# GENERAL

THSC ATHBRNEY

OF TEXAS
AUNTIN. TRXAO **76711** March 22, 1974

The Honorable Robert 0. Smith District Attorney Travis County Courthouse Austin, Texar

Dear Mr. Smith: OpinionNo. H- 265 Re: Interrelationship of Sectiona **36.02** (a) and (b) of the Penal Code and Article 6252-9~. The Lobby Control Act. Your letter requesting our opinion requires an interpretation of Article 36.02 of the new Penal Code. entitled “Btibery” in conjunction with the Lobby Control Act (Article 6252-9c, V. T.C.S.). Section 36.02 of the new Penal Code.providea:

“(a) A person commits an offense ifhe offers, confers, or agrees to confer any benefit on a public servant, party, official. or voter:

“(1) with intent to influence the. public aervnnt or party official in a rpecific exercise ofhir official powere or a specific performance **of**hi8 official duties: or

“(2) with intent to influence the voter not to vote or to vote in a particular manner.

“lb) A public servant **or** party official commit8 anoffenre if he knowingly solicito, accepts, or **agrees to**  accept any benefit **on** the repre.sentation **or** understanding that he will be influenced in a specific exercise ofhis official powers or a specific performance **of** himofficial dutiecr.

p. 1237The Honorablr Robert 0. Smith, pago 2 (H-268)

.

“(c) A voter commite an ofienre if he knowingly rcceptr or agree8 to accept any bemflt onthe rep**rerentation or**  understanding that he will notvote or will vote in a particular manner. l’(d) **An** offenee **under thin**  **section** is **a** felony of the third degree unleea committed under Subrection (b) of thir rection. in which event it ir a felony ofthe second degree. ‘I The Penal Code provider &tSection 1.07 (a) (6) that:

“(a) ln thie code:

. . .

“(6) ‘Benefit’ means anything reasonably regarded ae iconomie gain or advantage, including benefit to any other person inwhore welfare the bene5ciary ia intererted. ‘I You que&ion the kct that, apparently, the briber ir guilty ofthe crime if he “offers, confera, or agreea to confer” abenefitwith thefntant to influence the recipient while the recipient. under ‘S& l ectione (b) and (c), qprently commitr the offenee only if he lctr

“on the roprerentatlon or underetandings~that he will be influqpced. You l *te in your letter th8t, in your opinion, a I’representation or underrtanding” ir a required element of the offense ofbribery under Sec. 36.02(a) or elre the Lobby Control Act ir unconrtitutional. Both the Lobby Control **Act** and the Penal Code’r Bribery Chapter murt be read inthe light of the citizen’r con&tutionally protected right to petition hir government. See generally, U.S. v. Harrier, 34% U.S. 612 (1953). H-18 (1973). Of course, the conrtitutionel right of pbtition har never been construed to include a right to commtt the crime of bribery. Bribery ir defined iB Article 16, Sec. 41 of the Teaua Conrtitution:

p. 1238. .

. . The Honorable Robert 0. Smith, page 3 **(H-265)**

“Any perron who rho11

. . . offer, give, or promire. any **money** or thing **of**value , , , to **any** executive or judicial officer or member of the Legirlature to influence him.

. . shall be guilty of bribery.

. . . And any member ofthe Legirlature or executive orjudicial officer who rhall rolicit, demand or receive

. . . any money, appointment,

. . . thing ofvalue or employmen&.; ‘for hir vote or official influance, , . . or with any understanding expreraed or implied, that**hir** vote or official actionrhall be in anyway influenced thereby.

. . shall beheld guilty of bribery,

. . . ” Purruant to conrtitutional mandate, the Legirlature, in 1858, adoptedArticleg.l58.and:I59,Tek’ia~MCode: &&at the?liind’ofthadr’~‘i61973,pr’o~dad:

Article 158

“Whoever rhall bribe or offer to bribe any executive, legirlative orjudicial **offlcer** after hir election or appointment, andeither before or after he rhall have qualified or entered upon the dutier ofhim office, or any perron employed by or acting for or on bbhalf of the State of Texan, any board, commir- #ion, **agency,** or department thereof, any **county,** rchool dirtrict, city or town, or any political aubdivirion or municipal corporation whatsoever, with intent to influence his act, vote, decision, judgment or recommazdation on any mtter, question, cause, contract or proceeding which may be then pending, or which may thereafter be brought or come before ruch perron inhir official capacity, or in him place, agency or porition of employment, or do any other act or omit to do any other act in violation **of hir**  duty aman officer, or ammuchemployee or agent, rhall **be** guilty **of**bribery and rhall be confined in the penitentiary not lerr thantwo nor more than five year,, or be confined injail for not lerr than one month normore thantwo **yeara, or**  **be** fined not lera

