Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 12,2005
Mr. Rex Emerson Opinion No. GA-0354
Kerr County Attorney
County Courthouse, Suite BA- 103 Re: Whether an elected public official may accept
700 Main Street payment for completing a terrn as president of a
Kerrville, Texas 78028 private association of elected public officials
(RQ-0324-GA)
Dear Mr. Emerson:
You ask whether an elected public official may accept payment for completing a term as
president of a private association of elected public officials and whether the association may offer
such a payment.’
Your question concerns a payment the County and District Clerks Association of Texas
(“CDCAT” or the “Association”) traditionally makes to its outgoing president. Request Letter,
supva note 1, at 1. The Association is a private, nonprofit corporation.2 Its bylaws state that the
Association’s purpose is “to promote professional standards, to provide a means for the education
of its members regarding the statutory and constitutional duties of the offices of the county clerk and
the district clerk, and to participate in the legislative, judicial and executive processes of state
government beneficial in the performance of the members’ duties.” See Bylaws, supra note 2, at 1.
The Association has five classes of members, of whom only the “active member” class
possesses voting rights. Id. at l-2. Active members are those “elected or duly appointed county
clerks, district clerks, and county and district clerks, presently serving in their respective offices,”
who are current on their dues and continuing education requirements. Id. at 2. The bylaws
‘See Letter from Honorable Rex Emerson, Kerr County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Mar. 9, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter
Request Letter].
2See Bylaws of the County and District Clerks Association, A Non-Profit Corporation (Jan. 15,2002) (on file
withopinion Committee, aZso available at http://www.texasclerks.org/pdf/Bylaws.pdf) [hereinafter Bylaws]. See also
Brief from Edward M. Shack, on behalf of the County and District Clerks Association of Texas, to Honorable Greg
Abbott, Texas Attorney General (Apr. 21,2005) ( on f 11e with Opinion Committee) (noting the Association’s status as
a nonprofit corporation under section 50 l(c)(3) of the Internal Revenue Code) [hereinafter CDCAT BriefJ; Tex. Att’y
Gen. LO-97-077, at 3 (discussing CDCAT’s status as a private association).
The Honorable Rex Emerson - Page 2 (GA-0354)
further state that the Association’s “officers shall be from the active membership.” Id. at 4. The
Association’s officers are president, vice president, secretary, treasurer, and the immediate past
president. Id. These officers comprise the executive board, which is responsible for everyday
operations. Id. at 5. The bylaws recommend that the Association’s offices alternate between county
and district clerks, with a county and district clerk serving as one of the officers at least every fifth
year. Id.
The president is the Association’s chief executive officer. Id. The Association informs us
that the president, “in general supervises and controls all the business and affairs of the Association,”
and that the president’s duties include:
l liaison with the Legislature
l chairing meetings of the Executive Board
l chairing and conducting meetings of the members and the Board of Directors
l appointing committees within the Association
l developing strategic and long term plans
l appointing numerous officers and positions within the Association
l promoting the purpose of the [Alssociation
l exercising any and all residual authority of the Association.
CDCAT Brief, supra note 2, at 1. The bylaws authorize reimbursement of directors’ expenses, but
state that “[alny other compensation is prohibited unless expressly approved by the board of
directors.” Bylaws, supra note 2, at 20. You state that traditionally, the Association has paid $5,000
to the outgoing president. Request Letter, supra note 1, at 1. You are concerned that the payment
may violate the Penal Code because it may be a prohibited honorarium under section 36.07 and a
prohibited gift under section 36.09. Id. at 2; see TEX. PEN. CODE ANN. $9 36.07(a), .09(a) (Vernon
2003).3 The Association, on the other hand, disputes that the payment is an honorarium, stating that
instead it is legitimate compensation for services rendered as president of a private association, not
rendered in the person’s capacity as an elected public official. See CDCAT Brief, supra note 2,
at 1. Thus, we construe Penal Code sections 36.07 and 36.09 to determine if they prohibit such
payments.
Statutory construction should focus initially “‘on the literal text of the statute in question’
because ‘the text of the statute is the law.“’ Getts v. State, 155 S.W.3d 153, 155 (Tex. Crim. App.
