, 

May 21, 1974 

The Honorable David Finney, Chairman 

State Affaira Committee 

House of Representatives 

Aurtin, Texas 70767 

Opinion No. H- 311 

Re: Questions concerning activities 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 ue two questions concerning Houee Bill 2 af 

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 5 of the Act and to compile and file 

ite activity report as required by Section 6 of the Act? ” 

The cited section of the statute i6: 

“Sec. 3. (a) The following persone must register 

with the secretary as provided in Section 5 of this Act: 

(1) a person 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 of the 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 5 and 6, covering registration under the Aet and the activities reports, ,provides m part: 

“Sec. 5. (a) Every person required to register 

under Section 3 of 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 on behalf 

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 

of his 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 1st and 10th day of each month subsequent 

to a month in which the legislature is in session covering 

the activities during the previous month; and 

p. 1438 
The Honorable David Finney page 3 (H-311) 

:~ 

(2) between the 1st and 10th day of each month 

immediately eubeequent to the last month in a 

calendar quarter covering the activities dud ng 

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 of the members of a group other than a 

corporation, the registration form ehall include 

a etatement of the number of members of the group 

and .a full 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 of the 

,‘chrnge; ” 

Both 5 5 and.$ 6~ require, ~respectively, that ,the ra&tration and the 

report whioh they require be “written; verified, and; contaid’ ,certain ,information. 5 0 .directr the Secretary of State to design and provide appropriate 

forms. Unless we take the view that the requirement of verification was 

intended to mean that only the registrmt could sign the reporte, nowhere 

do,es the Act require that either the 5 5 registration or the 9 6 activity report 

be prepared, signed or filed by any particu)ar person, and we answer your 

first queetion, that,any person covered by 8 3 (a)(l), may authorize its 

employed legislative representative or lobbyist to act in its behalf and to 

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

Section 9 of the Act, makesfacriminal offense to violate any provision 

of the Act. Regardlear of who actually prepares, verifies.or files the 

report, the registrant is responsible for the performance of those acts 

and if the report filed on behalf of a registrant does not contain all the 

information required by either $ 5 or $ 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 

$ 6 of the Act are expenditures “made by others on behalf 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 in your letter. that a lobbyist might urge members of an association to contact members of the Legislature, and yet have no knowledge 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. 

While the Lobby Act does not prescribe a culpable mental state in 

regard to a violation 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 of but consciously 

disregards a substantial and unjustifiable risk that the circumstances exist 

p. 1440 
The Honorable David Finn& 'pa&e 5 (H-311) 

,~j .I ::. 

or the 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 in Art. 6252-9~~ .Vi T.&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 fi&e the requtred 

registration and activity reports, but the psrron required 

to file under either 8 5 or 8 6 of .the Act will remain 

civilly and criminally liable for compliance with those 

sections of the statute. 

A registrant under the Act who cannot, through 

diligent effort, discover expenditures made by others 

on his behalf, may be excused,for a failure to report 

them. 

very truly your*, 

JOHN L. HILL 

Attorney General of Texas 

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

APP#?QVjD: 

DAVID M. KENDALL, ‘Chairman 

Opinion Comznittee 

p. 1442