Cumulative Digest of Ethics Advisory Opinions

1992 | 1993 | 1994


1992 Opinions

EAO No. 1 (1992) – Article 6252-9b, V.T.C.S., as amended, requires "every state officer" to file an annual financial disclosure statement. This includes appointed officers who hold non-salaried positions. This current requirement to file a statement based on the previous year's financial activity is not retroactive or unconstitutional as to those appointed officers who were appointed before the amendment's effective date.

EAO No. 2 (1992) – ** Opinion History ** A registrant filing an initial registration and renewal form under section 305.005 of the Government Code must disclose compensation actually received at that time for the year, either by actual amount or as a category amount. Anticipated compensation is not to be reported.

EAO No. 3 (1992) – A person who communicates with a member of the executive or legislative branch of state government is not required to register as a lobbyist under chapter 305 of the Government Code if the person makes no expenditures other than expenditures for his own travel and lodging and receives no compensation other than reimbursement for his own travel and lodging.

EAO No. 4 (1992) – An association's transfer of a free pass for use of recreational facilities would be a direct communication for purposes of chapter 305 of the Government Code.

Such a transfer for the purpose of generating goodwill among members of the legislative and executive branches and for the purpose of giving legislators insight into industry problems would be to influence legislation or administrative action.

The transfer of such a pass would be reportable as "entertainment." Thus, an association may provide such a pass only if the registrant is present each time the pass is used.

EAO No. 5 (1992) – A lawyer who has met the compensation or reimbursement threshold and who represents a taxpayer in a hearing before the Office of the Comptroller of Public Accounts for redetermination or refund is not engaging in an activity or communication that would require the lawyer to register as a lobbyist.

A lawyer who has met the compensation or reimbursement threshold and who communicates with the legal representative of a state agency concerning litigation to which the agency is a party is not engaging in activity or communication that requires registration as a lobbyist.

A lawyer who has met the compensation or reimbursement threshold and who makes a request for information is not engaging in activity or communication that would require the lawyer to register.

A lawyer who has met the compensation or reimbursement threshold and who requests a written opinion from the agency, which cites statutory and other law in support of a particular viewpoint, is not thereby engaging in activity or communication that would require the lawyer to register.

EAO No. 6 (1992) – The determination to refuse a political contribution and the return of a political contribution are distinct acts for purposes of title 15 of the Election Code. Once a determination to refuse a contribution has been made, the contribution must be returned within 30 days after the deadline for filing a report for the reporting period during which the contribution is received.

EAO No. 7 (1992) – A person filing a report under title 15 of the Election Code may not substitute a form in place of the prescribed form or a page in place of a page of the form adopted by the commission unless the commission has approved the use of the substitute form. For an attachment to be approved, the attachment must be of the same paper size as the prescribed form. The information must appear on the attachment in substantially the same format as it would have appeared on the prescribed form.

EAO No. 8 (1992) – A person who intends to file a sworn complaint with the Ethics Commission may discuss with the press or the public the fact the he intends to file a complaint and the contents of the proposed complaint. A person who has filed a sworn complaint with the commission may discuss with the press or the public the fact that he has filed a complaint and the contents of the complaint.

The commission must give notice of a sworn complaint to the respondent within 14 days after the commission receives the complaint, and as part of that notice, the commission must identify the complainant and the nature of the complaint.

The respondent to a sworn complaint filed with the commission may discuss the fact that the complaint has been filed and the contents of the complaint.

The Ethics Commission may release to the public the contents of a sworn complaint, including the name and address of the complainant, if that information is entered into the record of a formal hearing or a judicial proceeding.

EAO No. 9 (1992) – Nonprofit water supply corporations are not political subdivisions for purposes of chapter 305 of the Government Code and Ethics Commission rules adopted under that chapter.

EAO No. 10 (1992) – No provision in the Texas Election Code prohibits a corporation from being established just to form a political committee. There are no restrictions in the Election Code on who may make political contributions to a corporate political committee. A political committee whose principal purpose is limited to supporting or opposing an identified city measure may not file its campaign treasurer appointment with the Ethics Commission. It is required to file its campaign treasurer appointment with the city secretary. The improper filing of a campaign treasurer appointment can be the basis of a sworn complaint to the Ethics Commission.

EAO No. 11(1992) – Subsection (a) of section 7A of article 6252-9b, V.T.C.S., which prohibits a former board member or executive head of a regulatory agency from communicating or appearing before the agency to influence any agency action for two years after the end of the person's tenure with the agency, applies only to a person who ceases service with the state on or after January 1, 1992.

EAO No. 12 (1992) – A person required to register as a lobbyist may not provide, and a legislator may not accept from a person required to register as a lobbyist, transportation and lodging in connection with a hunting trip. Subject to certain monetary limitations and reporting requirements, a lobbyist may provide, and a legislator may accept, food in connection with a hunting trip and a place to hunt. A legislator may accept food in connection with a hunting trip and the provision of a place to hunt if the person providing such food and entertainment is present.

EAO No. 13 (1992) – ** Opinion History ** A candidate or officeholder may use political contributions to purchase an automobile to be used for campaign or officeholder purposes. An asset purchased in whole or in part with political contributions is subject in its entirety to the restrictions set out in title 15 of the Election Code. A candidate or officeholder may not, under title 15 of the Election Code, remove a portion of the asset from those restrictions by paying for a portion of the asset with personal funds. State Ethics Advisory Commission Opinion No. 3 (1984), which concluded that such bifurcation was permissible, is hereby overruled.

EAO No. 14 (1992) – Applying for a permit with a regulatory agency is excepted from the application of the lobby statute, chapter 305 of the Government Code. Negotiations with regulatory agencies in regard to permits are excepted from the application of the lobby statute as long as the negotiations are in regard to whether an applicant does in fact meet existing agency standards of general application.

EAO No. 15 (1992) – The registration and reporting requirements of chapter 305 of the Government Code are not applicable, in the context of a bank examination, to responses to questions from bank examiners and discussions regarding loan quality. Nor are those requirements applicable to the submission of a charter application to the Banking Department of Texas or the submission of a notice of change in control. Further, those requirements do not apply to the provision of information intended to persuade the agency that the agency should take certain action in regard to the application or notice, as long as the information is intended to show compliance with standards of general applicability.

EAO No. 16 (1992) – A person is not required to register under chapter 305 of the Government Code if direct communication and preparation to influence administrative action constitute no more than five percent of the person's compensated time during a calendar quarter. The registration and reporting requirements of chapter 305 do not apply to the provision of "merely clerical assistance in producing direct communication" to influence administrative action. The registration and reporting requirements of chapter 305 do not apply to a discussion between a lawyer and a member of the executive branch about whether a proposed trademark was in fact confusingly similar to an already existing trademark.

EAO No. 17 (1992) – A legislator may not accept a fee for a speaking engagement that would not have been requested but for the legislator's official position or duties. A legislator may accept reimbursement for transportation and lodging expenses incurred in connection with a speaking engagement at a conference or similar event. At such an event a legislator may accept meals or reimbursement for actual expenses for meals.

EAO No. 18 (1992) – Neither section 305.024 of the Government Code nor section 36.07 of the Penal Code precludes a nonprofit organization from paying the necessary transportation, meals, and lodging expenses for a member of the legislative or executive branch to speak at a conference or similar event hosted by the organization if the member's participation is more than "merely perfunctory." If the nonprofit organization is registered under section 305.005, these expenses must be reported.

EAO No. 19 (1992) – Section 36.07(a) of the Penal Code prohibits a public servant from accepting or soliciting a fee for speaking if the public servant would not have been requested to speak but for his official position or duties. The prohibition extends to a request for or acceptance of a payment made to a third party if the speaker agrees to speak in exchange for such payment.

EAO No. 20 (1992) – Ethics Commission rule 40.5 exempts from the compensation threshold of the lobby statute paid testimony by any person in a proceeding of an adjudicative nature of the type authorized by or subject to the Administrative Procedure and Texas Register Act, article 6252-13a, V.T.C.S.

