Untitled Texas Attorney General Opinion ( 1974 )

THE AITORN,EY GENERAL OF -XAS A``~N.T~AN 7t37ll April 2, 1974 The Honorable Ron Clower Opinion No. H- 269 State Senator Rc:~ Filing requirements of 1 Texas State Senate Section 4 of Article 6252-9b Auetin, Texas Vernon’s Tews Civil Statutes The Honorable Mark W. White, .Jr. I Secretary of State Capitol Buil’ding Austin, Texas 78711 Dear Secretary White~ind Senator Glower: Article 6252=9b, Vernon!8 Texas Civil Statutes, the 1973 Ethics Act, requires the filfigcb sfinancial statement by certain state officiafr. designated ! in Sec. 3. Section 4 (a) provides that it ib to include: ‘1.’ . . the account of the financial activity of the perron required to file the otatement by this Act and the financial activity ‘of his spouse and dependent children over which he had actual control for the prec~eding calendar year as herein- after provided. ” Secretary White has asked whether a husband, who is required to file a financial statement, must report the financial activities of his wife’s separate property over which he had no actual control during the preceding calendar year. ‘, Senator Glower has requested our interpretation of Sec. 4 (c) (1) of the Act which requires the report to indude: p. 1260 . The Honorable Ron Clower The Honorable Mark W. White, Jr. page 2 (H-269) . ‘1. . Identification of any person, business . entity, or othc- organization from whom the perron or a busine,ss in which he has a substantial interest received a fee an a ~retainer for a claim on future services in case bf need-(id opposed to.a fer:for . services on a matter specified at the time of contracting for or receiving the fee), whenever professional or occupational services Were not actually performed during the reporting period. commensurate to or in excess of the amount of the retainer, and the category of the amount of the fee;” Article 6252-9b. V. T. C. S. , was enacted as House Bill 1 of the 63rd Legislature (Acts 1973, 63rd Leg., ch. 421, p,. 1086) and was the. first of ten bills comprising .the reform.package offered by the leadership of the House of Representatives. Section 1 of the Act, declaring the policy of the State, rtater that no state officer or employee shali,have any financial interest or engage in any busmese transaction or professional activity “which is in substantial conflict” with the dincharge of his duties. The Act, then, requires dir- closure of financial affairs by some state officers (Sec. 3) and a disclosure of interests in regulated businesses by thore’not required to file the financial’ statement (Sec. 5); it requirea disclosure by a board or commission member of private interests in matters before his board or. commission (Sec. 6); it prohibits certain acts by members of the Legislature (Sec. 7);,and it provides standards of conduct~for state officers and employees (Sec. 8). The Act was +ntended and designed to be c,omprehensive in its requirement that any private interests of decision maker.8 be disclomed 2 and made public to lessen the temptation to place personal gain over public duty. Section 4 specifies the information to be included in, the financial statement. Section 4 (a) could be read to require’ inclusion of financial p. 1261 *I . w The Honorable Mark W. White, Jr. The Honorable Ron Clower Page 3 (H-269) acttvity.of the official’s spouse and dependent’children over whom he had actual control or, alternatively, to require disclosure only whane had actwl control over the, financial activity itsdf. In the former interpret%tio.: there might be many situations in’which the official would have none of the required information and no ready means to acquire it. Our laws incraasingly recognize the right of each spoure to have the “sole management, control, and disposition of his or her separate property. ” Section 5.21. Vernon’s Texas Family Code; If “actual control” refers to the spouse (a doubtful situation,~ at best) or to the dependent children, the section would requires the reporting of facts which well might+ considered “no ~buriness” of the official. On the other hand, if “actual control” refers to the financial activity (grammatically more correct than the firrt alternativeJ;then the registrant has, only ‘to report on financial activities over which he has control and of which he haa knowledge, ‘a fat more r~easonable interpretation. We are of the opinion, therefore, that Section 4 requtrem a rogirtrant to report’on his.own financtal activities atid on those activities of his voam .’ or children over which activitier he exercises or has, the right to exercise control. Parenthetically, weirdo not interpret the Act to require “exclusive” control - it is rufficient that the registrant exercises any .degree of control, legal or factual. Section 4 (c) (1) requires a listing of1all source8 of 0,ccupational income including retainers “for a claim on future services in case of need’! when such services have not been perform&during the reporting period. Retainers pa’id’as a claim on,future services, for which no servicer are actually performed concurreqtly, are keither’unconjtion nor unethical per Be. See 1 Speiser., .Attorneys’ Fees, (1973). Chapter 1; “Retainer Contracts”; MacKinnon, Contingent Fees for Legal Services, ‘(1964)’ pp. 20-21. So Long,as the retainer is paid in good faith.for,.service’s to be rendered~or, at leaat, for’s holding ready to .rqnder.such servic.ea, .suah a fee iok well recog&ed mz&ir of employing l&gal counsel. ..On thi other hand, if them is,rio bona fide Anticipation of the rendition of s,ervicer and the fee ispaid to purchase influence it ‘may constitute ,a’violation .of Chapter 36 of the .Penal Code. .’ ,. ,’ r .p:‘1262 : ,, .,. The Honorable Mark W. White, Jr. The Honorable Ron Clower page 4 (H-269) We construe Sec. 4 (c) (1) to require disclosure of retainer feei paid to the registrant or any other business entity in which he has a substantial. business interest where, at the time of payment of the fee, servicer commensurate with the fe,e had not been rendered. SUMMARY The financial statement required by Sec. 3 of Article 6252-9b, V. T. C. S. , should include a statement of financial activItie.s in property of the r’egistrant’s spouse and children where the registrant exerciees actual control ‘:bver ouch activities. lt should alro include, as a source of occupational income, a statement of any retainer fee received by the registrant or a business entity in which he has a substantial interest and for which no servicer have been rendered. Very truly yours, u JOHN ,L. HILL Attorney General of Texas Opinion Committee p. 1263