# The Attorney General of Texas

November 28, 1979 MARK WHITE **Attorney** General

HonorableReaganV. Brown

Commissioner of Agriculture StephenP. AustinBuilding Austin,Texas 787ll OpinionNo. Mh’-90
Re: Whether a public official may receive an honorariumfor delivering a speech.
Dear Mr. Brown:
You have askedif a public official may receive an honorarium. While the term honorariumcan have various meanings, Attorney General Opinion II-551 (19751,

in your question it is apparentthatyou are referring to fees for speakingappearances. 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 honorariummay 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 (compensationof 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 inquiryand we need not addressthem. See also Penal Code, S 36.09. The initial barrier to receipt of an honorariumis 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 havingcustody 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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(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 pecuniarybenefit from a person against whom the public servant knows litigation is pending or contemplated by the publicservant 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 pecuniarybenefit 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 whohas judicial or administrativeauthority, who is employed by or in a tribunalhavingjudicial or administrative 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, Oragrees to accept anypecuniarybenefit from any persoll. fg) An offense underthis 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 mustbe measuredagainst 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 anyperson 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 honorariumto 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 honorariumfrom any person unless an exception can be found in another section. If a particular honorariumis not covered by section 36.08, the Penal Code inquiryis at an end. If, however, section 36.08 appears on its face to prohibit receipt of the honorarium,section 36.lOof the Penal Code provides several exceptions which might act to remove the honorariumfrom the prohibitedcategory. Section 36.10 provides in part:

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Sections 36.07 (Compensationfor Past Official Behavior), 36.08 (Gift to Public Servant),and 36.09 (Offering Gift to Public Servant) of this code do not applyto: (1)a fee prescribed by law to be received by a publicservant or anyother benefit to which the publicservant is lawfully entitled or for which ha gives legitimate considerationin a capacity other thanas a public servant; (2) a gift or other benefit conferred on account of kinshipor a personal, professional, or businessrelationshipindependentof the official status of the recipient; (3) an honorarium in consideration for legitimate services rendered above andbeyondofficial duties andresponsibilities if: (A) not more than one honorarium is received from the same person in a calendaryear; and (B) not more than one honorariumis received for the same service; and (C) the value of the honorarium does not exceed $250; (D) the honorarium,regardlessof amount, is reported in the financial ~statement

filed 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 underthat 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 nonreimbursableby 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;

. . . Althoughany one of the four portions of section 36.lOlisted 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) mustbe 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 honorariumis not covered by the Penal Code, it still mustbe examinedin 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 reasonablytend to influence mm in the diiharge Of his official duties Bach situation mustbe measuredon its uniquefacts, but certainly

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any honorariumoffered a publicservantby a parsonor industrywhich is regulated by the public official will at least raisequestionsunderarticle 625244 even if the honorarium is not covered by the Penal Code.
In summary, any public official who is offered an honorariumshould examine the following statutes:

(11 Penal Code S 36.08. This sets out six situationsin 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 honorarium andthe duties of the public servant, all six provisions of section 36.08 should be consulted. A legislator is prohibitedby section 36.08from accepting an honorariumfrom any person. (21 Penal Code S 36.10. Section 36.10provides 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, mustalwaysba 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 honorarium

would be limited to $250. Whenone relies on that exception ha may not accept an honorarium from a corporation or labor union. There is no need to consult section 36.10or to be limited to honorariumsof $250 unlem section 36.08 wouldotherwise be violated (31 V.T.C.S. art. 6252-N. Even if an honorarium is permissible underthe Penal Code, it may still be prohibited under the ethics law. Basically, this statute prohibits receipt of an honorariumthat might tend to influence the public servant in the exercise of his official duties It mustbe satisfied before anyhonorariummay ba accepted SUMMARY An honorariumoffered a public official mustbe m easured against chapter 36 of the Penal Code andarticle 6252-84 V.T.C.S. Before an honorarium may be legally accepted, it must satisfy the requirementsof both statutes. 

# /djijfm

Attorney Generalof Texas

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JOHN**W.** PAINTER,JR. First AssistantAttorney General
TED L. HARTLEY Executive AssistantAttorney General Preparedby C. Robert Heath AssistantAttorney General APPROVED: OPINION

COMMITTEE
C. Robert Heath, Chairman DavidB. Brooks SusanGarrison Rick Gilpin Terry Goodman WilliamG Reid

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