EAO No. 21 (1992) – State officers who are physicians do not have to include on their financial disclosure reports information that is made confidential by the Medical Practice Act.

EAO No. 22 (1992) – Section 4(f) of article 6252-9b, V.T.C.S., which requires state officers to file annual financial statements, does not conflict with section 26 of the Public Accountancy Act of 1991, article 41a-1, V.T.C.S. The requestor presents no facts to indicate that by disclosing the name of a client and category of fee paid by that client, state officers who are accountants would be revealing information made confidential by the Public Accountancy Act. If a particular SEC rule makes financial information required by article 6252-9b confidential, the person subject to that rule would have to keep such information confidential.

EAO No. 23 (1992) – Only the highest ranking employee of a state regulatory agency would be an "executive head" of the agency for purposes of section 7A(a) of article 6252-9b, V.T.C.S. A former employee whose resignation was effective on January 31, 1992, is subject to section 7A(b) of article 6252-9b, even if the former employee took vacation time on all working days in January. A former state employee covered by section 7A(b) may not give his new employer advice in regard to a matter in which the former state employee participated during his tenure with the state agency.

EAO No. 24 (1992) – An unsalaried state officer may make contributions to candidates for public office or to candidates for the Office of Speaker of the House of Representatives but may not expend more than $100 for the cost of correspondence to aid or defeat the election of a speaker candidate.

EAO No. 25 (1992) – A judge may use political contributions to purchase electronic equipment for official use in the judge's courtroom or chambers but may not convert the asset to personal use. The asset would be subject to the various provisions of title 15 of the Election Code applicable to an asset purchased with political contributions.

EAO No. 26 (1992) – The Texas Planning Council for Developmental Disabilities is not a "state agency" for purposes of article 6252-9b, V.T.C.S.

EAO No. 27 (1992) – A designated member of the Interagency Council on Sex Offender Treatment is a state officer for purposes of article 6252-9b, V.T.C.S. A designated member must file a personal financial disclosure form.

EAO No. 28 (1992) – ** Opinion History** Members of the State Committee of Examiners for Speech-Language Pathology and Audiology, the Texas State Board of Examiners of Professional Counselors, the Texas State Board of Examiners of Dieticians, the Advisory Board of Athletic Trainers, and the Texas Medical Disclosure Panel are "state officers" who must file financial disclosure reports pursuant to article 6252-9b, V.T.C.S.

Financial disclosure statements that are filed in 1992 must include information about the previous year's financial activity, but no penalty attaches to any activity that was not prohibited under the law in effect at the time that activity occurred. Any service as a state officer during the period between and including January 1 to April 30 of the year in which the statement has to be filed triggers the filing requirement.

The Ethics Commission is authorized to adopt a financial disclosure form, which must include information required by the legislature. It is immaterial that the information required is set out in the Penal Code rather than article 6252-9b, V.T.C.S. Where the statute specifically requests information only about the "state officer," he is not required to provide similar information concerning his spouse or dependent children. A person filing a financial disclosure statement must include a description of his employment position on the form.

Article 6252-9b, V.T.C.S., does not contain civil or criminal penalties for violations of the code of conduct set out in section 8 of the act. Failure to timely file a financial disclosure statement is punishable by a fine of the commission. Failure to file a statement at all is a Class B misdemeanor.

EAO No. 29 (1992) – A state officer is not required to report on his personal financial statement a gift required to be reported by the donor under chapter 305 of the Government Code. The waiver of a fee is reportable as a lobby expenditure under chapter 305 of the Government Code. If the fee covers items in different reporting categories, the fee should be apportioned and reported in the applicable categories.

EAO No. 30 (1992) – A person required to register as a lobbyist may make a lobby expenditure for transportation between a local airport and the site of a local golf tournament. A state officer is not required to report on his financial disclosure statement a prize awarded by an organization required to register as a lobbyist. Expenditures reported under section 305.0062(a)(8) of the Government Code need not be reported under any other section of chapter 305.

EAO No. 31 (1992) – Chapter 305 of the Government Code does not apply to gifts made to a state agency rather than to individual officers or employees of a state agency. Whether a particular agency has authority to accept a gift is governed by other law, over which the Ethics Commission has no interpretive authority.

Expenditures for an educational program presented to employees of a state agency in their capacity as state employees would not be expenditures reportable under chapter 305 of the Government Code if the program primarily benefits the agency rather than the individual.

State colleges and universities are "state agencies" for purposes of chapter 305 of the Government Code. A private company that purchases meals for employees of a state college or university is engaging in lobby activity if the company's purpose in purchasing the meals is to communicate to influence action by the college or university.

EAO No. 32 (1992) – ** Opinion History** The name of the general-purpose committee must include the name of each corporation that makes a political expenditure to finance the establishment or administration of the committee.

EAO No. 33 (1992) – The Guaranteed Student Loan Corporation is not a state agency or a political subdivision for purposes of chapter 305 of the Government Code. Therefore, an employee of the Guaranteed Student Loan Corporation must register as a lobbyist if he meets either the compensation threshold or the expenditure threshold in the lobby statute. Communications made to the Guaranteed Student Loan Corporation are not subject to regulation under the lobby statute.

EAO No. 34 (1992) – A person who is registered as a lobbyist may give a party to which all legislators and their staffs are invited, at which the registrant pays for the band and individuals pay for their own food and drink. The lobbyist must report the expenditures for the band on a monthly lobby activity report as an event to which all members of the legislature were invited. Since the party is an entertainment event, the lobbyist must comply with the chapter 305 requirement that the lobbyist be present at the event.

EAO No. 35 (1992) – A candidate who owns 50 percent of the stock in a corporation engaged in the advertising business may make a payment from a political contribution to the corporation to purchase advertising services and supplies if the payment is in the amount necessary to reimburse the corporation for actual expenditures. A payment greater than that amount would be in violation of section 253.041. A payment less than that amount would be an impermissible corporate contribution.

EAO No. 36 (1992) – As a general rule, the receipt of a plaque could not be reasonably regarded as pecuniary advantage and is therefore not a benefit for purposes of chapter 36 of the Penal Code.

EAO No. 37 (1992) – An expenditure on a nonpartisan notice to inform employees about an election and encouraging people to register to vote is not a political expenditure because it is not made in connection with a campaign for an elective office or on a measure, nor is it an officeholder expenditure. Therefore a corporate expenditure to provide such a notice is not prohibited by the Election Code.

EAO No. 38 (1992) – An incorporated trade association may not give individuals the option of making a payment for registration at a convention to a political committee rather than to the trade association. There would be exceptions to this rule for contributions to a political committee for supporting or opposing measures exclusively or for expenditures to finance the establishment or administration of a general-purpose committee.

EAO No. 39 (1992) – A person who receives compensation for communicating directly with members of the legislative or executive branch to influence legislation or administrative action is required to register not later than the fifth day after the date on which the person or the person's employee makes the first direct communication that gives rise to the registration requirement.

EAO No. 40 (1992) – A legislator who received no compensation or made no expenditures in connection with communications to agency officers or employees in regard to a pending permit application would not be subject to registration or reporting under chapter 305 of the Government Code.

EAO No. 41(1992) – The statutes amended by Senate Bill 1 of the 72d Legislature do not prohibit a legislator from accepting employment from a special district.

EAO No. 42 (1992) – Section 305.026(a) of the Government Code requires reporting of any expenditure of public funds during a calendar year to compensate or reimburse the expenses over $50 of any person for the purpose of communicating directly with a member of the legislative branch to influence legislation. For purposes of section 305.026(d), the charter, by-laws, or other organizational rules of an association would determine what type of political subdivision is eligible for membership in the statewide association. A person employed by a statewide association may be excepted under subsection (c) regardless of the percentage of the eligible political subdivisions that make up its membership.

EAO No. 43 (1992) – A person who does not communicate with a member of the legislative or executive branch is not required to register as a lobbyist, even if that person is compensated to perform work for someone else who communicates with members of the legislative or executive branch to influence legislation or administrative action. If a person communicates directly with a member of the legislative or executive branch to influence legislation or administrative action, however, the time that person spends on activities such as conducting research to prepare for the communication is included in calculating whether the registration threshold has been met and in calculating the amount of compensation that must be reported.

