THSC ATHBRNEY GENERAL 

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 if he 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 of hir 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 

an offenre 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 of his official powers or a specific performance 

of him official dutiecr. 

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

. 

“(c) A voter commite an ofienre if he knowingly 

rcceptr or agree8 to accept any bemflt on the reprerentation or understanding that he will not vote 

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 of the second degree. ‘I 

The Penal Code provider &t Section 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 in whore 

welfare the bene5ciary ia intererted. ‘I 

You que&ion the kct that, apparently, the briber ir guilty of the 

crime if he “offers, confera, or agreea to confer” a benefit with 

the fntant to influence the recipient while the recipient. under ‘S& 

l ectione (b) and (c), qprently commitr the offenee only if he l ctr 

“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 of bribery 

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 in the 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 of the Legirlature or executive or judicial 

officer who rhall rolicit, demand or receive . . . any 

money, appointment, . . . thing of value or employmen&.; ‘for hir vote or official influance, , . . or with 

any understanding expreraed or implied, that hir 

vote or official action rhall be in any way influenced 

thereby. . . shall be held guilty of bribery, . . . ” 

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

Article 158 

“Whoever rhall bribe or offer to bribe any executive, legirlative or judicial offlcer after hir election 

or appointment, and either before or after he rhall 

have qualified or entered upon the dutier of him 

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 in hir 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 am an officer, or am much employee or agent, 

rhall be guilty of bribery and rhall be confined in the 

penitentiary not lerr than two nor more than five 

year,, or be confined in jail for not lerr than one 

month nor more than two yeara, or be fined not lera .’ 

than Five ‘Hundred Dollarr nor more than Five 

Thousand Dollarr, or by both much firm and imprironment. I’ 

p. 1239 
The Honorable Robert 0. Smith, page 4 (H-265) 

Article 159 

“Any legir,lative, executive or judicial officer, 

or any employee or agent, or perron holding a 

position of honor, 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 a bribe, or 

agree or consent to accept a bribe under an 

agreement or with an understanding that his act, 

vote, recommendation, opinion or judgment shall 

be done, influenced or given in any particular 

manner, or upon a particular aide of any 

question, matter, contract, cause or proceeding 

which ia or may thereafter be pending, or which 

may be brought or come before him in hi8 official capacity, or in his place, agency or position 

of employment, or in’liis position of honor, trust 

or profit, or that he shall make any particular 

nomination or appointment, or shall do any other 

act, or omit to do any act, in violation of his duty 

as an officer, or hia posifi’on. agency or employment shall be‘guilty of bribery and Bhall be 

punished as is provided in Section 1 of this 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 in hir employment, agency or place or 

position of honor, trust or profit rhall be guilty 

of bribery and rhall be confined in tha .penitentiary 

not leas than two nor more than ten yearn, or be 

confined in jail for not leer than one month nor 

more than two years, or be fined not lenr than Five 

Hundred Dollar8 nor more than Five Thourand Dollarr, 

or by both such fine and imprisonment. ” 

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

Both of these articles were repealed by the enactment of the 1973 

Penal Code [Acts 1973. 63rd Leg., ch. 399, sec. 3(a)]. 

It is our opinion that the requirements of Articles 158 and 159 

were substantially the same as those of the Constitution and those 

of Sec. 36.02 of the new Penal Code. In our 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, 242 S. W. 221 (Tex. Grim. 

1922). And Sowells v. State, 270 S. W. 558 (Tex. Grim. 1925) holding 

that the intent of the 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 of hio official powers or a 

specific performance of his official duties. As a practical matter, 

many and perhaps most cases will depend on evidence as a means 

of establishing the element of intent that an understanding was 

reached or that there was a representation, express or implied, 

that the benefit was in payment for an action of the public official. 

However, we are not prepared to state categorically that these 

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 and the Lobby Control Act requires reporting 

of total expenditures as expenditures with intent 

to influence, then it appears that the Lobby Control 

Act.. . is unconstitutional. ” 

Like bribery laws, lobby control laws did not originate with the 

63rd Legislature. In 1957 the Legislature adopted two acts, later 

codified as Articles 183-1 and 183-2 of the Penal Code. 

p. 1241 
. 