.’ than **Five** ‘Hundred Dollarr nor more than Five Thousand Dollarr, or by both muchfirm andimpriron**ment. I** **’**
p. 1239The Honorable Robert 0. Smith, page 4 **(H-265)**

Article 159

“Any legir,lative, executive orjudicial officer, or any employee or agent, or perron holding a position ofhonor, trurt or profit with, or any peraon acting for or on behalf **of, the** State of Texas, any board, commission, agency or department thereof, any county, school dietrict, city or town, or any political subdivision or municipal corporation whatsoever, who &all accept abribe, or agree or consent to accept a bribe under an agreement or with an understanding thathis act, vote, recommendation, opinion or judgment shall be done, influenced or given in any particular manner, or upon a particular aide ofany question, matter, contract, cause or proceeding which ia or may thereafter be pending, or which may be brought or come before him inhi8 official capacity, or in his place, agency or position of employment, or in’liis position ofhonor, trust or profit, or that he shall make any particular nomination or appointment, or shall doany other act, or omit to do any act, inviolation ofhis duty as an officer, or hia posifi’on. agency or employment shall be‘guilty ofbribery and Bhallbe punished as is provided in Section 1ofthis Act; or any such person who shall ask, solicit or offer to accept a bribe with the intent or for the purpose of influencing his act, decision, vote, opinion or recommendation, on any question, matter, nomination, cause, proceeding or contract which may at any time be pending, or which may be brought or come before him in hir official capacity, or inhir employment, agency or place or position ofhonor, trust or profit rhall be guilty of bribery and rhall be confined in tha.penitentiary not leas thantwo nor more than ten yearn, or be confined injail **for** not leer than onemonth nor more thantwo years, or be fined **not** lenr **than** Five Hundred Dollar8 nor more than Five Thourand Dollarr, **or** by both such fine and imprisonment. ”

p. 1240The Honorable Robert 0. Smith, page 5 (H-265)

Both ofthese articles were repealed by the enactment ofthe 1973 Penal Code [Acts 1973. 63rd Leg., ch. 399, sec. 3(a)]. Itis our opinion that the requirements ofArticles 158and 159 were substantially the same asthose ofthe Constitution andthose of Sec. 36.02 ofthe new Penal Code. Inour opinion, Sec. 36.02, does not create a new crime but msrely restates the law of bribery. Obviously, since it has been in effect only since January lrt of this year, there have been no reported decisions construing Sec. 36.02. However, early in the history of our state it was determined that, as to the briber, the ci-ime of bribery **was** complete when the wrongful offer was made. Goldsberrv v. State, 242S.W. 221 (Tex. Grim. 1922). And Sowells v. State, 270S.W. 558 (Tex. **Grim.** 1925)holding that the intent ofthe recipient of the bribe is of no consequence in determining the guilt of the briber. It ir our opinion, therefore, that Sec. 36.02(a), Vernon’s Texas Penal Code, does not require the same representation or’agreement required by Sec. 36.02(b) and (c). Of course, a conviction under Sec. 36.02(a) will require proof, inter alia, that a benefit was offered with intent to influence the public servant in a specific exercise ofhio official powers or a specific performance of his official duties. As a practical matter, many andperhaps most cases will depend on evidence as a means of establishing the element of intent thatanunderstanding was reached or thatthere was a representation, express or implied, thatthe benefit was in payment for anaction ofthe public official. However, we are not prepared to state categorically thatthese provide the only avenuer of prting intent. You state:

“Therefore, if the bribery law (Sec. 36.02(a), P.D., 1974,does not require a quid pro quo agreement andthe Lobby Control Act requires **reporting** oftotal expenditures as expenditures with intent toinfluence, then it appears that the Lobby Control Act..

. is unconstitutional. ” Like bribery laws, lobby control laws did notoriginate with the 63rd Legislature. In 1957the Legislature adopted two acts, later codified as Articles 183-1 and 183-2 ofthe Penal Code. p. 1241.

The Honorable Robert 0. Smith, page 6 (H-265)

Article 183-l (Acts 1957, 55thLeg., lrt c. s., ch. 9, p. 17)was known as the Reprerentation Before the Legislature Act and generally regulated lobbying in that arena. Section 3of theAct (with a number of exceptions contained in Sec.41 listed thtie required to register.