EAO No. 44 (1992) – For two years after the date a former board member of the governing body of a regulatory agency ceases to be a member of the agency, that person is prohibited from making an appearance before or communicating with current officers and agency employees, with the intent to influence, on behalf of any person in connection with any matter on which the person seeks official action. The prohibition applies to appearances or communications that the former official makes on his own behalf, except as limited by the due process clause of the United States Constitution. The prohibition applies regardless of whether the former official initiates the contact with his former agency or whether the action sought is ever taken.

EAO No. 45 (1992) – An officer or employee of a school district may not use or authorize the use of school personnel or equipment for the distribution of political advertising.

EAO No. 46 (1992) – If a registrant makes expenditures to sponsor a reception for a legislator, they are to be reported under chapter 305 of the Government Code, not title 15 of the Election Code, if a purpose of the reception is to communicate with the legislator to influence legislation and if the expenditures are of a type required to be reported under chapter 305. If the registrant is not making the expenditures for the reception to influence legislative action or if the expenditures are not of the type required to be reported under chapter 305, the expenditures must be reported as political contributions if they meet either the definition of "officeholder contribution" or "campaign contribution" in title 15.

If a registrant purchases his own ticket to attend a political fundraiser, the candidate or political committee receiving the payment must report the payment under title 15. If a registrant purchases a ticket for a legislator to communicate with the legislator to influence legislation, the registrant must report the expenditure under chapter 305 of the Government Code. If a registrant pays the costs of a political fundraiser and has both the intent to communicate with one or more members of the legislative branch to influence legislation and also the intent that the expenditures be used in connection with a campaign, the registrant should report the expenditures under the lobby statute.

A candidate for the legislature is a "member of the legislative branch" for purposes of chapter 305 of the Government Code. A cash campaign contribution that is delivered personally must be reported by the recipient under title 15, not by the donor under chapter 305 of the Government Code.

EAO No. 47 (1992) – An expenditure of political contributions for one of the purposes set out in section 254.204 is not a personal use of political contributions under title 15.

EAO No. 48 (1992) – An organization that is registered as a lobbyist and has several registered employees is not required to report on its lobby activity report reimbursements to those employees for lobby expenditures. The registered employees must list those reimbursed expenditures on their respective lobby activity reports.

If a registered employee assists another employee in lobby activities and acts at the other's direction, the assisted employee must list the assisting employee on his lobby activity report for purposes of Government Code section 305.005(f)(5). Circumstances of mutual assistance may lead to each registered employee listing the other as an assistant.

An individual who communicates to influence, on behalf of an organization of which he is a member, is not required to register as a lobbyist unless he crosses either the compensation threshold or the expenditure threshold under chapter 305 of the Government Code, the lobby statute. Whether communications on behalf of the organization that "coincide" with the interests of the member's employer are communications for which the member is compensated is a fact question. Members of a nonprofit organization are not "clients" for purposes of section 305.005(j).

EAO No. 49 (1992) – The uncompensated provision of personal services in connection with a campaign is not an expenditure required to be reported under chapter 305 of the Government Code. Rather, it is a political contribution subject to title 15 of the Election Code.

EAO No. 50 (1992) – ** Opinion History** Ethics Advisory Opinion No. 13 (1992) applies to items leased with political contributions as well as items purchased with political contributions. Before June 4, 1992, the date Ethics Advisory Opinion No. 13 was issued, reliance on State Ethics Advisory Commission Opinion No. 3 (1984) was appropriate.

EAO No. 51 (1992) – A state employee who, at the direction of his employing agency, attends a seminar to acquire information relevant to his job is not obtaining a "benefit" for purposes of chapter 36 of the Penal Code.

EAO No. 52 (1992) – The Texas Low-level Radioactive Waste Disposal Authority is a "regulatory agency" for purposes of article 6252-9b, section 7A. The fact that the interests of a private employer coincide with the interests of a state agency does not relieve a former employee of the state agency from the burdens of section 7A.

EAO No. 53 (1992) – A person who registered as a lobbyist in March 1991, but who never met the then applicable threshold requirements for registration, was subject to the lobby reporting requirements in effect at that time. A person who chooses to register as a lobbyist is subject to the various requirements of the lobby statute.

EAO No. 54 (1992) – An employee of a state agency who delivers a speech and accepts lunch provided in connection with the speech is not prohibited from accepting the meal by chapter 36 of the Penal Code.

EAO No. 55 (1992) – A statement that an omission that led to a failure to file a lobby report on time is "inadvertent and unintentional" is not, standing alone, a basis for waiver of a fine.

EAO No. 56 (1992) – If a registered lobbyist pays for his own meal and his client's meal in connection with a lobby communication, the registered lobbyist must report the expenditures for both meals if the purpose of the client's presence is to facilitate the lobby communication. If the client pays for both meals, the registered lobbyist must report the expenditures if the expenditures are made with his consent or ratification. If one registrant pays for meals of other registrants in connection with lobby communications, the reporting requirements depend on the specific circumstances of the transaction.

EAO No. 57 (1992) – A public servant may not accept free membership in an organization as consideration for a speech.

EAO No. 58 (1992) – ** Opinion History** "Expenditure," for purposes of the lobby statute, includes a "loan" or "advance" of anything of value. Thus certain payments for transportation and lodging are prohibited regardless of whether the payments are later reimbursed.

EAO No. 59 (1992) – If a person required to register under the lobby statute subsidizes a banquet to facilitate his ability to communicate with members of the legislature to influence legislation, the registrant must report the expenditures under the lobby statute.

EAO No. 60 (1992) – ** Opinion History** Both a $60 restaurant meal and a $160 deer rifle are benefits. A benefit does not constitute a bribe, however, if it is not offered or accepted as consideration for some official act on the part of a public servant.

A registrant filing a report under the lobby law may claim his Fifth Amendment privilege in response to specific questions if providing the information would tend to incriminate the registrant. The registrant must claim the privilege in response to particular questions, not in a blanket refusal to furnish any information.

EAO No. 61 (1992) – "Benefit," for purposes of chapter 36 of the Penal Code, does not include promotional or commemorative items of minimal value such as caps, coffee mugs, tee shirts, and key rings if such items are unsolicited and not offered or accepted in exchange for any action or inaction on the part of a public servant.

EAO No. 62 (1992) – "Benefit," for purposes of chapter 36 of the Penal Code, does not include small amounts of food that a donor delivers infrequently to a public servant at a governmental office as long as the food is unsolicited and is not offered or accepted in exchange for action or inaction on the part of a public servant. Whether food in a particular case is a benefit is a fact question. The Ethics Commission recommends that public servants exercise good judgment and caution in these matters.

EAO No. 63 (1992) – The Governor may accept gifts from visiting dignitaries on behalf of the state. "Benefit," for purposes of chapter 36 of the Penal Code, does not include the following items as long as they are unsolicited and are not offered or accepted in exchange for any action or inaction on the part of a public servant: promotional or commemorative items such as caps, coffee mugs, tee shirts, and key rings; fresh-cut flowers given to a public servant at a public appearance; and perishable foods delivered infrequently and in small amounts to a government office or given to a public servant at a public appearance.

A state employee who, at the direction of his employing agency, attends a seminar relevant to his job is not obtaining a benefit. The employee may accept tuition, food, transportation, and lodging at such a seminar only to the extent to which the state would pay for tuition, food, transportation, and lodging in connection with the seminar. In that case, the benefit would be to the state and neither chapter 36 of the Penal Code nor chapter 305 of the Government Code would apply.

EAO No. 64 (1992) – Food and beverages provided at a reception are not prohibited benefits under sections 36.08 and 36.09 of the Penal Code if the person providing the food and beverages is present at the reception and if the donor or donee, as applicable, complies with any applicable reporting requirement.

