Untitled Texas Attorney General Opinion

THSC ATHBRNEY GENERAL
OF TEXAS
AUNTIN. TRXAO 76711
March 22, 1974
The Honorable Robert 0. Smith OpinionNo. H- 265
District Attorney
Travis County Courthouse Re: Interrelationship of
Austin, Texar Sectiona 36.02 (a) and
(b) of the Penal Code and
Article 6252-9~. The
Dear Mr. Smith: Lobby Control Act.
Your letter requesting our opinion requires an interpretation
of Article 36.02 of the new Penal Code. entitled “Btibery” in con-
junction with the Lobby Control Act (Article 6252-9c, V. T. C. S. ).
Section 36.02 of the new Penal Code.providea:
“(a) A person commits an offense if he offers,
confers, or agrees to confer any benefit on a
public servant, party, official. or voter:
“(1) with intent to influence the.
public aervnnt or party official in a
rpecific exercise of hir official powere
or a specific performance of hi8 official
duties: or
“(2) with intent to influence the voter
not to vote or to vote in a particular manner.
“lb) A public servant or party official commit8
an offenre if he knowingly solicito, accepts, or agrees
to accept any benefit on the repre.sentation or under-
standing that he will be influenced in a specific
exercise of his official powers or a specific performance
of him official dutiecr.
p. 1237
The Honorablr Robert 0. Smith, pago 2 (H-268)
.
“(c) A voter commite an ofienre if he knowingly
rcceptr or agree8 to accept any bemflt on the rep-
rerentation or understanding that he will not vote
or will vote in a particular manner.
l’(d) An offenee under thin section is a felony
of the third degree unleea committed under Sub-
rection (b) of thir rection. in which event it ir a
felony of the second degree. ‘I
The Penal Code provider &t Section 1.07 (a) (6) that:
“(a) ln thie code:
. . .
“(6) ‘Benefit’ means anything reasonably
regarded ae iconomie gain or advantage, in-
cluding benefit to any other person in whore
welfare the bene5ciary ia intererted. ‘I
You que&ion the kct that, apparently, the briber ir guilty of the
crime if he “offers, confera, or agreea to confer” a benefit with
the fntant to influence the recipient while the recipient. under ‘S&
lectione (b) and (c), qprently commitr the offenee only if he lctr
“on the roprerentatlon or underetandings~ that he will be influqpced.
You l*te in your letter th8t, in your opinion, a I’representation
or underrtanding” ir a required element of the offense of bribery
under Sec. 36.02(a) or elre the Lobby Control Act ir unconrtitutional.
Both the Lobby Control Act and the Penal Code’r Bribery Chapter
murt be read in the light of the citizen’r con&tutionally protected
right to petition hir government. See generally, U.S. v. Harrier,
34% U.S. 612 (1953). H-18 (1973). Of course, the conrtitutionel right
of pbtition har never been construed to include a right to commtt
the crime of bribery.
Bribery ir defined iB Article 16, Sec. 41 of the Teaua Conrtitution:
p. 1238
. .
. .
The Honorable Robert 0. Smith, page 3 (H-265)
“Any perron who rho11 . . . offer, give, or promire.
any money or thing of value , , , to any executive or
judicial officer or member of the Legirlature to influence
him. . . shall be guilty of bribery. . . . And any
member of the Legirlature or executive or judicial
officer who rhall rolicit, demand or receive . . . any
money, appointment, . . . thing of value or employ-
men&.; ‘for hir vote or official influance, , . . or with
any understanding expreraed or implied, that hir
vote or official action rhall be in any way influenced
thereby. . . shall be held guilty of bribery, . . . ”
Purruant to conrtitutional mandate, the Legirlature, in 1858, adoptedArti-
cleg.l58.and:I59, Tek’ia~MCode: &&at the?liind’of thadr’~‘i61973,pr’o~dad:
Article 158
“Whoever rhall bribe or offer to bribe any execu-
tive, legirlative or judicial offlcer after hir election
or appointment, and either before or after he rhall
have qualified or entered upon the dutier of him
office, or any perron employed by or acting for or
on bbhalf of the State of Texan, any board, commir-
#ion, agency, or department thereof, any county,
rchool dirtrict, city or town, or any political
aubdivirion or municipal corporation whatsoever,
with intent to influence his act, vote, decision,
judgment or recommazdation on any mtter, question,
cause, contract or proceeding which may be then
pending, or which may thereafter be brought or come
before ruch perron in hir official capacity, or in him
place, agency or porition of employment, or do any
other act or omit to do any other act in violation of hir
duty am an officer, or am much employee or agent,
rhall be guilty of bribery and rhall be confined in the
penitentiary not lerr than two nor more than five
year,, or be confined in jail for not lerr than one
month nor more than two yeara, or be fined not lera .’
