Untitled Texas Attorney General Opinion ( 1974 )

, May 21, 1974 The Honorable David Finney, Chairman Opinion No. H- 311 State Affaira Committee House of Representatives Re: Questions concerning activi- Aurtin, Texas 70767 ties report required by Houee Bill 2, b3rd. Leg., Article 6252-9~. V. T. C. S. Dear Representative Finney: On behalf of the State Affairs Committee of the Houre of Repreeenta- tivee you have eubmitted to ue two questions concerning Houee Bill 2 af the 63rd. Legirlature (Acte 1973, 63rd Leg., ch. 422, p. ,1096) incorporatad into Vernon’s Texas Civil Statutes as Article 6252-9~. Your firrt question aeke: “h&y the entity covered in Section 3 (a)(l) designate ite employed legislative representative or lobbyist as ite agent and authorize the agent to file its registration pursuant to Section 5 of the Act and to compile and file ite activity report as required by Section 6 of the Act? ” The cited section of the statute i6: “Sec. 3. (a) The following persone must register with the secretary as provided in Section 5 of this Act: (1) a person who makes a total expenditure in excess of $200 in a calendar quarter, not including his own travel, food, or lodging expenses, or his own memberehip duea, for communicating directly with one or more members of the legielative or executive branch p* 1437. Y The Honorable David Finney pagc~ 2 (H-311) to influence legislation; . . .” Section 2 (1) of the statute defines “person” to include not only individuals, but also corporations, associations, firms, partnerships, committees, clubs~and “other organizations or groups of persone who are voluntarily acting in concert. ” , Sections 5 and 6, covering registration under the Aet and the activi- ties reports, ,provides m part: “Sec. 5. (a) Every person required to register under Section 3 of this Act shall file a regietration form with the secretary within five days after the first undertaking, requiring regtrtration except as otherwise provided herein. (b) The registration shall be written, verified, and shall domain the following information: (c) Each person who made expenditures on behalf of a r.egistrant that are required to be reported by Subsection (b),of this section or who has other informa- tion requi,red to be reported by the registrant under this section or Section 5 shall provide a full, verified account of his expenditures to the regietrant at least seven days before the registrant’s report is due to be filed. “Sec. 6. (a) Every person registered under Section 5 of this Act shall file with the secretary a report concerning the activities set out in Subsection (b) of this section. The report must,be filed: (1) between the 1st and 10th day of each month subsequent to a month in which the legislature is in session covering the activities during the previous month; and p. 1438 The Honorable David Finney page 3 (H-311) :~ (2) between the 1st and 10th day of each month immediately eubeequent to the last month in a calendar quarter covering the activities dud ng the previoue quarter. (b) The r,eport shall be,written, verified, and ~. contain the :,following information: . . . (c) If a registrant’s activities are done on behalf of the members of a group other than a corporation, the registration form ehall include a etatement of the number of members of the group and .afull description of the methods by which the regirtrant develop8 and makee decisione about poeitionr on policy. ‘, (d) A registrant shall file a supplemental regietra- ~8..tion indicating any change in the information contained in the rsg~mtration within.10 days,after the date of the ,‘chrnge; ” Both 5 5 and.$ 6~require, ~respectively, that ,the ra&tration and the report whioh they require be “written; verified, and; contaid’ ,certain ,in- formation. 5 0 .directr the Secretary of State to design and provide appropriate forms. Unless we take the view that the requirement of verification was intended to mean that only the registrmt could sign the reporte, nowhere do,es the Act require that either the 5 5 registration or the 9 6 activity report be prepared, signed or filed by any particu)ar person, and we answer your first queetion, that,any person covered by 8 3 (a)(l), may authorize its employed legislative representative or lobbyist to act in its behalf and to file the registration or report which it is required to file, provided the authorization ir bona fide and is not made to avoid, r~esponeibility under the Act. However, the entity required to file will remain liable for penalties and will be in violation of criminal laws for non-compliance with the statute. p. 1439 The Honorable David Finney page 4 (D-311) Section 9 of the Act, makesfacriminal offense to violate any provision of the Act. Regardlear of who actually prepares, verifies.or files the report, the registrant is responsible for the performance of those acts and if the report filed on behalf of a registrant does not contain all the information required by either $ 5 or $ 6, the registrant, by $ 9, is made guilty of a misdemeanor and subject to monetary penaltien in three times the amount of compensation or reimbursement received or expenditure made. Your second,quertion asks: tlCk the registrant be required under penalty mf law to,report expenditures by non-registrants of which he ie unaware and could not through diligmnt effort discover? ” Among the expenditures a registrant is required to report under $ 6 of the Act are expenditures “made by others on behalf of’the registrant for those direct communications if the expenditures were made with his express or implied consent or were ratified by him, . . ” Section 6 (b)(l). You note in your letter. that a lobbyist might urge members of an associa- tion to contact members of the Legislature, and yet have no knowledge of and l.ittle possibility of.discovering whether they have so acted or what expenditures they have made, even though the lobbyist employs due diligence. While the Lobby Act does not prescribe a culpable mental state in regard to a violation of $ 6, ,tht Penal Code requires one “unless the definition plainly dispenses with any mental element. ” Sec. 6.02 (b), V. T. P. C. When the definition is merely silent as to the mental state, Subsection 6.02(b) presumes that one is required and Subsection 6.02 (c) requires that it amount at least to recklessness. A person acts recklessly when “he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist p. 1440 ,~j .I ::. The Honorable David Finn& 'pa&e 5 (H-311) or the result will occur. ‘I Rechlessness requires a “gross devifrtion,from the standard of care that an ordinary person would exercise. ” Sec. 6. d3 (c), V. T. P. C. Thus, if the rcgintrant has exercised reasonable diligence to determine expenditures made by others on his behalf and cannot ‘difyver any fa.cts to report, we do not believe he could be guilty of the defir@ crime. SUMMARY A “person”, as defined in Art. 6252-9`` .Vi T.&S, : . who malcee a total expenditure in excess of $200 in ‘a .,. calendar quarter for communicating directly witha member of the legislative branch to influence legiela- tion may designate its employed legislative rwrementa- tive or lobbyist to prepare, verify and fi&e the requtred registration and activity reports, but the psrron required to file under either 8 5 or 8 6 of .the Act will remain civilly and criminally liable for compliance with those sections of the statute. A registrant under the Act who cannot, through diligent effort, discover expenditures made by others on his behalf, may be excused,for a failure to report them. very truly your*, JOHN L. HILL Attorney General of Texas p. 1441 The Honoiable David Finneg page 6 (~-311) APP#?QVjD: DAVID M. KENDALL, ‘Chairman Opinion Comznittee p. 1442