         to bribery   and providee:

                           (b) A public servant or party official       commito
                   ” ,an iaff&ii&~if he kf+n&gly     solictts,“accepts,     or’agrteo
i ,.
                ! to aiii&it"hy        ‘beti&fWonthe   representation     or under-
             ,. ‘.
                     &&idi%g ‘tbat’he i&D be influedced Wa          bpecific &er-
                    &eiof’h’i~      bf&‘irl.p&vCrs   or a spedifi& performance
                     ofbi’ii.&fic&i     &tie&      7


                   ...
        -s.:            ~.(d)a Ah’offense   u,nd+r,this eection is a felony of
           I. I   ’ the thlrd’degree     \inlenb committed under Subiection               (b)
       >li’         ‘of tliii se&ion;~‘~n aih?tih event’% ia a felony~of the
                    clecond degree.




                                                   p. 2719
’   ,




        The Honorable     Bill Clayton,      page 3




             There is no violation of section 36.02 by a legicrlator unlers there is a
        representation    or understanding  that he will be influenced in a specific
        uerciae    of hi8 official powers.  &     Attorney General  Opinion H-265 (1974).
        You have not 8tated in your facN       rituation that there was ouch a represent-
        ation or understanding.     Absent proof of this element,   no violation of sec-
        tion 36.02 could be established.
                       ,.


            Section   36.08   of the Penal    Code provides   in part:

                     (f) A public servant who is a member       of or
                employed by the legislature      or by an agency of the
                legislature   commits an offense if he solicit‘,
                accept8,    or agrees   to accept any benefit from a
                person the public servant knows i8 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.

             To establish  this offense it is not necessary      to demonstrate      that  there
        was a representation     or understanding     that the legislator   would be influenced
        in a specific utercise     of his official duties.   The offense could be ecrtablished
        itit could be proved to a finder of fact beyond a reasonable            doubt that (1) the
        a88ociation was interested       in any matter pending before or contemplated            by
        the Legislature,    (2)   the legislator   knew that fact,(3)    he solicited,    accepted
         or agreed to accept a benefit from the aecrociation,         and (4) any facts consti-
        tuting an asserted    defense are found not to exist. Allfour         factors would have
         to be proved before a conviction could be returned.

             The issue of a defense is submitted only if the defendant offer8 evidence
        to support it. ,However,   once evidence is offered   supporting the defense the
        prosecutor    mu& negate it. beyond a reasonable   doubt or the defendant must
        be acquitted.   Penal Code,   5 2.03.

            A defense    to a section 36.08 prosecution       i8 found in section   36.10 of the
        Penal Code.      Section 36.10 provides  in part      that:




                                              p. 2720
The    Honorable        Bill   Clayton,    page 4




            It is a defense 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) af.&im code 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:

      The commentary      to section      36.10 explains   this defense:

             Subdivision     ( 1) exempts fees prescribed          by law and
         compensation      earned by the recipient in an unofficial
         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             inter-
         est in his official acts can be handled more appropriately’
         by comprehensive        conflict-of-interest       statutes than by
         criminal   sanctions.      See. e.g.,      R. C.S.    art. 6252-9b.
         Practice   Commentary,         Vernon’s     Annotated Penal Code,
         $36.10 at 27-28.

     Thus, if evidence were offered that any benefit received was a legitimate
professional   fee, .then a prosecutor    would have tocnegate that assertion
beyond a reasonable      doubt. before a conviction could be returned under section
~36.1% SeeCAt.torney Gene-1         Opinion H-551. (1975). This defense does not apply
to a prosecution    under section.36.0.2.

    In the situation you outline,~ before a violation of section 36.02 can be
established   one of the factors which must be demonstrated         beyond a reasonable
doubt,is that ~tbere was a representation.or     understanding    that the legislator
would be influenced in a specific     exercise  of his official  duties.   In the case
you describe,    a violation of 36..08 could not be established    unless,   among other
factors,   the prosecutor   could establish~beyond    a reasonable    doubt that any
benefit solicited.   accepted or agreed to be accepted by the legislator        was not
a legitimate   professional   fee..