EAO No. 65 (1992) – If an out-of-state employee group is a "general-purpose committee" under the Texas Election Code, then a Texas general-purpose committee is required to include the name and address of the out-of-state employee group in its appointment of campaign treasurer as a "general-purpose committee to whom the committee intends to make political contributions" before the Texas committee may make a contribution to the out-of-state committee.

EAO No. 66 (1992) – "Benefit" under chapter 36 of the Penal Code does not include promotional discount coupons, as described in this opinion, that are delivered to state agencies for distribution to agency employees. The lobby statute does not apply to the delivery of such coupons if the donor's purpose is not to influence agency action but to attract business from state employees in their private capacity.

EAO No. 67 (1992) – A registered lobbyist is not prohibited from giving free books to legislators, but a registrant is prohibited from giving, and a legislator from accepting, "an expenditure or series of expenditures for gifts that in the aggregate exceed $500 in a calendar year." The lobbyist must report any such gift. The lobbyist should report the greater of the fair market value of the books or the actual cost of developing, writing, producing, and distributing the books. A registered lobbyist is not prohibited from selling legislators books for the actual cost of writing, developing, publishing, and distributing the books. Such a sale is not a "gift" and would not have to be reported under the lobby statute.

EAO No. 68 (1992) – ** Opinion History** It is not illegal for an officeholder or candidate to purchase a car with political funds for the purpose of making campaign appearances in parades. Nor is it illegal to use political funds to maintain and insure a car used for such purposes. The car may not be used in a way that primarily furthers individual or family purposes not connected with the performance of duties or activities as a candidate for or holder of a public office. Appearance in a parade may be an activity in connection with a public office, although we think this is most unlikely in the case of a judicial office.

EAO No. 69 (1992) – ** Opinion History** A state college or university is a "person" for purposes of the Penal Code. Therefore, various prohibitions in section 36.08 of the Penal Code on public servants' acceptance of benefits from any "person" apply to the acceptance of benefits from state colleges and universities. As a general rule, tickets to intercollegiate athletic events are benefits. For a state college or university to satisfy the "guest" exceptions in section 36.10 of the Penal Code in regard to athletic events, an individual officer or employee must have some direct contact with the legislator, and the guest and host must be in reasonable physical proximity and have easy access to each other during the game.

EAO No. 70 (1992) – "Officer," for purposes of article 6252-9b, V.T.C.S., includes board members of a state agency that exercises government authority, even though the board members' statutory designation is "director."

EAO No. 71 (1992) – A registered lobbyist is not required to report a contribution to a charitable organization as a lobby expenditure even if the charitable organization uses part of the contribution for one of the purposes set out in section 305.006(b) of the Government Code as long as the lobbyist does not earmark his contribution for that purpose.

EAO No. 72 (1992) – Section 7C of article 6252-9b, V.T.C.S., does not take effect until January 1, 1993. The Ethics Commission will recommend that the legislature clarify section 7C.

EAO No. 73 (1992) – The exemption from the lobby registration requirement for officers and employees of political subdivisions is an exemption only for an officer's or employee's activities in his capacity as an officer or employee of the political subdivision.

EAO No. 74 (1992) – Political expenditures made by individual members of a political committee acting in concert are attributable to the committee.

EAO No. 75 (1992) – ** Opinion History** A city is a "person" for purposes of the Penal Code. Therefore, a legislator may not accept a "benefit" from a city unless one of the exceptions set out in section 36.10 of the code is applicable. Unlimited free parking at a city airport or in metered spaces is a benefit. Unlimited free use of golf and tennis facilities is a benefit.

EAO No. 76 (1992) – It is permissible for a member of the legislature who does not ordinarily reside in Travis County to use political contributions to pay utility bills for a house in Austin that the member owns.

EAO No. 77 (1992) – A corporation may not pay for the printing or mailing of postcards that advocate the election of judges who won a local bar poll. Such postcards would be "political advertising" and the name of an individual or group that entered into an agreement to have the cards printed would have to appear on the postcards as part of the disclosure statement.

EAO No. 78 (1992) – ** Opinion History** A member of the legislature may not use political contributions to pay for business and personal phone calls not involving state business.

EAO No. 79 (1992) – The Board of Pardons and Paroles is a regulatory agency for purposes of section 7A of article 6252-9b, V.T.C.S.

EAO No. 80 (1992) – Payment to a state representative personally in the amount of a ticket paid for out of political funds would, in the circumstances described, be prohibited. Payment to a state representative personally in the amount of the cost of a ticket paid for out of personal funds would be a prohibited benefit.

As long as a payment is not given as consideration for the state representative's decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, the state representative may accept an officeholder contribution or a campaign contribution in the amount of the cost of the ticket.

EAO No. 81 (1992) – Lobby expenditures for food consumed by a legislator's spouse must be reported under section 305.006(b)(2) and section 305.0062, but not under section 305.0061(b). Although there are exceptions to the prohibition on lobby expenditures for lodging, those exceptions would not be applicable to lodging to be used by a legislator's spouse in the circumstances described.

EAO No. 82 (1992) – A lawyer who charges clients an hourly rate for engaging in the activity described in section 40.7(a)(4) of the commission's rules is receiving "special or extra compensation" for that work.

EAO No. 83 (1992) – Section 36.07 of the Penal Code permits payment for services if a contract for such services was entered into and performed at a time when it was permissible for a state employee to accept payment for such services.

EAO No. 84 (1992) – A person who joins an association that employs a registrant is not, simply by virtue of joining the association, required to file a statement under section 305.026 of the Government Code.

EAO No. 85 (1992) – In the circumstances described, volunteers who are reimbursed for expenses connected to production of the newsletter are not required to register as lobbyists.

EAO No. 86 (1992) – A member of the Texas Veterans' Land Board is required to file a financial disclosure statement under article 6252-9b, V.T.C.S.

EAO No. 87 (1992) – A registered lobbyist must report a lobby expenditure in the form of a work of art for a legislator as a "gift" under chapter 305 of the Government Code.

EAO No. 88 (1992) – Non-incumbent legislators-elect are not "members of the legislature" for purposes of section 36.08(f) of the Penal Code. A state university using state funds to furnish a speaker to provide information to state legislators relevant to their official position is not providing a benefit to the legislators for purposes of chapter 36 of the Penal Code.

EAO No. 89 (1992) – An entity may be required to register as a lobbyist under the expenditure threshold for lobby registration. An expenditure made directly from the funds of an engineering firm, in contrast to reimbursement paid by the firm to an individual registrant, is an expenditure by the firm for purposes of the lobby statute, not an expenditure made by the employee who acted on behalf of the firm. An employee of an engineering firm who is paid to communicate with an official of a regulatory agency to extol the merits of the firm is engaged in lobby activity if the purpose of doing so is to influence the agency official in regard to any matter that may be the subject of agency action. Similarly, expenditures for a hunting trip are not exempted from chapter 305 of the Government Code simply because no business is discussed on the trip.

EAO No. 90 (1992) – In providing the use of a deer lease to a member of the legislative or executive branch, a corporation may subject itself or its officers or employees to registration and reporting requirements of chapter 305 of the Government Code, even if no business related matters are to be discussed.

For a corporation to satisfy the "guest" requirement under section 36.10 of the Penal Code there must be a person present whose position, authority, or conduct could create corporate liability for exemplary damages.

EAO No. 91 (1992) – An organization that hosts a reception to which all legislators are invited must report that expenditure on its lobbyist activity report under section 305.0062(d), under the category of "events to which all legislators are invited." Such expenditures are not required to be reported under any other section of the lobbyist activity report.

Transportation to a sporting event that is of "incidental value" is not prohibited or reportable under chapter 305. A lobby expenditure for transportation that is of more than "incidental value" is prohibited by chapter 305.

An organization that "underwrites" the cost of an event by earmarking funds given to a registered organization to host an event may have to report those funds as lobby expenditures under chapter 305, or the underwriting organization may be listed as a person who reimburses, retains, or employs the host organization.