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

Article 183-l (Acts 1957, 55th Leg., lrt c. s., ch. 9, p. 17) was 

known as the Reprerentation Before the Legislature Act and generally 

regulated lobbying in that arena. Section 3 of the Act (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 of the House of Representatives as provided herein: 

“(a) Any person who, for compensation, undertakes 

by direct communication to promote or oppose the passage 

of any legislation by the Legislature or the approval or veto 

thereof by the Governor. 

‘j(b) Any person who, without compensation but acting 

for the benefit of another 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 on his own behalf and 

without compensation, makes an expenditure, or expenditures, totaling in excess of Fifty Dollars ($50.00) during 

a session of the 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 and fifteenth 

day of each calendar month, rucceeding a month during 

any part of which the Legislature is in session, so long 

as hir activity continues, file with the Chief Clerk of 

the House 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. 1242 
The 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 in Section 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, the Act 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. It calls 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 

.and executive offices. Like former Article 183-1, V. T. P. C. , it required 

not,only~~gistiatiSi but ilsoth&‘.filing of anactivities report. 

“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 

” (2) between the let and 10th day of each month 

immediately subrequent to the last month in a 

calendar quarter covering the actitities during the 

previous quarter. 

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

” (b) The report shall be written, verified, and 

contain the following information: 

” (1) the total expenditures made by the rdgistrant 

for directly communicating with a member of the 

legislative or executive branch to influence legislation, 

including 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. 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 on his behalf, or by any other person 

appearing on his behalf, together with a statement of the 

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 5 shall provide a full, verified 

account of his expenditures to the 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 that the reporting requirement would involve self incrimination, and you cite to us Albertron v. Subversive Activities Control 

Board, 382 U.S. 70 (1965); Marchetti v. United States, 390 U.S. 39 (1968); 

Grosso v, United States, 390 U.S. 62 (1968); _Haynes v. Unit&d States, 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 an order of the Subversive Activities Control 

Board, requiring individuals to register ao communists, a crime 

under the Smith Act (18 U.S. C. 2385); Marchetta was convicted of 

failing to register and pay a tax on the business of accepting wagers, 

itself illegal; Grosso involved the failure to pay an excise tax impoaed 

on wagers where compliance would have involved self incrimination; 

Haynes involved self incrimination in registering a sawed-off shotgun; 

Leary was a prosecution, inter alia, for failing to pay a transfer tax 

on marijuana imported into the United States; Byarr involved a hit-andrun statute requiring a driver involved in a motor vehicle accident 

to stop and give his name and addrerr. 

The Bve case, unlike the others, upheld the questioned statute. 

Referring to the sb ove cases which you have cited, Chief Justice Burger 

said: 

19 

. . . In each of these 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’ and the 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 (7th Cir. 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 a member of the legislative 

or executive branches of the government to influence legislation, would 

incriminate himself under Chapter 36 of the Penal Code seems to assume 

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 to be reported, i.e., 

postage and telegraph; publication and advertising; travel and fees;: 

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 and would not be selfincriminating. Lobby Laws cannot 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. 

It is only when the lobbyist exceeds the customary and traditional 

bounds of “lobbying” and attempts to confer the benefit with the intent 

that the benefit so conferred will determine specific action that he 

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 by virtue of such payment. Bribery is the giving of benefit with the intent 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 of bribery, i.e., the 

intent to influence the public servant in a specific exercise of his official duties by the conferrat of a “benefit” as that term is defined in 

$ 1.07(a)(6) of the Penal Code. We entertain no doubt, lherefore, that 

the Texas Legislature in enacting the foregoing statutes intended to 

deal with two separate and distinct public matters, i.e., penal provisions:tD keep bribery a criminal offenre and the reporting provisions 

of Article 6252-9~ to require the reporting of legal lobby expenditures. 

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

SUMMARY 

The requirement of Article 6252-9~. V. T. C. S. , 

the Lobby Control Act, that periodic statements be 

filed of expenditures made to directly 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 of his 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