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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 inhonor or appreciation of -- members and employees of the Legislature. Section 36.10 provides inpertinent part:

Sections 36.07 (Compensation forPast Official Behavior), 36.08 (Gift toPublic Servant), and 36.09 (Offering Gift to Public Servant) of this code do not apply to:

**. .**  **. .**  (5)abenefit toapublic servant required to file a financial statement under . . . (Article 6252-9b. Vernon's Texas Civil Statutes), that isderived from a function inhonor or appreciation of the recipient if:

**(A)** thebenefit and the source of any benefit in excess of $20 isreported in the financial statement; and (B)the benefit isused 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 orpolitical subdivision. (6)Subsection (5) . . .does not apply to

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

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. . . [members and employees of the Legislature] 30days prior to or during aregular 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 todefray nonreimbursable expenses of office. (Theexemption also extends to section 36.09, which applies topersons who confer benefits on public servants who are prohibited from accepting such benefits.) Sections 36.07 and 36.08 provide that apublic servant commits an offense ifhe "solicits, accepts, or agrees toaccept any pecuniary benefit" under certain circumstances. Penal Code 99 36.07(b) and 36.08(a). "Pecuniary benefit" isdefined by section 36.01(5) of .the Penal Code as:

money, property, commercial interests, or

. . ..~ other similar benefit theprimary signifi-
-. cance ofwhich is economic gain; but does -- not include contributions made and re orted inaccordance with +. - (Emphasis aded --Yf--T- A public servant cannot, therefore, commit an offense under sections 36.07 or 36.08 by soliciting or accepting a contribution reported inaccordance with law. Contributions which must be reported include anything ofvalue given to a candidate or political committee foruse inan election, or given'to an office holder for the purpose of assisting the office holder in theperformance of duties or activities in connection with the office by defraying nonreimbursable expenses. Election Code art. 14.01(D). Itappears, therefore, that the funds about which you are concerned may be contributions which must be reported inaccordance with article 14.07 of the Election Code. Ifproperly 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 donot

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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

rstAssistant

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