2005) (quoting Boykin v. State, 8 18 S. W.2d 782,785 (Tex. Crim. App. 1991), the Court of Criminal
Appeals’ “leading case in statutory interpretation”). A statute’s words and phrases are to be read in
context and given their common meaning unless they have acquired a technical or particular meaning
by definition or otherwise. See Sanchez v. State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999)
(applying the rule of construction in TEX. GOV’T CODE ANN. 8 3 11 .Ol 1(a)-(b) (Vernon 2005) to
‘Both offenses are Class A misdemeanors. TEX. PEN. CODEANN. 5s 36.07(c), .09(b) (Vernon 2003). The
punishment for a Class A misdemeanor is a fine not exceeding $4,000, confinement in jail for not longer than one year,
or both. Id. 5 12.21.
The Honorable Rex Emerson - Page 3 (GA-0354)
construe section 39.03 of the Penal Code, the offense of official oppression).4 If a statute’s language
is clear and unambiguous the statute is construed according to its plain meaning. Getts, 155 S.W.3d
at 155. Certain “extra-textual factors” such as legislative history may be considered only when a
statute is ambiguous or when a literal interpretation would lead to absurd results. See id. at 155; EX
parte Spann, 132 S.W.3d 390,393 (Tex. Crim. App. 2004).
We consider sections 36.07 and 36.09 in the context of chapter 36 of the Penal Code as a
whole. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). Chapter 36, entitled
“Bribery and Corrupt Influences,” deals generally with offenses involving a “public servant,” who
is an “officer, employee, or agent of government,” which includes “a county, municipality, or
political subdivision of the state.” See TEX. PEN. CODE ANN. $ 1,07(24)(B), (41)(A) (Vernon Supp.
2004-05). Chapter 36 defines four terms, only one of which, the broad definition of “benefit,” is
pertinent to your inquiry. See id. 5 36.01(3) (Vernon 2003) (a benefit in the chapter is “anything
reasonably regarded as pecuniary gain or pecuniary advantage”). Chapter 36 proscribes conduct
such as bribery, section 36.02; coercion of a public servant or voter, section 36.03; attempts to
influence the outcome of certain proceedings, section 36.04; and similar offenses. See id. $5 36.02-
.06 (Vernon 2003 & Supp. 2004-05). As discussed in more detail below, section 36.07 prohibits
public servants from accepting certain honoraria. See id. § 36.07 (Vernon 2003). Section 36.08
prohibits a public servant from accepting any benefit from a person subject to the jurisdiction of the
public servant or the public servant’s employer. See id. 4 36.08. Section 36.09 prohibits a person
from offering or conferring a benefit on a public servant that the public servant cannot legally accept.
See id. 9 36.09. Section 36.10 provides that sections 36.08 and 36.09 do not apply to certain
benefits, most notably to any benefit “for which a [public servant] gives legitimate consideration in
a capacity other than as a public servant.” See id. 9 36.10(a)(l) (Vernon Supp. 2004-05).
We first consider the offense of accepting an honorarium, proscribed in Penal Code section
36.07(a) as follows:
A public servant commits an offense if the public servant solicits,
accepts, or agrees to accept an honorarium in consideration for
services that the public servant would not have been requested to
provide but for the public servant’s official position or duties.
Id. ?J36.07(a) (V emon 2003). The term “honorarium” is not defined in the Penal Code, and the
word’s only other appearance in the current statutes sheds little light on its meaning. See TEX.
GOV’TCODEANN. 8 2205.036(b)(3) (V emon 2000) (providing that the State Aircraft Pooling Board
shall not provide air transportation to a passenger who “will perform a service or has performed a
service for which the passenger is to receive an honorarium, unless the passenger reimburses the
4The Penal Code provides, “Unless a different construction is required by the context, Sections 3 11 .O11,
311.012,311.014,311.015, and31 1.021 through31 1.032 ofchapter 311, Government Code (Code Construction Act),
apply to the construction of this code.” TEX. PEN. CODEANN. $ 1.05(b) (Vernon 2003).
The Honorable Rex Emerson - Page 4 (GA-0354)
board for the cost of transportation”). Also, we have not located a Texas judicial decision that
construes current section 36.07 or defines “honorarium” in any other context?
