The opinion
The Attorney General of Texas
November 28, 1979
MARKWHITE
AttorneyGeneral
Honorable Reagan V. Brown Opinion No. Mh’-9 0
Commissioner of Agriculture
Stephen P. Austin Building Re: Whether a public official may
Austin, Texas 787ll receive an honorarium for deliver-
ing a speech.
Dear Mr. Brown:
You have asked if a public official may receive an honorarium. While
the term honorarium can have various meanings, Attorney General Opinion
II-551 (19751,in your question it is apparent that you are referring to fees for
speaking appearances.
There are essentially two barriers to the receipt of an honorariumby
public officials. These barriers are found in section 36.08, Penal Code, and
article 6252-9b, V.T.C.S. Both statutes must be satisfied before an
honorarium may be legally received. It is possible that in extreme Instances
receipt of an honorarium could also raise questions under sections 36.02
(bribery) or 36.07 (compensation of past official behavior) of the Penal Code.
Since these circumstances would fall far beyond the customary concept of
an honorarium, they are not encompassed within your inquiry and we need
not address them. See also Penal Code, S 36.09.
The initial barrier to receipt of an honorarium is found in section 36.08
of the Penal Code. It provides:
.
S 36.08.
(a) A public servant in an agency performing
regulatory functions or conducting inspections or
investigations commits an offenses if he solicits,
accepts, or agrees to accept any pecuniary benefit
from a person tha public servant knows to be subject
to regulation, inspection, or investigation by the
public servant or his agency.
fbl A public servant in an agency having custody of
prisoners commits an offense if he solicits, accepts,
or agrees to accept any pecuniary benefit from a
person the public servant knows to be in his custody
or the custody of hi agency.
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Honorable Reagan V. Brown - Page Two (Mw-90)
(c) A public servant in an agency carrying on civil or criminal
litigation on behalf of government commits an offense if he
solicits, accepts, or agrees to accept any pecuniary benefit from a
person against whom the public servant knows litigation is pending
or contemplated by the public servant cr his agency.
(d) A public servant who exercises discretion in connection with
contracts, purchases, payments, claims, or other pecuniary tram+
actions of government commits an offense if he solicits, accepts,
or agrees to accept any pecuniary benefit from a person the public
servant knows is interested in or likely to become interested in any
contract, purchase, payment, claim, or transaction involving the
exercise of his discretion.
(e) A public servant who has judicial or administrativeauthority,
who is employed by or in a tribunal having judicial or administra-
tive authority, or who participates in the enforcement of the
tribunal’s decision, commits an offense if he solicits, accepts, or
agrees to accept any pecuniary benefit from a person the public
servant knows is interested in or likely to become interested in any
matter before tha public servant or tribunah
ff) A public servant who is a member of or employed by the
legislature or by an agenj of the legislature commits an offense if
he solicits, accepts, Or agrees to accept any pecuniary benefit from
any persoll.
fg) An offense under this section is a Cla5 A misdemeanor.
It is clear that a speaker’s fee would constitute a pecuniary benefit. Penal Code,
S 36.01(5). The only question would be whether the particular honorarium could be
received by that public servant. Each particular fact situation must be measured against
the requirements of this statute. The provision most likely to be relevant to most
officials is subsection (a) which prohibits a public servant from receiving a pecuniary
benefit from any person subject to regulation by his agency. Whether thii provision will
apply in a specific instance will depend on the duties of the public servant and on the
identity of the person who is paying the honorarium. Since the prohibition in subsection
(aI applies dy if the public servant has regulatory or investigatory authority over the
individual,a person might be able to offer an honorarium to one public servant but not to
another, depending cm the regulatory powers and duties of the public servant. Of course,
subsection (0 prohibits a legislator from receiving an honorarium from any person unless
an exception can be found in another section.