than Five ‘Hundred Dollarr nor more than Five
Thousand Dollarr, or by both much firm and impriron-
ment. I’
p. 1239
The Honorable Robert 0. Smith, page 4 (H-265)
Article 159
“Any legir,lative, executive or judicial officer,
or any employee or agent, or perron holding a
position of honor, trurt or profit with, or any
peraon acting for or on behalf of, the State of Texas,
any board, commission, agency or department
thereof, any county, school dietrict, city or town,
or any political subdivision or municipal corpor-
ation whatsoever, who &all accept a bribe, or
agree or consent to accept a bribe under an
agreement or with an understanding that his act,
vote, recommendation, opinion or judgment shall
be done, influenced or given in any particular
manner, or upon a particular aide of any
question, matter, contract, cause or proceeding
which ia or may thereafter be pending, or which
may be brought or come before him in hi8 offi-
cial capacity, or in his place, agency or position
of employment, or in’liis position of honor, trust
or profit, or that he shall make any particular
nomination or appointment, or shall do any other
act, or omit to do any act, in violation of his duty
as an officer, or hia posifi’on. agency or employ-
ment shall be‘guilty of bribery and Bhall be
punished as is provided in Section 1 of this Act;
or any such person who shall ask, solicit or offer
to accept a bribe with the intent or for the purpose
of influencing his act, decision, vote, opinion
or recommendation, on any question, matter,
nomination, cause, proceeding or contract which
may at any time be pending, or which may be
brought or come before him in hir official capa-
city, or in hir employment, agency or place or
position of honor, trust or profit rhall be guilty
of bribery and rhall be confined in tha .penitentiary
not leas than two nor more than ten yearn, or be
confined in jail for not leer than one month nor
more than two years, or be fined not lenr than Five
Hundred Dollar8 nor more than Five Thourand Dollarr,
or by both such fine and imprisonment. ”
p. 1240
The Honorable Robert 0. Smith, page 5 (H-265)
Both of these articles were repealed by the enactment of the 1973
Penal Code [Acts 1973. 63rd Leg., ch. 399, sec. 3(a)].
It is our opinion that the requirements of Articles 158 and 159
were substantially the same as those of the Constitution and those
of Sec. 36.02 of the new Penal Code. In our opinion, Sec. 36.02,
does not create a new crime but msrely restates the law of bribery.
Obviously, since it has been in effect only since January lrt of this
year, there have been no reported decisions construing Sec. 36.02.
However, early in the history of our state it was determined that,
as to the briber, the ci-ime of bribery was complete when the wrong-
ful offer was made. Goldsberrv v. State, 242 S.W. 221 (Tex. Grim.
1922). And Sowells v. State, 270 S.W. 558 (Tex. Grim. 1925) holding
that the intent of the recipient of the bribe is of no consequence in
determining the guilt of the briber. It ir our opinion, therefore,
that Sec. 36.02(a), Vernon’s Texas Penal Code, does not require
the same representation or’agreement required by Sec. 36.02(b)
and (c).
Of course, a conviction under Sec. 36.02(a) will require proof,
inter alia, that a benefit was offered with intent to influence the
public servant in a specific exercise of hio official powers or a
specific performance of his official duties. As a practical matter,
many and perhaps most cases will depend on evidence as a means
of establishing the element of intent that an understanding was
reached or that there was a representation, express or implied,
that the benefit was in payment for an action of the public official.
However, we are not prepared to state categorically that these
provide the only avenuer of prting intent.
You state:
“Therefore, if the bribery law (Sec. 36.02(a),
P.D., 1974,does not require a quid pro quo agree-
ment and the Lobby Control Act requires reporting
of total expenditures as expenditures with intent
to influence, then it appears that the Lobby Control
Act.. . is unconstitutional. ”
Like bribery laws, lobby control laws did not originate with the
63rd Legislature. In 1957 the Legislature adopted two acts, later
codified as Articles 183-1 and 183-2 of the Penal Code.
p. 1241
.
The Honorable Robert 0. Smith, page 6 (H-265)
Article 183-l (Acts 1957, 55th Leg., lrt c. s., ch. 9, p. 17) was
known as the Reprerentation Before the Legislature Act and generally
regulated lobbying in that arena. Section 3 of the Act (with a number
of exceptions contained in Sec.41 listed thtie required to register.