                                          p. 2721
    I

.       ’


                                    I




            The Honorable    Bill   Clayton,   page   5




                 Your third question asks if the legislator’s   mponsorship of the bill
            after he prepared   the legal analymim violated article  6252-9b.  V. T. C. S.,
            which relatam to the conduct of .&ate officers    and employees.    Its purpose
            is set out in section 1 of the article which provides:



                         Section 1. It is the policy of the State of Texas
                    that no state officer or state employee         shall have any
                    interest,   financial or otherwise,      direct or indirect,
                    or engage in any business transaction          or professional
                    activity or incur any obligation       of any nature which is
                    in substantial   conflict with the proper discharge        of his
                    duties in the public interest.       To implement      this policy
                    and to strengthen the faith and confidence         of the people
                    of Texas in their state government,          there are pro-
                     vided standards     of conduct and disclosure      requirements
                    to be observed     by persons owing a responsibility        to the
                    people of Texas and the gover-            t of the State of
                     Texas in the performance       of their official duties.      It is
                     the intent of the legislature    that this Act shall serve
                     not only as a guide for official     conduct of these covered
                     persons but also as a basis for discipline         of those who
                     refuse to abide by its terms.



                 The major portion of.the.article         requires   filing of certain financial
            information     so that the citizenry will be aware of a public official’s         financial
            interests and can assess him official         conduct ia light of those interests.       There
            are only three ~mections .of the article which provide penalties.             Section 6
            provides    for ,removal from office for certain violations           but does not apply to
            members      of theilegislature.       Section 7 provides      a misdemeanor    penalty for
            legislators    who, in certain circumstances,          represent    a person before an
            executive agency.        Section 10 provides      a penalty for failure to comply with the
            filing requirements       of; the Act.   Thus , none of the mpeciflc penalties provided
            in the article    are applicable     in the situation you pose.




                                                 p. 2722
The Honorable      Bill       Clayton,           page 6




        However,   section 8 of article 6252-9b does establish  certain standards
of conduct for state officers and employees.   Section 8 provides in part:

                        Sec. 8.. (a) No state officer or state employee
                   should accept .or eolioit any gift, .favor, or service
                   that might reasonably      tend to influence him~in the
                   discharge   of him official duties or that he knows or
                   should know is being offered him with the intent to
                   influence him official conduct.         .’

                          .   .    .   .


                        (c) No.state  officer or state employee should
                   accept other employment or compensation           which could
                   reasonably    be expected to impair him independence      of
                   judgment in the,performance      ,of his official duties.

        While     section         1 indicates:

                        . it is the intent of the legislature~that this Act
                   shalLserve     not only~as a guide for official conduct
                  ,of theaicovered      persons but also as a basis for
                  discipline    of those who refuse to abide by its terms

there are no specific             penalties        for “violation”   of the guidelines   established
in section 8.

    ~.~ Article    3;, section             Il.   ofithe Constitutionprovides:
       i
                      .~Each House.may     determine  the rules:of its own
                   proceedings,    punimh~members    for disorderly   con-
                   duct, and, with the conaent~ of two-thirds,     ~expel a
                   member,     but not a second time for the same offense.

In construing    thisprovision    of the Constitution the Texas Court of Criminal
Appalm~maid     in Ex oarte Youngblood, ~251S. W. 509, 510 (Tex. Crim. 1923).
that this article   of then Constitution could Abe dtilieedifor  an inquiry concerning
conflict of interest type allegations     affecting legislation.  -See Tex. Const. art. 3,
0 11.

        Accordingly,   the House of Representatives    appears   to be the appropriate
body to determine    whether a transgression  of section 8 of article   6252-9b by a
House member has occurred.        Of course. whether   any  violation  has occurred
is a question of fact.
                                                     p. 2723
 ,
I’   .




         The Honorable      Bill   Clayton,     page    7




             Your fourth question concerns the effect of failure to collect the legal
         fee on any potential violation of article 6252-9b.  That, too, involves
         resolution of factual issues and cannot be addressed   in the opinion process.

                                       SUMMARY

                         In order to convict a legislator    of a bribery  offense
                    under 36.02,    Penal Code, it must be shown that there
                    was a representation    or understanding     that he would be
                    influenced in a specific exercise     of his official duties.

                         If a benefit was a legitimate   professional         fee an
                    offense cannot be established     under section          36.08,
                    Penal Code.

                         The appropriate    body to pursue questions of non-penal
                    violations of standards involving the action of a member
                    of the Legislature   is. the House of which he is a member.
                    Whether any violation has occurred      is a question of fact
                    which cannot be resolved in the opinion process      of the
                    Attorney General.

                                                             Very   truly yours,




         APPROVED:



         --b%hyh
         DAVID      M.   KENDALL,       First    Assistant




          Opinion    Committee




                                                       p. 2724