If a particular honorarium is not covered by section 36.08, the Penal Code inquiry is
at an end. If, however, section 36.08 appears on its face to prohibit receipt of the
honorarium,section 36.lO of the Penal Code provides several exceptions which might act
to remove the honorariumfrom the prohibited category. Section 36.10provides in part:
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Honorable Reagan V. Brown - Page Three (Ml+90)
Sections 36.07 (Compensation for Past Official Behavior), 36.08
(Gift to Public Servant), and 36.09 (Offering Gift to Public Servant)
of this code do not apply to:
(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
or for which ha gives legitimate consideration in a capacity other
than as a public servant;
(2) a gift or other benefit conferred on account of kinshipor a
personal, professional, or businessrelationship independent of the
official status of the recipient;
(3) an honorarium in consideration for legitimate services
rendered above and beyond official duties and responsibilities if:
(A) not more than one honorarium is received from the
same person in a calendar year; and
(B) not more than one honorariumis received for the same
service; and
(C) the value of the honorariumdoes not exceed $250;
(D) the honorarium, regardless of amount, is reported in the
financial ~statementfiled under Chapter 421, Acts of the 63rd
Legislature, 1973 (Article 6252-9)4 Vernon’s Texas Civil
Statutes), if the .recipient is required to file a fiicial
statement under that Act; and
(E) the benefit is used solely to defray the expenses that
accrue in the performance of duties or a&vities in connection
with tha office which are nonreimbursable by the state or
political subdivision;
(4) a benefit consisting of food, lodging, transportation, or
entertainment accepted as a guest and reported as required by
Iaw; . . .
Although any one of the four portions of section 36.lO listed above will be sufficient
to remove a fee from the ambit of section 36.08, the most likely to be applicable is
.section 36.10(3) which refers specifically to honorariums. If section 36.10(3) is to be
applicable, all five requirements numbered(A) through (E) must be satisfied.
The required use of an honorarium under section 36.10(3)(E) is identical to the
defiiition of contribution in the Election Code. Elec. Code, art. 14.01(D). Accordingly an
elected official or the Secretary of State should not accept honorariums from a
corporation cc labor union when section 36.10(3) is the only applicable exception. Elec.
Code arts. 14.01(B),(G), 14.06.
Even if it is determined that a particular honorarium is not covered by the Penal
Code, it still must be examined in light of article 6252-94 V.T.C.S. See e eciall SS1, 8.
That statute prohibits a state officer from accepting, inter aha, - any favor,
compensationor employment that might reasonably tend to influence mm in the diiharge
Of his official duties Bach situation must be measured on its unique facts, but certainly
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Honorable Reagan V. Brown - Page Four @lw-’ ’ 1
any honorariumoffered a public servant by a parson or industry which is regulated by the
public official will at least raise questions under article 625244 even if the honorariumis
not covered by the Penal Code.
In summary, any public official who is offered an honorarium should examine the
following statutes:
(11Penal Code S 36.08. This sets out six situations in which.receipt
of an honorarium would be prohibited. Generally, the statute
applies when the public servant has regulatory authority over the
person offering the honorarium, but since the legality of any
particular honorarium will depend on the identity of the person
offering the honorariumand the duties of the public servant, all six
provisions of section 36.08 should be consulted. A legislator is
prohibited by section 36.08 from accepting an honorarium from any
person.
(21 Penal Code S 36.10. Section 36.10 provides exceptions to the
offenses created by section 36.08. Thus, it is necessary to examine
section 3610 only if section 36.08 otherwise would prohibit receipt
of an honorarium. Legislators, for example, must always ba certain
that they meet an exception set out in section 36.10. Since most
persons will normally have to rely on the exception in section
36.lOo(3l,any honorariumwould be limited to $250. When one relies
on that exception ha may not accept an honorarium from a
corporation or labor union. There is no need to consult section
36.10 or to be limited to honorariums of $250 unlem section 36.08
would otherwise be violated
(31 V.T.C.S. art. 6252-N. Even if an honorarium is permissible
under the Penal Code, it may still be prohibited under the ethics
law. Basically, this statute prohibits receipt of an honorarium that
might tend to influence the public servant in the exercise of his
official duties It must be satisfied before any honorarium may ba
accepted
SUMMARY
An honorarium offered a public official must be measured against
chapter 36 of the Penal Code and article 6252-84 V.T.C.S. Before
an honorarium may be legally accepted, it must satisfy the
requirements of both statutes.
/djijfm
Attorney General of Texas
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Honorable Reagan V. Brown - Page Five (Mh’w-9O)
JOHN W. PAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by C. Robert Heath
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
C. Robert Heath, Chairman
David B. Brooks
SusanGarrison
Rick Gilpin
Terry Goodman
William G Reid
p. 277