This office has reviewed the common meaning of the term “honorarium”:
An honorarium . . . is sometimes defined as a payment or reward,
usually in recognition of services on which custom or propriety
forbids any fixed business price to be set. It may be a free gift or
gratuitous payment, as distinguished from hire or compensation for
service[ s] . . . . Thus, the word is commonly used to embrace both the
concept of gift and of compensation.
Tex. Att’y Gen. Op. No. H-551 (1975) at 4 (citations omitted), see also Tex. Att’y Gen. Op. Nos.
GA-0256 (2004) at 2-3, DM-397 (1996) at 3-4; Op. Tex. Ethics Comm’n No. 19 (1992) at 2 n. 1.
Likewise, the Ethics Commission (the “Commission”) has noted that an “honorarium” is commonly
understood to be “‘a payment in recognition of acts or professional services for which custom or
propriety forbids a price to be set.“’ Op. Tex. Ethics Comm’n No. 401 (1998) at 2 n. 1 (quoting
definition from RANDOM HOUSE UNABRIDGED DICTIONARY 9 18 (2d ed. 1993)).
The Commission, authorized to advise about the application of Penal Code chapter 36,6 has
determined that fees for speaking, teaching, and certain other services are included in the term
“honorarium.” Op. Tex. Ethics Comm’n Nos. 305 (1996) at 1 n. 1 (speaking and teaching fees can
be an honorarium); 425 (2000) at 2 (severance pay and moving expenses paid to an employee who
has accepted state employment may constitute an honorarium); 416 (1999) at l-2 (payment of a
research grant to a legislative employee pursuing a graduate degree may be an honorarium); 294
(1995) (stating that acceptance of payment for teaching may be an honorarium). The Commission
has concluded that an honorarium payment “in consideration for services” can be either payment of
contractual consideration or payment “in appreciation for” such services. Op. Tex. Ethics Comm’n
No. 97 (1992) at 1. And the Commission has determined that a payment may be an improper
honorarium regardless of whether the person offering the payment is also the person requesting
services. Op. Tex. Ethics Comm’n No. 425 (2000) at 2 n.3. However, the Commission has not
attempted to establish the parameters of the term “honorarium” as it appears in section 36.07. Op.
Tex. Ethics Comm’n No. 192 (1994) at 2 n.4 (stating that the “Ethics Commission has not
considered whether there are circumstances in which a fee may not be an honorarium”); accord Op.
‘Formerly, section 36.07 was assigned to the offense of compensating a public official for past official behavior.
See Act of May 24,1973,63d Leg., R.S., ch. 399,s 1,1973 Tex. Gen. Laws 883, amended by Act of June 2,1975,64th
Leg., R.S., ch. 342, 8 11, 1975 Tex. Gen. Laws 915, repealed by Act of May 28, 1983, 68th Leg., R.S., ch. 558, 9 3,
1983 Tex. Gen. Laws 3238; see also Garza v. State, 579 S.W.2d 220 (Tex. Crim. App. 1979) (upholding conviction of
bail bondsman under former section 36.07 for paying a county jailer for referrals). That offense was repealed in 1983,
and in 199 1, section 36.07 was reassigned to the offense of acceptance of a prohibited honorarium. See Act of May 27,
1991,72dLeg.,R.S., ch. 304, $4.03, 1991 Tex. Gen. Laws 1321-22,amendedbyActofMay29,1993,73dLeg.,R.S.,
ch. 900, $ 1.01, 1993 Tex. Gen. Laws 3586.
6See TEX. GOV’T CODEANN. 6 57 1.09 1(a) (Vernon 2004).
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Tex. Ethics Comm’n Nos. 305 (1996) at 2 n. 1; 3 12 (1996) at 2 n. 1. For purposes of this opinion,
we assume the payment you describe is an honorarium and turn to whether it is prohibited under
Penal Code section 36.07.
From the plain language of the statute, whether an honorarium was paid “in consideration
for services that the public servant would not have been requested to provide but for the public
servant’s ofIicia1 position or duties” depends on the motivation of the person or persons requesting
the public servant to provide the services. TEX. PEN. CODEANN. 5 36.07(a) (Vernon 2003); see also
Op. Tex. Ethics Comm’n No. 305 (1996) at 2 n.2. As the Commission has stated, “an honorarium
is permissible as long as the public servant’s official status was not a deciding factor in the decision
to request the public servant to perform the services at issue.” Id. at 1.