Other registrants who attend a reception and sporting event hosted by an organization do not have to report any expenditures if none were made with their consent. However, a registrant who purchases a ticket to an event in order to directly communicate with a member of the legislative or executive branch to influence legislation or administrative action may be required to report the price of the ticket.

EAO No. 92 (1992) – For a corporation to satisfy the requirement of sections 305.006(f) and 305.024(a)(7) of the Government Code that a "registrant" be present when certain expenditures are made, either the presence of an officer, employee, or member of the organization who is himself registered or the presence of an individual whose position, authority, or conduct could support an award of exemplary damages against the corporation is necessary.

EAO No. 93 (1992) – A registrant may provide transportation expenses for a member of the executive or legislative branch to attend "a conference or similar event in which the member renders services." However, the nature of those services must be "more than merely perfunctory." Whether a particular event or a service falls within these definitions is a fact question.

A registered organization that provides a luncheon for a member of the legislative or executive branch and the organization's members for the purpose of communicating directly to influence legislation or administrative action must report the entire cost of the luncheon on its lobbyist activity report.

When a registrant pays for an event that other registrants attend, none of the expenses of the event are attributable to the other registrants who are in attendance but who make no expenditures themselves.

EAO No. 94 (1992) – Texas Wing may provide lodging to members of the executive branch only if the expenditures are not lobby expenditures and only if the requirements of the "guest" exception in section 36.10 of the Penal Code are met. Texas Wing may provide a banquet to members of the executive and legislative branches if the requirements of the guest exception are met and if the requirements of the lobby statute, if applicable, are met.

EAO No. 95 (1992) – ** Opinion History** A credit card issued to a public servant under a program where the card is issued at the direction and under the control of the State of Texas for state purposes may not be used for personal expenditures or any other type of expenditure not reimbursable as a state business expense under state law.

EAO No. 96 (1992) – Members of the board of directors of the State Bar and employees of the State Bar are "members of the judicial branch of state government" for purposes of section 305.003(b) of the Government Code. Members of the State Bar are not.

EAO No. 97 (1992) – A legislator may not accept an engraved clock in appreciation for a speech, even if the donor is required to report the gift under the lobby statute, if the legislator would not have been asked to give the speech but for his official position.

EAO No. 98 (1992) – The granting or denying of a loan guarantee by the Department of Commerce would be "administrative action" for purposes of chapter 305 of the Government Code. A business that retains or employs a broker to communicate with officers or employees of the Department of Commerce to influence department action may not make the broker's payment contingent on the outcome of action by the department. This prohibition would also apply in a case in which the broker's payment is made contingent on the successful completion of a larger transaction if a piece of the transaction is specific action by the Department of Commerce.

EAO No. 99 (1992) – The lobby reporting requirements applicable to an umbrella organization made up of member organizations depend on the nature of the umbrella organization.

EAO No. 100 (1992) – Whether a state employee may accept a prize depends on the nature, value, and context of the prize. The provisions in the lobby statute and the Penal Code apply to gifts and expenditures made both during working hours and outside of working hours.

EAO No. 101 (1992) – As a general rule, statewide jurisdiction is implicit in the term "state agency or department" as used in chapter 305 of the Government Code. However, a person who communicates directly with an officer or employee of a river authority to influence administrative action must register as a lobbyist if the person meets one of the registration thresholds.

EAO No. 102 (1992) – In most circumstances, an advertisement congratulating a sports team that identifies a candidate or public officer as such is political advertising and must contain the information required by Election Code section 255.001.

EAO No. 103 (1992) – A lobby registrant who receives both compensation and reimbursement must report the total amount of both for purposes of Government Code section 305.005(f)(6). Reimbursements for office expenses such as photocopying, long-distance calls, and facsimile transmissions are among the types of reimbursements that must be reported under section 305.005(b)(6).

EAO No. 104 (1992) – ** Opinion History** Legislators may not use political contributions to pay laundry and dry cleaning expenses incurred in Austin.

EAO No. 105 (1992) – A candidate or officeholder may use campaign contributions to pay legal expenses incurred in defending a lawsuit brought to collect on a campaign loan if the loan was made to the candidate or officeholder in his status as a candidate or officeholder.

EAO No. 106 (1992) – Communications to county officials are not governed by chapter 305 of the Government Code. A county official may be required to report some gifts of food, lodging, transportation, or entertainment under section 159.005(b)(7) of the Local Government Code in order to satisfy the requirements of section 36.10(b) of the Penal Code.

EAO No. 107 (1992) – The exception from required lobby registration for county officers and employees that is set out in section 305.003(b) of the Government Code does not apply to a county officer or employee who is receiving compensation for lobbying from a private organization or making lobby expenditures in the capacity of a representative of a private organization. This is so even if the private organization is an organization of a particular category of county officers or employees.

EAO No. 108 (1992) – A political contribution from a partnership does not become a corporate contribution simply because the partnership uses a corporation to disburse its funds.

EAO No. 109 (1992) – The Texas Ethics Commission does not have authority to impose sanctions under section 1.28 of article 6252-9d.1, V.T.C.S., for violations of title 15 of the Election Code that occurred before January 1, 1992.

EAO No. 110 (1992) – Exceptions from required lobby registration set out in Ethics Commission rules do not apply to persons required to register under section 1.06D of the Insurance Code.

EAO No. 111 (1992) – A candidate may use political contributions to pay the travel expenses of his or her spouse if the spouse is campaigning for a candidate. An officeholder may use political contributions to pay for his or her spouse's travel if the spouse's travel is in connection with the performance of duties or responsibilities of the officeholder.

EAO No. 112 (1992) – A city employee is not required to register as a lobbyist for activities in his capacity as a city employee. As of the date of this opinion, the Ethics Commission has not adopted any rule under section 305.0051.


1993 Opinions

EAO No. 113 (1993) – A donation to a private foundation that supports a state institution of higher education is not a lobby expenditure if the foundation exercises discretion in the use of the donation, even if the donation is ultimately used for the type of expenditures that may require lobby registration and reporting. An individual registrant who attends an event and thereby satisfies the "presence" requirement for an organization that is making the expenditures for the event is not required to report the expenditures for the event.

EAO No. 114 (1993) – ** Opinion History** A "loose knit group" may be required to register under the lobby statute. If a group has as a principal purpose making political contributions or making political expenditures, it is a political committee.

EAO No. 115 (1993) –** Opinion History** A partnership's registration as a lobbyist does not exempt from lobby registration an individual partner who otherwise meets Government Code chapter 305 registration requirements. Money that a partnership distributes to an individual partner for that individual's lobby activities is "compensation" for purposes of the lobby statute.

EAO No. 116 (1993) – A candidate may not convert assets purchased with political contributions to personal use. An item is not converted to personal use if the candidate reimburses his political funds on the basis of the reasonable value of any personal use.

The use of a personal asset for political purposes is not required to be reported under title 15. A candidate may reimburse his personal funds from political contributions for use of personal assets for political purposes.

A corporation would be making a political contribution if it permitted the use of corporate assets for campaign or officeholder purposes.

EAO No. 117 (1993) – There is nothing in the laws subject to interpretation by the Ethics Commission that prohibits a legislator from being employed by a law firm in which other lawyers represent clients before state agencies. Nor is there anything in those laws that prohibits a legislator from representing clients before a school district. A legislator who represents clients before a state agency is subject to certain restrictions.

EAO No. 118 (1993) – A state employee or an employee of a local government body may accept a local ride in the circumstances described.

The prohibition set out in section 36.08(a) of the Penal Code does not apply to a gift from a board member to an employee subject to the direction of the board. A cup of coffee is not a benefit for purposes of chapter 36 of the Penal Code.

A state agency, as opposed to an individual officer or employee of the agency, may accept a gift of food only if the agency can use the food in carrying out its powers and duties. Distribution of food to agency employees would generally not be one of an agency's powers or duties. A state agency may accept a tuition waiver and food at a seminar for a state employee if it would be permissible for the state agency to pay such expenses.

