August 15, 1975 

The Honorable James E. Laney 

Chairman 

House Administration Committee 

House of Representatives 

State Capitol 

Austin, Texas 78711 

Opinion No. H- 666 

Re: Effect of a Representative’s 

charging expenditure to the State 

in excess of the amount authorized 

by law. 

Dear Representative Laney: 

You mve asked our opinion on the applicability of article 39.01, Penal 

Code, to a situation in which a member of the House of Representatives 

charges expenditures to the House in excess of amounts authorized. 

The Legislature may provide by resolution for reimbursement of ” 

members’ official expenses during the interim between legislative sessions. 

Legislature Reorganization Act of 1961, V. T. C. S. art. 5429f, 4 21; Terre11 

v. Kin& 14 S. W. 2d 786 (Tex. Sup. 1929); Attorney General Opinions M-112 

(1989, M-104 (1967) and M-101 (1967). The House of Representatives of the 

64th Legislature has enacted H. S. R. No. 4 which provides in part: 

RESOLVED, That each member of theHouse of’ 

Representatives of the 64th Legislature be allowed 

a monthly operating budget for office staff and other 

operating expenses, including, but not limited to, 

office suppli.es, office equipment, postage, postage 

credit in an amount not to exceed a total of $3,000 at 

any one time, printing, telephone, travel, and other 

expenditures as authorized by the Committee on House 

Administration and subject to the following: 

(I) the budget shall not exceed the sum of $4,000 per 

month during the regular or called session; 

(2) the budget shall not exceed,the sum of $3,000 per 

month when the legislature is not in eesBion; 

p. 2914 
The Honorable James E. Laney - page 2 (H-666) 

(3) the unexpended balance of a monthly budget 

shall not carry forward to the next month or succeeding 

months and all expenditures shall be.charged against 

the budget for the month in which they were encumbered. 

A returning member of the house may be allowed to carry 

over an accumulated sum not to exceed $3,000 from the 

previous session; 

. . . . 

You have specifically asked whether a violation of section 39.01 of the 

Penal Code could occur if a member of the House had exhausted any funds 

carried over from a previous session and charged expenditures to the House 

of more than $3,000 in a month in which the Legislature is not in session. 

Your question is limited to expenditures made for official purposes and does 

not extend to totally private expenses which might be charged to the State. 

Section 39.01 provides in part: 

(a) A public servant commits an offense if, with intent 

to obtain a benefit for himself or to harm another, he 

intentionally or knowingly: 

(1) commits an act relating to his office or 

employment that constitutes an unauthorized exercise 

of his official power; 

(2) commits an act under color of his office or 

employment that exceeds his official power; 

. . . . 

(b) For purposes of Subsection (a)(2) of this section, a 

public servant commits an act under color of his office or 

employment if he acts or purports to act in an official 

capacity or takes advantage of such actual or purported 

capacity. 

(c) An offense under Subsections (a)(l) through (a)(4) of this 

section is a Class A misdemeanor . . . . 

p. 2915 
The Honorable James E. Laney - page 3 (H-666) 

A Representative’s authority to charge expenditures to the State is 

limited by H. S. R. No. 4. When he goes beyond the limits established in that 

resolution he exceeds his official power. Thus, in our opinion the act of 

intentionally or knowingly charging expenditures to the State beyond those 

authorized in H. S. R. No. 4 could constitute a violation of section 39.01. 

The converse of this principle is that an expenditure made solely due to 

carriessness or negligence would not constitute a violation of section 39.01, 

even though it could give rise to civil litigation. Of course, whether a violation 

occurs in an individual case depends on the facts of the particular case. 

SUMMARY 

A member of the House of Representatives who intentionally 

or knowingly charges expenditures to the State in excess of 

the amount authorized by H. S. R. No. 4 could be subject to 

prosecution under section 39.01 of the Penal Code. 

Very truly yours, 

JOHN L. HILL u Attorney General of Texas 

DAVID MA KENDALL,AFirst Assistant 

C. ROBERT HEATH, Chai,rman 

Opi~nion Committee 

p, 2916