Untitled Texas Attorney General Opinion ( 1975 )

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! 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