August 15, 1975

The Honorable James E. Laney Chairman House Administration Committee House ofRepresentatives State Capitol Austin, Texas 78711 Opinion No. H- 666 Re: Effect ofaRepresentative’s charging expenditure tothe State in excess ofthe amount authorized by law. Dear Representative Laney:

You mve asked our opinion onthe applicability ofarticle 39.01, Penal Code, to a situation inwhich a member oftheHouse of Representatives charges expenditures to the House in excess ofamounts 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, 421; Terre11 v. Kin& 14S.W. 2d 786 (Tex. Sup. 1929); Attorney General Opinions M-112 (1989, M-104 (1967) and M-101 (1967). The House ofRepresentatives ofthe 64th Legislature has enacted H.S.R. No. 4which provides 

### in part:

RESOLVED, That each member oftheHouse of’ Representatives ofthe 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 bythe Committee onHouse 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;

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(3) the unexpended balance ofa 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 ofthe 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 ofthe Penal Code could occur if a member ofthe House had exhausted any funds carried over from aprevious session and charged expenditures to the House ofmore than $3,000 in a month inwhich 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 toharm another, he intentionally or knowingly: 

### (1) commits an act relating tohis office or employment that constitutes an unauthorized exercise ofhis official power; (2) commits an act under color ofhis office or employment that exceeds his official power;

. . . . (b) For purposes ofSubsection (a)(2) ofthis section, a public servant commits an act under color ofhis office or employment ifhe 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) ofthis section is a Class A misdemeanor
. . . .

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A Representative’s authority to charge expenditures tothe 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 inH.S.R. No. 4 could constitute aviolation of section 39.01. The converse ofthis 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 aviolation occurs in an individual case depends onthefacts ofthe particular case. SUMMARY A member of the House ofRepresentatives 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 ofthe Penal Code. Very truly yours,

JOHN L. HILL 

# uAttorney General of Texas

DAVID MAKENDALL,AFirst Assistant

C. ROBERT HEATH, Chai,rman Opi~nionCommittee

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