EAO No. 119 (1993) – The lump sum reported under section 305.0062(a)(8) of the Government Code is made up of the kinds of expenditures that are required to be reported under section 305.006. Lobby expenditures incurred in connection with the preparation or presentation of a meal are reportable under the category for "food and beverages."

EAO No. 120 (1993) – A subscription to a magazine may be a benefit if it is of more than minimal value.

EAO No. 121 (1993) – Members of Texas Transportation Commission committees appointed under V.T.C.S. articles 46c-3, 6663b, 6673g, and 6673h are not required to file financial disclosure statements.

EAO No. 122 (1993) – It is for a state university's board of regents to determine whether the activities of a student government group are activities of the university for purposes of the lobby statute. Activities of the university are not lobby activities for purposes of the lobby statute.

EAO No. 123 (1993) – A legislator may not accept payment from a city for lobbying the state legislature.

EAO No. 124 (1993) – The members of the Elimination of Architectural Barriers Advisory Committee are not required to file annual financial disclosure statements. The members of the Air Conditioning and Refrigeration Contractors Advisory Board are not required to file annual financial disclosure statements. The members of the Texas Industrialized Building Code Council are required to file annual financial disclosure statements. The members of the Auctioneer Education Advisory Board are not required to file annual financial disclosure statements. The members of the Board of Boiler Rules are not required to file annual financial disclosure statements. The members of the Property Tax Consultants Advisory Council are not required to file annual financial disclosure statements.

EAO No. 125 (1993) – Whether the prohibition on honoraria applies to a payment to a judge who gives a speech is a fact question and depends on whether the judge would not have been asked to provide the speech but for his official status. The statements of the group sponsoring the speech about its reasons for asking the judge to speak would be one factor for a judge or jury to consider in analyzing whether a payment for the speech was a prohibited hnorarium.

EAO No. 126 (1993) – Informal hearings and preconference hearings under rules of the Board of Nurse Examiners, 22 T.A.C. §§ 213.15, 213.16, are "adjudicative proceedings of the type authorized by" APTRA for purposes of the Ethics Commission rules regarding lobby registration. Proceedings of the Board of Pharmacy that are not adjudicatory are not "adjudicatory proceedings of the type authorized by" APTRA.

EAO No. 127 (1993) – An employee of a municipal retirement system created under V.T.C.S. article 6243n is not an employee of a political subdivision and may therefore be required to register as a lobbyist under chapter 305 of the Government Code.

EAO No. 128 (1993) – Members of a committee that advises the Texas Education Agency, provided for by section 2932 of title 20 of the United States Code, are not required to file financial disclosure statements under article 6252-9b.

EAO No. 129 (1993) – An officeholder may use political contributions to pay the expenses of operating and maintaining his personal airplane for officeholder purposes. Expenses may be prorated between officeholder use and personal use.

EAO No. 130 (1993) – Acceptance of gifts by a state agency is governed by laws that are not subject to interpretation by the Ethics Commission. Whether a state employee may accept a gift depends on the status of the donor and the donee as well as the nature of a gift.

EAO No. 131 (1993) – If funds are given to a political committee with the restriction that they be used to hire a lobbyist to work on legislative matters, the political committee is not required to report the funds as a political contribution. If, on the other hand, funds are not restricted to uses not regulated by title 15, the funds must be reported as a political contribution.

A director of a political committee who incurs postage, telephone, and personal travel costs to communicate with a legislator about pending legislation is not required to register as a lobbyist on the basis of such expenditures. A political committee is not required to register as a lobbyist on the basis of postage and printing costs incurred to mail requests to supporters suggesting they write legislators to influence legislation.

EAO No. 132 (1993) – ** Opinion History** Under Election Code section 253.100, a corporation, acting alone or in concert with one or more corporations, may finance the administration of a general-purpose committee with donations from its own property. Under section 253.100(d), such contributions are not reportable as political contributions by the general-purpose committee. However, if an individual makes a contribution to a general-purpose committee, specifying that the contribution is to be used for administrative expenses only, the general-purpose committee must report the donation as it does any other political contribution under chapter 254 of the Election Code. Administrative expenses are those expenses that would be incurred in the normal course of business by any active organization, whether or not it engaged in political activity. Additionally, a corporation may pay expenses incurred by a general-purpose committee for solicitations of contributions to the committee from the corporation's stockholders, employees, and their families under section 253.100(b) of the Election Code.

EAO No. 133 (1993) – An appellate judge may not use political contributions to pay the expenses of maintaining a residence in the city in which the court sits. A judge may not use political contributions to pay the expenses of commuting between his home city and the city where the court sits. A judge may use political contributions to pay the expenses of moving from his home city to the city where the court sits.

EAO No. 134 (1993) – The incidental use of state telephones by state employees to place personal local calls that does not result in additional costs or damage to the state is not a "misapplication" of state property for purposes of section 39.01(a)(2) of the Penal Code.

EAO No. 135 (1993) – The chancellor of the Texas State Technical College System must file an annual financial disclosure statement. The vice-chancellor, the secretary of the board, and the president of each TSTC System campus are not required to file. The members of the board of regents of the TSTC System are required to file financial disclosure statements.

EAO No. 136 (1993) – A lobbyist who provides a meal to legislators in his home in order to communicate to influence legislation is not required to report the value of the use of his home.

EAO No. 137 (1993) – A designated representative of an ex officio nonvoting member of the Texas Board of Licensure for Nursing Home Administrators is not required to file an annual financial disclosure statement.

EAO No. 138 (1993) – Members of the Commission on Law Enforcement Officer Standards and Education and of the Law Enforcement Management Institute are "state officers" for purposes of article 6252-9b, V.T.C.S., and must file annual financial disclosure statements as required by that statute. Members of the Texas Peace Officers' Memorial Advisory Committee are not required to file financial statements.

EAO No. 139 (1993) – Gifts from legislators to legislative staff members and gifts from committee chairs to committee members may be permissible under the Penal Code exception for gifts given on the basis of an independent relationship. Penal Code § 36.10(a)(2).

EAO No. 140 (1993) – The State Conservatorship Board is a state agency whose board members are required to file annual financial disclosure statements with the Texas Ethics Commission under article 6252-9b, V.T.C.S.

EAO No. 141 (1993) – Appointed members of the Texas Judicial Council are not required to file annual financial statements as "appointed state officers" under article 6252-9b, V.T.C.S.

EAO No. 142 (1993) – The members of the board of directors of the Texas Certified Self-Insurer Guaranty Association who file financial disclosure statements because of other positions are not required to file an additional statement because of their membership on the board of the association. The other board members are not required to file statements.

EAO No. 143 (1993) – A candidate may contract with a carnival corporation for the corporation to present a carnival at the candidate's fundraiser and remit a portion of the proceeds to the candidate in exchange for the candidate's provision of land and services if such an arrangement reflects the usual and normal practice in the carnival industry for contracts with non-political as well as political entities. Purchases of carnival tickets would be reportable political contributions, and so could not be made by corporations or labor unions.

EAO No. 144 (1993) – A commercial sponsor who provided funding for a television program for a state representative with the intent that the state representative use the time to explain his position on legislative matters would be making an officeholder contribution. Because officeholder contributions from corporations and certain other entities are generally prohibited, these entities could not sponsor such a program. If a paid television broadcast supports or opposes a candidate for nomination or election to a public office or supports or opposes a public officer, the show must include the information required by section 255.001 of the Election Code.

EAO No. 145 (1993) – Ethics Advisory Opinion No. 32 (1992) is overruled. A general-purpose committee is not required to include the name of a legal entity in its name simply because the legal entity contributes money for the establishment or administration of the committee. A general-purpose committee must include in its name the name of a legal entity that plays a role in the decisionmaking process of a general-purpose committee.

EAO No. 146 (1993) – A state representative may use political contributions to reimburse himself for payments from personal funds on a condominium that the state representative purchased in 1991. Reimbursements may be made for payments made after January 1, 1992, only if the state representative complied with the reporting requirements set out in section 253.035(h) of the Election Code.