‘Sec. 3. l-he following persons shall register with the Chief Clerk ofthe House of Representatives as provided herein:

“(a) Any person who, for compensation, undertakes bydirect communication to promote or oppose the passage ofany legislation bythe Legislature or the approval or veto thereof by the Governor.

‘ j(b) Any person who, without compensation butacting for the benefit ofanother person, undertakes by direct communication to promote or oppose the passage of any legirlation by the Legislature or the approval or veto thereof by the Governor. l’(c) Any person who, acting onhis ownbehalf and without compensation, makes an expenditure, or expenditures, totaling in excess of Fifty Dollars ($50.00) during a session ofthe Legislature for direct communication as defined in Section 2(e) above. ‘I It required certain information of the registrants (Sec. 5) and provided: i:yi.‘;

“Sec. 6. Each person so registering, or required to register hereunder, shall, between the first andfifteenth day of each calendar month, rucceeding a month during anypart ofwhich the Legislature is in session, so long as hir activity continues, file with the Chief Clerk of theHouse of Representatives, a signed, written report, under oath, giving the total expenditurer made by him during the preceding month, or part thereof, for direct communication, as that term is defined herein in Section 2(e); provided, however, that expenditures of the

p. 1242The Honorable Robert 0. Smith, page 7 (R-265)

registrant for his personal sustenance and office expense, clerical help, lodging and travel& need not be included in such reports. Entertainment expense for direct communication as that term is defined herein inSection 2(e) shall be repor ted. 11

. . . Article 183-1, V. ‘1.P.C., was expressly repealed by Sec. 15 of the Act adopting Article 6252-9~. the new Lobby Control Act (Acts 1973. 63rd Leg., ch. 422, p. 1096). On the other hand, Article 183-2 of the Penal Code (Acts 1957, 55th Leg., 1st C.S., ch. 12. p. 30)was not repealed. Instead, theAct adopting the new Penal Code (Acts 1973, 63rd Leg., ch. 399) in its Sec. 5, transferred this and other unrepealed articlea to the civil statutes where it now appears as Article 6252-23, V. T. C.S. Itcalls for the regulation of lobbying before state agencies and requires those who engage in such practice to register (Sec. 2) tut does not require any report of expenditures. Article 6252-9c, V. T.C.S., covero lobbying ~before both legislative .andexecutive offices. Like former Article 183-1, V. T. P. C. , it required not,only~~gistiatiSi butilsoth&‘.filing of anactivities report.

“Sec. 6. (a) Every person registered under Section 5ofthis 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 in which the legislature is in session covering theactivities during the previous month; and ” (2) between thelet and 10thday of each month immediately subrequent to the last month in a calendar quarter covering the actitities during the previous quarter.

p. 1243The Honorabl e Robert 0. Smith, page g W-265)

” (b) The report shall bewritten, verified, and contain the following information: ” (1) the total expenditures made by the rdgistrant for directly communicating with a member ofthe legislative or executive branch to influence legislation, including expenditures made by others onbehalf of the registrant for those direct communications ifthe expenditures were made with his express or implied consent orwere ratified byhim. Such report shall include a breakdown of expenditures into the following categoridr:

(A) postage and telegraph; (B) publication and advertising; (C) travel and fees; (D) entertainment; (E) gifta, loans, and political contributions; and (F) other expenditures; I’ (2) a list of legislation supported or opposed by the registrant, by any person retained or employed by the rcgiotrant to appear onhis behalf, or by any other person appearing onhis behalf, together with a statement ofthe registrant’s position for or against such legislation. ” (c) Each person who made expenditures on behalf of a registrant that~ are rrqaired to be reported by Subsection (b) of this section or who has other information required to be reported by the registrant under this rection or Section 5shall provide a full, verified account of his expenditures tothe registrant at leart seven days before the registrant’s report is due to be filed. ‘I Your statement that the Act would be unconstitutional is based upon +x conclusion thatthe reporting requirement would involve self incrimination, andyou cite tous Albertron v. Subversive Activities Control Board, 382 U.S. 70 (1965); Marchetti v. United States, 390U.S. 39 (1968); Grosso v, United States, 390 U.S. 62 (1968);_Haynesv. Unit&dStates, 390 U.S. 85 (1968); Leary V. United Staten, 395 U.S. 6 (1969); and California v. Bvers, 402 U.S. 424 (1970). p. 1244“.

.

