March 13, 1975
The Honorable A. R. Schwartz OpinionNo. H- 551
Senate Chamber
State Capitol Building Re: Whether legislators are
Austin, Texas 78711 prohibited from accepting
certain honorariums under
Dear Senator Schwartz: section 36.08. Penal Code
Section 36.08 of the Penal Code prohibits gifts to public servants under
certain circumstances.
You have asked:
[W]hether an honorarium paid [to a legislator] by
an organization for participation in a program of
that organization would be a prohibited gift or
legitimate fee.
Without knowledge of the facts of the particular situation it is not possible
to determine whether certain conduct constitutes a violation of law, However,
a review of the applicable statutes may be of assistance in helping to make
such a determination as to the propriety of particular conduct.
Section 36.08 of the Penal Code provides in pertinent part:
(f) A public servant who is a member of. ~.~ . the
legislature . . . commits an offense if he solicits,
accepts, or agrees to accept any benefit from a person
the public servant knows is 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.
p. 2475
The Honorable A. R. Schwartz, page 2 (H-551)
“Benefit” is defined in section 1.07(a)(6) of the Penal Code as:
* . , anything reasonably regarded as
economic gain or advantage, including benefit -
to any other person in whose welfare the bene-
ficiary is interested.
“Person” means an individual, corporation or association. Penal Code
sec. l.O7(a)(27).
The Penal Code provisions prohibiting gifts to public servants were adopted
without substantial change on the recommendation of the State Bar Committee
on Revision of the Penal Code. The Practice Commentary in Vernon’s
Annotated Penal Code, based upon the State Bar Committee’s comments which
were presented with the proposed ,Penal Code, explains the purpose of these
provisions as follows:
Although a gift to a public servant who may make an
official decision affecting the donor may be innocent,
it casts grave doubts on the integrity of the govern-
mental process. It may even be a bribe in which an
agreement simply cannot be proven. This section,
therefore, prohibits such gifts to ensure governmental
integrity and to penalize the unp~rovable bribe . . . [T]he
offense applies only if the public servant knows that the
donor is or may become interested in his or his agency’s
official action. Gifts from disinterested citizens are
not covered.
Because of the broad definition of ‘benefit’ in
Section 1.07, the offense covers more than gifts of money,
property, or vacations. Benefits such as employment or
an investment opportunity, either for the official or a
member of his family, are included.
Practice Commentary, Vernon’s Annotated Penal Code
f, 36.08 at 25.
Section 36.10 of the Penal Code sets out defenses to prosecution under
section 36.08. It provides:
p. 2476
.
I .
The Honorable A.R. Schwartz , page 3 (H-551)
It is a defense to prosecution . . . 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:
(2) a gift or other benefit conferred on account
of kinship or a personal, professional, or business
relationship independent of the official status of the
recipient;
(3) a trivial benefit incidental to personal,
professional, or business contacta that involves
no substantial risk of undermining official im-
partiality; or
(4) a contribution made under the election laws
for ~the political campaign of an elective public servant
when he is a candidate for nomination or election to
public office.
The commentary to section 36. IO explains the defense relating to
lawful fees and b,enefits:
Subdivision (1) exempts fees prescribed by law
and compensation earned by the recipient in an un-
official 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 interest in his official acts can be handled
more appropriately~ by oomprehensive conflict-of-
interest statutes than by criminal sanctions. See,
e.g., [V. T. C. S.] art. 6252-9b.
Practice Commentary, Vernon’s Annotated Penal
Code 5 36.10 at 27-28.
p. 2477
The Honorable A. R. Schwartz, page 4 (H-551)
An honorarium about which you inquire, is sometimes defined as
a payment or reward, usually in recognition of services on which custom
or propriety forbids any fixed business price-tobe set,~~~ Webster’s New
International Dictionary, p. 1196 (2nd ea.). It may be a free gift or
gratuitous payment, as distinguished from hire or compensation for
service. Black’s Law Dictionary, p. 869 (4th ed.). --And see Attorney
General Opinion C-523 (1965). The term also has been defined to include
a fee for professional services. Oxford English Dictionary (compact
ed.) p. 1326; Random House Dictionary of the English Language, p. 682.
Thus, the word is commonly used to embrace both the concept of gift
and of compensation. Compare e.g., Bogardus v. Commissioner of
Internal Revenue, 302 II. S. 34 (1937) with Bogardus v. Commissioner
of Internal Revenue, 88 F. 2d 646 (2d Cir. 1937). The circuit court
decision in Bogardus was reversed by the Supreme Court.
Payment or receipt of an honorarium could establish the “benefit”
element of the offense. Whether a defense exists, such as the “benefit
to which the public servant is lawfully entitled” defense found in section
36. IO(l), will depend in large part on the nature of the particular
“honorarium. ” If it is a professional fee, for example, the defense may
well be applicable. If, on the other hand, the “honorarium” represents
a gift or gratuitous payment, a prudent legislator would be advised to be
prepared that some other defense applied, e.g., that the honorarium
was conferred on account of kinship or a personal, professional, or
business relationship independent of the official status of the recipient.
Absent proof of such a defense, the offense .night be established.
Your question is phrased in terms of acceptance of an honorarium.
Whether the offense is established will always depend on the nature of the
honorarium which involves a question of fact.
However, in answer to your question, it is our opinion that under
-I-.. -i-cumstances a conviction under section 36.08 for receiving an
honorarium could be sustained. Whether acceptance of a particular
honorarium will constitute the offense will depend in large part on the
nature of the honorarium, e.g., whether it is a gratuitous payment or
a professional fee.
p. 2478
The Honorable A.R. Schwartz, page 5 (H-551)
SUMMARY
Depending on the circumstances, receipt by
a member of the Legislature of an honorarium,
may be a gift prohibited under section 36.08,
Texas Penal Code.
Very truly yours,
Attorney General of Texas
Opinion Committee
p. 2479’