,

May 21, 1974
The Honorable David Finney, Chairman State Affaira Committee House **of** Representatives Aurtin, Texas 70767 Opinion No. H- 311 Re: Questions concerning activi**ties** report required by Houee Bill 2, b3rd. Leg., Article 6252-9~. V. T. C.S. Dear Representative Finney: **On** behalf **of** the State Affairs Committee of the Houre of Repreeentativee you have eubmitted to uetwo questions concerning Houee Bill 2af the 63rd. Legirlature (Acte 1973, 63rd Leg., ch.422, p. ,1096)incorporatad into Vernon’s Texas Civil Statutes as Article 6252-9~. Your firrt question aeke:

“h&y **the** entity covered in Section 3(a)(l) designate ite employed legislative representative or lobbyist as ite agent and authorize the agent to file its registration pursuant to Section 5of the Act and to compile and file ite activity report as required by Section 6ofthe Act? ” The cited **section** of the statute i6:

“Sec. 3. (a) The following persone must register with the secretary as provided in Section 5ofthis **Act:** (1) aperson who makes a total expenditure in excess of $200 in a calendar quarter, not including his own travel, food, or lodging expenses, or his **own** memberehip duea, for communicating directly with one or more members ofthe legielative or executive branch

p* 1437.Y

The Honorable David Finney pagc~2 (H-311)

to influence legislation;
. . .” Section 2 (1) of the statute defines “person” to include not only individuals, but also corporations, associations, firms, partnerships, committees, clubs~and “other organizations or groups of persone who are voluntarily acting in concert. ”

, Sections 5and 6, covering registration under the Aet andthe activities reports, ,provides m part:

“Sec. 5. (a) Every person required to register under Section 3of this Act shall file a regietration form with the secretary within five days after the first undertaking, requiring regtrtration except as otherwise provided herein. (b) The registration shall be written, verified, and shall domain the following information: (c) Each person who made expenditures onbehalf of a r.egistrant that are required to be reported by Subsection (b),of this section or who has other information requi,red to be reported by the registrant under this section or Section 5 shall provide a full, verified account ofhis expenditures to the regietrant at least seven days before the registrant’s report is due to be filed.

“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 Subsection (b) of this section. The report must,be filed: (1) between the 1stand 10thday of each month subsequent to a month inwhich the legislature is in session covering the activities during the previous month; and

p. 1438The Honorable David Finney page 3 (H-311) :~ (2) between the 1stand 10thday of each month immediately eubeequent to the last month in a calendar quarter covering the activities dudng the previoue quarter. (b) The r,eport shall be,written, verified, and
~.contain the:,following information:
. . . (c) If a registrant’s activities are done on behalf ofthe members of a group other than a corporation, the registration form ehall include a etatement of the number ofmembers of the group and .afull description of the methods by which the regirtrant develop8 and makee decisione about poeitionr on policy. ‘, (d) A registrant shall file a supplemental regietra- ~8.. tion indicating any change in the information contained in the 

### rsg~mtration within.10 days,after the date ofthe

,‘chrnge; ” Both 55and.$ 6~

require, ~respectively, that,thera&tration andthe report whioh they require be “written; verified, and;contaid’ ,certain ,information. 50.directr the Secretary of State to design andprovide appropriate forms. Unless we take the view that the requirement ofverification was intended to mean that only the registrmt could sign the reporte, nowhere do,esthe Act require that either the 55registration or the 96activity report be prepared, signed or filed by any particu)ar person, andwe answer your first queetion, that,any person covered by 83(a)(l), may authorize its employed legislative representative or lobbyist to act in its behalf andto file the registration or report which it is required to file, provided the authorization ir bona fide **and** is not made to avoid, r~esponeibility under the Act. **However,** the entity required to file will remain liable for penalties and will be in violation of criminal laws for non-compliance with the statute.

p. 1439The Honorable David Finney page 4 (D-311)

Section 9of the Act, makesfacriminal offense to violate **any** provision of the Act. **Regardlear** ofwho actually prepares, verifies.or files the report, the registrant is responsible for the performance ofthose acts and if the report filed onbehalf of a registrant does not contain all the information required by either $ 5or $6, the registrant, by $9, is made guilty of a misdemeanor and subject to monetary penaltien in three times the amount of compensation or reimbursement received **or** expenditure made.Your second,quertion asks:

tlCk the registrant be required under penalty mf law to,report expenditures by non-registrants of which he ie unaware and could not through diligmnt effort discover? ” Among the expenditures a registrant is required to report under $6ofthe Act are expenditures “made by others onbehalf of ’the registrant for those direct communications if the expenditures were made with his express or implied consent or were ratified by him,
. .” Section 6 (b)(l). You note inyour letter. that alobbyist might urge members of an association to contact members of the Legislature, andyet have noknowledge of and l.ittle possibility of.discovering whether they have so acted or what expenditures they have made, even though the lobbyist employs due diligence. Whilethe Lobby Act does not prescribe a culpable mental state in regard to aviolation of $6, ,tht Penal Code requires one “unless the definition plainly dispenses with any mental element. ” Sec. 6.02 (b), V. T. P. C. When the definition is merely silent as to the mental state, Subsection 6.02(b) presumes that one is required and Subsection 6.02 (c) requires that it amount at least to recklessness. A person acts recklessly when “he is aware ofbut consciously disregards a substantial and unjustifiable risk that the circumstances exist

p. 1440The Honorable David **Finn&** 

### 'pa&e**5** (H-311) ,~j.I ::.

orthe result will occur. ‘I Rechlessness requires a “gross devifrtion,from the standard of care that an ordinary person would exercise. ” Sec. 6.d3 (c), V.T. P. C. Thus, if the rcgintrant has exercised reasonable diligence to determine expenditures made by others on his behalf and cannot ‘difyver any fa.cts to report, we do not believe he could be guilty of the defir@ crime. SUMMARY A “person”, as defined inArt. 6252-9~~ .ViT.&S, : . who malcee a total expenditure in excess of $200 in ‘a .,. calendar quarter for communicating directly witha member of the legislative branch to influence legielation may designate its employed legislative rwrementative or lobbyist to prepare, verify and fiðe requtred registration and activity reports, but the psrron required to file under either 85or 86of.the **Act** will remain civilly and criminally liable for compliance with those sections ofthe statute. A registrant under the Act who cannot, through diligent effort, discover expenditures made by others on his behalf, **may** be excused,for afailure to report them. very truly your*,

JOHN L. HILL Attorney General of Texas

p. 1441The Honoiable David Finneg page 6 (~-311)

APP#?QVjD:

DAVID M. KENDALL, ‘Chairman Opinion Comznittee

p. 1442