‘fha Honorable Robart 0. Smith, page 9 (H-265)

Albertson involved anorder ofthe Subversive Activities Control Board, requiring individuals to register ao communists, a crime under the Smith Act (18U.S. C. 2385); Marchetta was convicted of failing to register and pay a tax onthe business ofaccepting wagers, itself illegal; Grosso involved the failure to pay an excise tax impoaed onwagers where compliance would have involved self incrimination; Haynes involved self incrimination in registering a sawed-off shotgun; Leary was aprosecution, inter alia, for failing topay a transfer tax on marijuana imported into the United States; Byarr involved ahit-andrun statute requiring a driver involved in a motor vehicle accident to stopand give his name andaddrerr. The Bve case, unlike the others, upheld thequestioned statute. Referring tothe sbove cases which you have cited, Chief Justice Burger said: 19

. . . In each ofthese cases the Court found that compliance with the statutory disclosure requirements would confront the petitioner with ‘substantial haaards of selfincrimination’

. . . ”

“In all of these cases the disclosure6 condemned were only those axtracted from a
‘highly selective group inherently suspect of criminal activities’ andthe privilege was applied only in ‘an area permeated with criminal statutes’ - - not in ‘an essentially noncriminal and regulatory area of inquiry’ I’

. (402 U.S. at,430) 274 U.S. 259 (1927); United States 480 F.2d 272 (7thCir. 1973); United States v. Daly, 481 F. 2d 28 (8th Cir. 1973). Your ouggertion that a person registering as a lobbyist, i.e., aa having made expenditures to directly communicate with amember of thelegislative or executive branches of the government to influence legislation, would incriminate himself under Chapter 36ofthe Penal Code seems toassume that lobbying and bribery are one and the same. We disagree.

p. 1245. ! i

. The Honorable Robert 0. Smith, page 10 (H-265)

Much like the information contained in an income tax return, the expenditure disclosures required by the Lobby Control Act are essentially neutral. The expenditures required tobe reported, i.e., postage and telegraph; publication and advertising; travel andfees;: entertainment: gifts, loans, and political contributions: and other expenditures are in themselves non-criminal. The mere listing of them wouldmt establish the offense of bribery andwould not be selfincriminating. Lobby Lawscannot be reasonably classified as "an area permeated with criminal statutes. ” Rather,such laws deal with

“an essentially non-criminal and regulatory area of inquiry. ‘I Lobbyists do not constitute a “highly selective group inherently suspect of criminal activities, I’as used in California v. Byers, supra. Lobbying is practiced by many and diverse individuala and groups not only having legitimate goals but also exercising legitimate and legal methods. Itis only when the lobbyist exceeds the customary and traditional bounds of “lobbying” and attempts to confer thebenefit with the intent that the benefit so conferred will determine specific action thathe subjects himself to prorecution for bribery. Briber,y, on the other hand, connotes and has alwayr connoted the concept of corrupt payment for an official act done or to be done with the corrupt intent to influence the specific action of a public official byvirtue of such payment. Bribery is the giving of benefit with theintent that the benefit will determine specific action of the other person. Bribery is illegal, criminal and immoral activity. Lobbying, a long recognized and usually organized form of petitioning one’s government, is a legal activity and expenditures made in connection therewith are legal unless coupled with the essential elements of the offense ofbribery, i.e., the intent to influence the public servant in a specific exercise of his official duties by the conferrat of a “benefit” as thatterm is defined in $1.07(a)(6)

ofthe Penal Code. We entertain nodoubt, lherefore, that the Texas Legislature in enacting the foregoing statutes intended to deal with two separate and distinct public matters, i.e., penal provisions:tDkeep bribery a criminal offenre and thereporting provisions ofArticle 6252-9~ to require the reporting of legal lobby expenditures.

p. 1246The Honorable Robert 0. Smith, page I1 (H-265)

SUMMARY The requirement ofArticle 6252-9~. V. T.C.S., the Lobby Control Act, thatperiodic statements be filed ofexpenditures made todirectly communicate with members of the Legislative and Executive branches to influence legislation, is not rendered unconstitutional by virtue of the fact that such expenditures could conbtitute bribery if coupled with the intent to influence the’ public servant in a specific exercise ofhis official duties by the conferral of a “benefit” as that term is defined in $1.07(a) (6) of the Penal Code. Very truly yours, 

# L5i!fkCLa
. Attorney General of Texas

-

DAVID M. KENDALL, Chairman Opinion Committee

p. 1247