EAO No. 147 (1993) – A public servant's use of a state-issued credit card for any type of expense other than a state business expense is a misapplication of state property and may violate section 39.01 of the Penal Code. It is not a misapplication of state property to use a state-issued credit card for a state business expense in accordance with rules established by agencies authorized to control the card's use.

EAO No. 148 (1993) – As long as a state legislator is providing services to a city in a capacity other than as a legislator and as long as the prohibition on honoraria is not applicable, a state legislator may accept a salary for working for a city. Whether funds come from a public or private source is irrelevant to the application of the honorarium provision. Under the prohibition on honoraria a legislator could not accept a fee for teaching if the legislator would not have been asked to speak but for his position as a legislator, regardless of whether the payment comes from a public or private source.

EAO No. 149 (1993) – An officeholder may use political contributions left over from a campaign to make a donation to a tax-exempt, nonprofit organization serving physically, mentally, and developmentally challenged citizens without violating the prohibition on conversion of political contributions to personal use.

EAO No. 150 (1993) – A state senator may not request that a payment be made to a third party in consideration for a speech by the senator. Nor may a state senator agree that a payment will be made to a third party in consideration for a speech by the senator. A third party may make a charitable donation in a state senator's name in appreciation for a speech by the state legislator as long as the payment is not the result of an express or implied agreement with the legislator.

EAO No. 151 (1993) – Political contributions accepted before September 1, 1983, are not subject to the prohibition on personal use of political contributions.

EAO No. 152 (1993) – A hearings examiner is not prohibited from accepting transportation and meals in connection with a substantive presentation to provide information about the hearings examiner's agency, regardless of whether individual members of the group attending the presentation may have contested cases pending before the agency.

EAO No. 153 (1993) – A member of the Advisory Commission on State Emergency Communications who is a registered lobbyist is not required to report as a lobby expenditure his employer's payment of his travel expenses to attend commission meetings.

EAO No. 154 (1993) – The Commission on the Arts is a regulatory agency for purposes of section 7A of article 6252-9b, V.T.C.S.

EAO No. 155 (1993) – A legislator may not accept a salary from a private association for carrying or "killing" bills in the legislature. The restrictions set out in section 7 of article 6252-9b, V.T.C.S., apply to a legislator's representation of a person in a grievance proceeding before a public university, but not to a legislator's representation of a person in a grievance proceeding before a public junior college.

EAO No. 156 (1993) – ** Opinion History** The provisions subject to interpretation by the Ethics Commission do not prohibit a legislator or his law firm from entering into a contract to assist with the collection of delinquent property taxes for a local taxing authority.

EAO No. 157 (1993) – A state representative whose district has a large Hispanic population may use political contributions to pay for Spanish lessons in order to communicate with his or her constituency. Such expenditures would not constitute a prohibited personal use of political contributions under section 253.035 of the Election Code.

EAO No. 158 (1993) – A salesperson who attempts to influence state agency purchasing decisions is making a communication to influence administrative action. However, Lobby Rule 40.5(c) exempts from registration a salesperson whose compensation or reimbursement triggers the registration threshold. This rule does not provide an exemption for a salesperson who is required to register as a lobbyist under the expenditure threshold of the lobby statute.

EAO No. 159 (1993) – A lawyer who receives compensation for communications in connection with a response to a bid solicitation is not required to register as a lobbyist on the basis of such communications.

EAO No. 160 (1993) – Lobby Rule 40.5(c) provides an exemption from lobby registration under the compensation threshold for a person who is compensated more than $200 in a calendar quarter to influence a state agency in its selection of an investment banker.

EAO No. 161 (1993) – The effect of harmonizing a recent amendment to section 253.031(b) of the Election Code with section 253.031(c) is as follows: A political committee may not knowingly make or authorize a campaign contribution or campaign expenditure that in the aggregate exceeds $500 supporting or opposing a candidate for a statewide office, the state legislature, the State Board of Education, or a multi-county district office in a primary or general election unless the committee's campaign treasurer appointment has been filed not later than the 30th day before the appropriate election day.

The effect of harmonizing the recent amendment to section 253.031(b) with section 253.037(a) is as follows: A general-purpose committee may not knowingly make or authorize political expenditures totaling more than $500 unless the committee has (1) filed its campaign treasurer appointment not later than the 60th day before the date the expenditure is made that causes the total expenditures to exceed $500, and (2) accepted political contributions from at least 10 persons.

EAO No. 162 (1993) – The fact that a person is named as an assistant on another person's lobby registration does not relieve the assistant of the requirement to register as a lobbyist if he independently meets one of the registration thresholds.

A lobby registrant is not required to report lobby expenditures made by an assistant if the assistant is himself registered as a lobbyist and reports the expenditures.

A registrant who establishes a temporary residence in Austin is not required to report expenditures for the registrant's basic living expenses unless the expenses are directly connected with communications to influence. Whether an expenditure is made in order to communicate to influence is generally a fact question.

EAO No. 163 (1993) – An incorporated trade association may finance costs directly connected with a fundraiser held for the benefit of a general-purpose committee it assists under Election Code section 253.100(a), including the cost of meals and invitations, for stockholders, members, employees, or the families of stockholders, members, or employees of the corporation. Any costs associated with the fundraiser attributable to individuals who are not stockholders, members, or employees, or families of stockholders, members, or employees of the corporation may not be paid from the funds of the corporation. Such costs shall be calculated as the actual cost of an individual's attendance at the event, or if actual cost is not reasonably determinable, then the cost shall be calculated as a pro rata share of the total cost of the event.

Members of a trade association that has no stockholders are treated as stockholders for purposes of the solicitation restrictions. If the members of such a trade association are themselves incorporated entities, the association may also finance the solicitation of contributions to the general-purpose committee from the stockholders, employees, and the families of stockholders and employees of its incorporated members.

EAO No. 164 (1993) – As a general rule, a state employee would not be serving an agency purpose by searching for other employment. An individual state employee who is using state resources to search for a new job in a way that has been expressly authorized by the agency's board would not, as an individual, be misapplying state property.

EAO No. 165 (1993) – A political committee that incorporates under the Nonprofit Corporation Act for liability purposes only and states that its only purpose for incorporating is to accept contributions and make expenditures as a political committee is formed for liability purposes only within the meaning of section 253.092 of the Election Code. Such an incorporated political committee is not subject to the prohibitions generally applicable to corporations under title 15 of the Election Code.

EAO No. 166 (1993) – A Texas candidate, officeholder, or political committee that receives contributions that exceed $500 in a reporting period must obtain only one certified copy of the out-of-state political committee's statement of organization filed with the Federal Election Commission during that reporting period.

A Texas candidate, officeholder, or political committee must obtain a new certified copy of the out-of-state political committee's statement of organization filed with the Federal Election Commission for each reporting period in which the Texas candidate, officeholder, or political committee receives more than $500 in contributions from the out-of-state committee.

EAO No. 167 (1993) – A former state officer or employee of a regulatory agency covered by Government Code section 572.054(b) commits an offense if the former officer or employee represents any person or receives any compensation for services rendered on behalf of any person regarding a particular matter in which the former officer or employee participated during the period of state service or employment, either through personal involvement or because the case or proceeding was a matter within the officer's or employee's official responsibility. An agency may refuse to deal with a former officer or employee who attempts to represent an individual in violation of the statute, consistent with the due process rights of the individuals concerned. Nothing in the statutes the Texas Ethics Commission is authorized to interpret directly provides that a state officer or employee commits an offense by permitting a prohibited representation to take place, or that a person commits an offense by allowing himself to be represented in violation of the statute, though section 7.02 of the Penal Code provides for criminal responsibility for the conduct of another under certain circumstances.

EAO No. 168 (1993) – A corporation may pay the expenses of a forum sponsored by a political committee if the content of the forum is unrelated to activities governed by title 15 of the Election Code. The name of a corporation that designates individuals to serve on the board of a general-purpose committee must be included in the name of the political committee, whether or not the individuals designated by the corporation constitute a majority on the board.

EAO No. 169 (1993) – Surplus funds of a deceased officeholder may be contributed to a candidate as long as disposition of the funds is permissible under any applicable probate laws.