‘Sec. 3. l-he following persons shall register with
the Chief Clerk of the House of Representatives as pro-
vided herein:
“(a) Any person who, for compensation, undertakes
by direct communication to promote or oppose the passage
of any legislation by the Legislature or the approval or veto
thereof by the Governor.
‘j(b) Any person who, without compensation but acting
for the benefit of another person, undertakes by direct
communication to promote or oppose the passage of any
legirlation by the Legislature or the approval or veto
thereof by the Governor.
l’(c) Any person who, acting on his own behalf and
without compensation, makes an expenditure, or expendi-
tures, totaling in excess of Fifty Dollars ($50.00) during
a session of the Legislature for direct communication as
defined in Section 2(e) above. ‘I
It required certain information of the registrants (Sec. 5) and
provided: i:yi.‘;
“Sec. 6. Each person so registering, or required to
register hereunder, shall, between the first and fifteenth
day of each calendar month, rucceeding a month during
any part of which the Legislature is in session, so long
as hir activity continues, file with the Chief Clerk of
the House of Representatives, a signed, written report,
under oath, giving the total expenditurer made by him
during the preceding month, or part thereof, for direct
communication, as that term is defined herein in Sec-
tion 2(e); provided, however, that expenditures of the
p. 1242
The Honorable Robert 0. Smith, page 7 (R-265)
registrant for his personal sustenance and office
expense, clerical help, lodging and travel& need
not be included in such reports. Entertainment
expense for direct communication as that term
is defined herein in Section 2(e) shall be repor ted.
. . . 11
Article 183-1, V. ‘1. P. C., was expressly repealed by Sec. 15
of the Act adopting Article 6252-9~. the new Lobby Control Act (Acts
1973. 63rd Leg., ch. 422, p. 1096). On the other hand, Article 183-2
of the Penal Code (Acts 1957, 55th Leg., 1st C.S., ch. 12. p. 30) was
not repealed. Instead, the Act adopting the new Penal Code (Acts 1973,
63rd Leg., ch. 399) in its Sec. 5, transferred this and other unrepealed
articlea to the civil statutes where it now appears as Article 6252-23,
V. T. C. S. It calls for the regulation of lobbying before state agencies
and requires those who engage in such practice to register (Sec. 2)
tut does not require any report of expenditures.
Article 6252-9c, V. T. C. S., covero lobbying ~before both legislative
.and executive offices. Like former Article 183-1, V. T. P. C. , it required
not,only``gistiatiSi but ilsoth&‘.filing of anactivities report.
“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 Sub-
section (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
” (2) between the let and 10th day of each month
immediately subrequent to the last month in a
calendar quarter covering the actitities during the
previous quarter.
p. 1243
The Honorabl e Robert 0. Smith, page g W-265)
” (b) The report shall be written, verified, and
contain the following information:
” (1) the total expenditures made by the rdgistrant
for directly communicating with a member of the
legislative or executive branch to influence legislation,
including 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. Such report shall
include a breakdown of expenditures into the following
categoridr:
(A) postage and telegraph;
(B) publication and advertising;
(C) travel and fees;
(D) entertainment;
(E) gifta, loans, and political contributions; and
(F) other expenditures;
I’ (2) a list of legislation supported or opposed by the
registrant, by any person retained or employed by the
rcgiotrant to appear on his behalf, or by any other person
appearing on his behalf, together with a statement of the
registrant’s position for or against such legislation.
” (c) Each person who made expenditures on behalf
of a registrant that~are rrqaired to be reported by
Subsection (b) of this section or who has other inform-
ation required to be reported by the registrant under
this rection or Section 5 shall provide a full, verified
account of his expenditures to the registrant at leart
seven days before the registrant’s report is due to be
filed. ‘I
Your statement that the Act would be unconstitutional is based upon
+x conclusion that the reporting requirement would involve self incrim-
ination, and you cite to us Albertron v. Subversive Activities Control
Board, 382 U.S. 70 (1965); Marchetti v. United States, 390 U.S. 39 (1968);
Grosso v, United States, 390 U.S. 62 (1968); _Haynes v. Unit&d States, 390
U.S. 85 (1968); Leary V. United Staten, 395 U.S. 6 (1969); and California
v. Bvers, 402 U.S. 424 (1970).
p. 1244
“. .