Recently, in Attorney General Opinion GA-0256, this office considered whether section
36.07 applies when a commissioned peace officer receives compensation for working off-duty for
a private employer. Tex. Att’y Gen. Op. No. GA-0256 (2004). The opinion concluded that section
36.07 would not apply to a peace officer’s typical off-duty employment because generally it is a
commissioned officer’s experience and training that is of value to a private employer, not the
officer’s official status with a particular law enforcement agency. Id. at 3-4. Similarly, the
Commission has determined that the honorarium provision in section 36.09 would not prohibit a city
employee from performing services as a fingerprint expert for a defense attorney in another state,
based on the assumption “that a fingerprint expert is generally asked to perform services because of
his expertise and not because he is employed by a particular city.” Op. Tex. Ethics Comm. No. 3 12
(1996) at 1; see also Op. Tex. Ethics Comm. No. 305 (1996) at 1 (university professors may be
compensated for performing outside services sought “because of their academic expertise and not
because they hold a position at a particular institution”).
Here, the Association requires its officers to be active members. Because it is an association
of public servants, its officers also will be public servants. But as discussed earlier, whether section
36.07 prohibits an honorarium to a public servant depends on the motivation ofthe person or persons
requesting the public servant to provide the services. See Op. Tex. Ethics Comm’n No. 305 (1996)
at 2 n.2. The Association selects its president by majority vote of its active members. Although we
cannot know the motives of the various Association members when they voted for the president,
presumably they considered such factors as pertinent experience and commonality of interest. We
believe it unlikely that a person is elected president because the person serves as the clerk of a
particular county or district. Moreover, a finder of fact could conclude that a payment made to the
outgoing president is for services rendered as president of a private association, unrelated to the
person’s official position as clerk of a particular county or district. Chapter 36 (“Bribery and Corrupt
Influence”) does not prohibit a public servant from accepting all compensation from private sources.
As the Commission has stated, “Penal Code chapter 36 restricts the acceptance ofbenefits by [public
servants] but permits a [public servant] to accept a fee for work performed in a capacity other than
a [public servant] . . . .” Op. Tex. Ethics Comm’n No. 408 (1998) at 1. If a person is elected
president of a private association because of the person’s skills and abilities to perform the duties
of president and not because the person is clerk of a particular county or district, then acceptance of
The Honorable Rex Emerson - Page 6 (GA-0354)
fair compensation for services as the association’s president would not violate Penal Code section
36.07. See TEX. PEN. CODE ANN. $ 36.07(a) (Vernon 2003).
We next consider your second question-whether a private association violates section 36.09
of the Penal Code by making a payment in consideration of the outgoing president’s prior year’s
services when that person is a county or district clerk and by definition a public servant. Section
36.09 broadly prohibits a person from offering, conferring, or agreeing to confer a benefit on a public
servant knowing that the public servant is prohibited by law from accepting it. See TEX. PEN. CODE
ANN. 8 36.09(a) (Vernon 2003). As explained above, it is unlikely that acceptance of the described
payment would be prohibited by section 36.07. In any event, section 36.09 does not apply to “any
. . . benefit to which the public servant is lawfully entitled or for which he gives legitimate
consideration in a capacity other than as a public servant.” Id. 8 36.1 O(a)( 1) (Vernon Supp. 2004-
05). It appears that the outgoing president receives a payment for services as an officer of a private
association, not in the person’s capacity as a local county or district clerk. If that is the case, then
section 36.09 does not prohibit the payment.
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SUMMARY
A payment by a private association of public officials,
compensating one of its members for services as its immediate
past president, does not per se violate Penal Code sections 36.07,
concerning prohibited honoraria, or 36.09, concerning the offer
of a gift to a public servant. Section 36.07 does not prohibit fair
compensation to a person for services as the president of a private
association, assuming the person was elected president because of the
person’s skills and abilities and not because the person is a public
servant of a particular county or district. Section 36.09 does not
prohibit payment to a person for legitimate consideration rendered in
a capacity other than as a public servant.
Very truly yours,
Attom&&&al of Texas
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Connnittee
William A. Hill
Assistant Attorney General, Opinion Committee