. 

The Honorable Herman Adams Opinion No. H- 954 

Chairman 

House Committee on Elections Re: Applicability of 

Texas House of Representatives Penal Code § 36.10(5) and 

Austin, Texas 78701 (6) to funds derived from 

appreciation functions. 

Dear Chairman Adams: 

You have requested our opinion regarding the application 

of section 36.10(5) and (6) of the Penal Code to contributions 

.- derived from functions held in honor or appreciation of 

-- members and employees of the Legislature. Section 36.10 

provides in pertinent part: 

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: 

. . . . 

(5) a benefit to a public servant required 

to file a financial statement under . . . 

(Article 6252-9b. Vernon's Texas Civil 

Statutes), that is derived from a function 

in honor or appreciation of the recipient if: 

(A) the benefit and the source of any 

benefit in excess of $20 is reported in 

the financial statement; and 

(B) the benefit is used solely to 

defray the expenses that accrue in the 

performance of duties or activities in 

connection with the office which are nonreimbursable by the state or political 

subdivision. 

(6) Subsection (5) . . . does not apply to 

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( -\. 

The Honorable Herman Adams - page 2 (H-954) 

. 

. . . [members and employees of the Legislature] 

30 days prior to or during a regular session of 

the Texas Legislature. 

Thus; subsections (5) and (6) of section 36.10 exempt public 

servants from liability under sections 36.07 and 36.08 for 

certain benefits received which are used solely to defray 

nonreimbursable expenses of office. (The exemption also 

extends to section 36.09, which applies to persons who 

confer benefits on public servants who are prohibited from 

accepting such benefits.) Sections 36.07 and 36.08 provide 

that a public servant commits an offense if he "solicits, 

accepts, or agrees to accept any pecuniary benefit" under 

certain circumstances. Penal Code 99 36.07(b) and 36.08(a). 

"Pecuniary benefit" is defined by section 36.01(5) of 

.the Penal Code as: 

money, property, commercial interests, or 

. . ..~ other similar benefit the primary signifi- 

-. cance of which is economic gain; but does -- 

not include contributions made and re orted 

inaccordance with +. - (Emphasis --Yf--T- a ded 

A public servant cannot, therefore, commit an offense under 

sections 36.07 or 36.08 by soliciting or accepting a contribution reported in accordance with law. Contributions which 

must be reported include anything of value given to a 

candidate or political committee for use in an election, or 

given'to an office holder for the purpose of assisting the 

office holder in the performance of duties or activities in 

connection with the office by defraying nonreimbursable 

expenses. Election Code art. 14.01(D). It appears, therefore, 

that the funds about which you are concerned may be contributions which must be reported in accordance with article 

14.07 of the Election Code. If properly reported, such 

contributions do not constitute a "pecuniary benefit" for 

which liability may attach under sections 36.07 and 36.08 of 

the Penal Code. 

SUMMARY 

Contributions for election expenses or 

nonreimbursable office expenses do not 

P. 3983 
The Honorable Herman Adams - page 3 (H-954) 

constitute "pecuniary benefits" if 

legally reported as contributions under 

the Election Code. Such contributions are 

not therefore within the scope of sections 

36.07 and 36.08 of the Penal Code. 

. 

Very truly yours, 

APPROVED: 

Attorney' General of Texas 

rst Assistant 

Opinion Committee 

jwb 

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