‘fha Honorable Robart 0. Smith, page 9 (H-265)
Albertson involved an order of the Subversive Activities Control
Board, requiring individuals to register ao communists, a crime
under the Smith Act (18 U.S. C. 2385); Marchetta was convicted of
failing to register and pay a tax on the business of accepting wagers,
itself illegal; Grosso involved the failure to pay an excise tax impoaed
on wagers where compliance would have involved self incrimination;
Haynes involved self incrimination in registering a sawed-off shotgun;
Leary was a prosecution, inter alia, for failing to pay a transfer tax
on marijuana imported into the United States; Byarr involved a hit-and-
run statute requiring a driver involved in a motor vehicle accident
to stop and give his name and addrerr.
The Bve case, unlike the others, upheld the questioned statute.
Referring to the sb ove cases which you have cited, Chief Justice Burger
said:
19. . . In each of these cases
the Court
found that compliance with the statutory dis-
closure requirements would confront the
petitioner with ‘substantial haaards of self-
incrimination’ . . . ”
“In all of these cases the disclosure6
condemned were only those axtracted from a
‘highly selective group inherently suspect of
criminal activities’ and the privilege was
applied only in ‘an area permeated with
criminal statutes’ - - not in ‘an essentially
noncriminal and regulatory area of inquiry’ I’.
(402 U.S. at ,430)
274 U.S. 259 (1927); United States
480 F.2d 272 (7th Cir. 1973); United States v. Daly, 481 F.2d
28 (8th Cir. 1973).
Your ouggertion that a person registering as a lobbyist, i.e., aa having
made expenditures to directly communicate with a member of the legislative
or executive branches of the government to influence legislation, would
incriminate himself under Chapter 36 of the Penal Code seems to assume
that lobbying and bribery are one and the same. We disagree.
p. 1245
.
!
i . The Honorable Robert 0. Smith, page 10 (H-265)
Much like the information contained in an income tax return,
the expenditure disclosures required by the Lobby Control Act are
essentially neutral. The expenditures required to be reported, i.e.,
postage and telegraph; publication and advertising; travel and fees;:
entertainment: gifts, loans, and political contributions: and other
expenditures are in themselves non-criminal. The mere listing of
them wouldmt establish the offense of bribery and would not be self-
incriminating. Lobby Laws cannot be reasonably classified as "an
area permeated with criminal statutes. ” Rather, such laws deal with
“an essentially non-criminal and regulatory area of inquiry. ‘I Lobby-
ists do not constitute a “highly selective group inherently suspect of
criminal activities, I’as used in California v. Byers, supra. Lobby-
ing is practiced by many and diverse individuala and groups not only
having legitimate goals but also exercising legitimate and legal methods.
It is only when the lobbyist exceeds the customary and traditional
bounds of “lobbying” and attempts to confer the benefit with the intent
that the benefit so conferred will determine specific action that he
subjects himself to prorecution for bribery. Briber,y, on the other
hand, connotes and has alwayr connoted the concept of corrupt pay-
ment for an official act done or to be done with the corrupt intent to
influence the specific action of a public official by virtue of such pay-
ment. Bribery is the giving of benefit with the intent that the benefit
will determine specific action of the other person. Bribery is illegal,
criminal and immoral activity. Lobbying, a long recognized and
usually organized form of petitioning one’s government, is a legal
activity and expenditures made in connection therewith are legal unless
coupled with the essential elements of the offense of bribery, i.e., the
intent to influence the public servant in a specific exercise of his offi-
cial duties by the conferrat of a “benefit” as that term is defined in
$ 1.07(a)(6) of the Penal Code. We entertain no doubt, lherefore, that
the Texas Legislature in enacting the foregoing statutes intended to
deal with two separate and distinct public matters, i.e., penal pro-
visions:tD keep bribery a criminal offenre and the reporting provisions
of Article 6252-9~ to require the reporting of legal lobby expenditures.
p. 1246
The Honorable Robert 0. Smith, page I1 (H-265)
SUMMARY
The requirement of Article 6252-9~. V. T. C. S. ,
the Lobby Control Act, that periodic statements be
filed of expenditures made to directly communicate
with members of the Legislative and Executive branches
to influence legislation, is not rendered unconstitutional
by virtue of the fact that such expenditures could conbti-
tute bribery if coupled with the intent to influence the’
public servant in a specific exercise of his official du-
ties by the conferral of a “benefit” as that term is
defined in $1.07(a) (6) of the Penal Code.
Very truly yours,
L5i!fkCLa
.
Attorney General of Texas
-
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1247