The Attorney General of Texas 

November 28, 1979 

MARK WHITE 

Attorney General 

Honorable Reagan V. Brown 

Commissioner of Agriculture 

Stephen P. Austin Building 

Austin, Texas 787ll 

Opinion No. Mh’-9 0 

Re: Whether a public official may 

receive an honorarium for delivering 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 honorarium by 

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 administrative authority, 

who is employed by or in a tribunal having judicial 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, 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 honorarium from the prohibited category. Section 36.10 provides 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 kinship or a 

personal, professional, or business relationship 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 honorarium is received for the same 

service; and 

(C) the value of the honorarium does not exceed $250; 

(D) the honorarium, regardless of 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 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 SS 1, 8. 

That statute prohibits a state officer from accepting, inter aha, - any favor, 

compensation or 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 

p. 275 
Honorable Reagan V. Brown - Page Four @lw-’ ’ 1 

any honorarium offered 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 honorarium is 

not covered by the Penal Code. 

In summary, any public official who is offered an honorarium should examine the 

following statutes: 

(11 Penal 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 honorarium and 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 honorarium would 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 m easured 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: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

Susan Garrison 

Rick Gilpin 

Terry Goodman 

William G Reid 

p. 277