EAO No. 170 (1993) – A former speaker candidate may return contributions for the speaker's race to contributors.

EAO No. 171 (1993) – Under section 255.006 of the Election Code, a person may not suggest in political advertising or in a campaign communication that the person holds an office the person does not currently hold.

EAO No. 172 (1993) – A legislator's use of state resources and employees to keep track of the legislator's overall schedule, including personal and political appointments, is not a misapplication of things of value belonging to the government under Penal Code section 39.01(a)(2). However, a state employee should not be used as a political or personal scheduler to make personal appointments or organize political events.

The use of state equipment or state employees' work time to handle campaign contributions or expenditures is a misapplication of state property. Under certain circumstances, the use of state resources to handle officeholder contributions and expenditures may be appropriate. Because the distinction between campaign matters and officeholder matters is not always clear, a legislator should be cautious in using state employees to handle any political contributions and expenditures.

EAO No. 173 (1993) – Texas law prohibits a public servant from accepting an honorarium for services that the public servant would not have been asked to perform but for his or her official position or duties. The location of a speech, the nature of the audience, or the speaker's expertise may be factors to consider in determining whether an honorarium is a prohibited one, but if the public servant would not have been asked to speak but for his official status, a payment for speaking would be a prohibited honorarium.

EAO No. 174 (1993) – The laws subject to interpretation by the Ethics Commission do not prohibit a senator from serving as a trustee on the board of a private college that receives state-funded tuition equalization grants. However, a legislator is governed by the laws regarding conflicts of interest that are set out in Government Code chapter 572 and is subject to the restrictions that those laws impose.

EAO No. 175 (1993) – Contributions to Texas state candidates made through an employee participation plan established by a corporation under regulations of the Federal Election Commission do not constitute corporate contributions under the Texas Election Code, and do not trigger any reporting or registration requirements on the part of the corporation. Corporate expenditures to establish and administer such an employee participation plan are not political expenditures regulated by title 15 of the Election Code.

EAO No. 176 (1993) – A political party may accept contributions from a corporation to be used to purchase a building for a permanent party headquarters, provided that the party complies with Election Code chapter 257 relating to corporate and labor union contributions to a political party.

EAO No. 177 (1993) – General-purpose committee expenditures related to political fundraising are subject to the 60-day waiting period of Election Code section 253.037(a), as interpreted in Ethics Advisory Opinion No. 161 (1993). Costs associated with the production and dissemination of a brochure discussing the nature of a general-purpose committee and its political concerns, to be used for educational and fundraising purposes, are political expenditures. If a general-purpose committee receives as an in-kind contribution brochures costing more than $500 to produce, its distribution of the brochures constitutes a political expenditure subject to the 60-day waiting period.

EAO No. 178 (1993) – In general, a legislator is not prohibited from accepting employment and receiving compensation for legitimate services performed in a capacity other than as a public servant.


1994 Opinions

EAO No. 179 (1994) – The Texas Certified Self-Insurer Guaranty Association (TCSGA) is not a state agency for purposes of chapter 572 of the Government Code.

EAO No. 180 (1994) – Members of the Texas Peace Officers' Memorial Advisory Committee (POMAC) are appointed officers of a state agency who are required to file annual financial disclosure statements. Ethics Advisory Opinion No. 138 (1993) is superseded, in part, by statute.

EAO No. 181 (1994) – An incorporated association may raise funds for a general-purpose committee it has established by combining contribution solicitations with the association's yearly dues invoices to its members.

EAO No. 182 (1994) – In order for a violation of section 39.01 of the Penal Code to occur, there must be both a "misapplication" of state resources and the misapplication must be made with intent to obtain a benefit or with intent to harm another. A use of state resources for charitable fundraising in compliance with article 6813h, V.T.C.S., would not be a misapplication of such resources. Nor would a use of state resources in connection with a charitable fundraising drive involve an intent to obtain a "benefit" or an intent to "harm" another as defined by section 1.07(a) of the Penal Code.

EAO No. 183 (1994) – ** Opinion History** Communications supporting or opposing candidates, officeholders, or measures that appear in a newspaper, magazine, or periodical do not constitute political advertising if the publisher receives no consideration for publishing them. If such communications appear in a publication other than a newspaper, magazine, or periodical, they constitute political advertising and must be accompanied by the political advertising disclosure information set out in Election Code section 255.001.

EAO No. 184 (1994) – A political advertising disclosure statement is not required on lapel stickers, pens, magnets, or emery boards, nor on an invitation to an "open house" held by an officeholder.

EAO No. 185 (1994) – ** Opinion History** Section 305.022 of the Government Code does not prohibit contingent fees for efforts to influence state agency purchasing decisions.

EAO No. 186 (1994) – After September 1, 1994, a city's provision of free parking for legislators on any property or at any facility "owned, leased, or operated" by the city will not be prohibited by section 36.08(f) of the Penal Code. Legislators are not required to report a city's provision of free parking on a personal financial statement filed under chapter 572 of the Government Code.

EAO No. 187 (1994) – The gift prohibitions in section 36.08 of the Penal Code are applicable to gifts from cities and counties. Those prohibitions do not apply to gifts routinely given to new residents of the city or county by a community group such as a chamber of commerce.

EAO No. 188 (1994) – A photocopy or reprint of a newspaper editorial supporting, opposing, or proposing legislation does not need to include a legislative advertising disclosure statement. The legislative advertising disclosure requirement is triggered whenever legislative advertising is printed, published, or broadcast pursuant to a contract or other agreement, regardless of the amount of consideration offered or received in connection with the agreement. A legislative advertising disclosure is required only for communications that support, propose, or oppose specific legislation; communications that merely support or oppose a general point of view on a given topic do not need to carry the disclosure. The disclosure may be required on communications whether or not the legislature is currently in session.

EAO No. 189 (1994) – For purposes of section 251.008 of the Election Code, expenses "in connection with" a speaker's appearance before a club include expenditures for meals, a meeting room, insurance for the meeting, decorations, food, advertising, and travel expenses. If the speaker makes use of the travel provided by the club to engage in other campaign activity, a reasonably apportioned amount of the travel expenses would be a campaign contribution to the candidate.

EAO No. 190 (1994) – A member of the legislature may not use the work time of state employees to prepare and mail Christmas cards to the legislator's constituents. A member of the legislature may use political contributions to purchase, prepare, and mail Christmas cards.

EAO No. 191 (1994) – A legislator may accept a loan of computer equipment from a private company only if acceptance is permissible under section 36.10 of the Penal Code and section 253.094 of the Election Code.

A legislator may accept as an officeholder contribution a loan of computer equipment to be used to train constituents to obtain government information. A legislator may not, however, accept an officeholder contribution from a corporation. State resources may not be used in connection with computer training unless the training constitutes a state purpose. Equipment accepted as an officeholder contribution may not be converted to personal use.

EAO No. 192 (1994) – In addition to agency policy and laws applicable to specific agencies, sections 36.07 and 36.08 of the Penal Code and chapter 572 of the Government Code may restrict outside employment by state employees.

EAO No. 193 (1994) – A member of the legislature may use state resources to provide the type of legislative assistance he provides to residents of his current district to a person who lives in a geographical area that will become part of the legislator's district in 1995.

EAO No. 194 (1994) – Whether a particular situation involves compensation for representation before a state agency for purposes of section 572.052 of the Government Code depends on the exact nature of a specific financial arrangement.

EAO No. 195 (1994) – ** Opinion History** An elected official may use political contributions to reimburse his personal funds for officeholder expenditures if the elected official reported the expenditures in accordance with section 253.035(h) of the Election Code.

EAO No. 196 (1994) – Under Election Code section 255.006, a candidate appointed pursuant to Local Government Code section 87.017(a) to perform the duties of a district attorney may not describe himself in campaign literature as the holder of the office of district attorney.

EAO No. 197 (1994) – A former state agency employee subject to section 572.054(b) of the Government Code may represent a person before his former agency so long as he does not work on a matter in which he participated or for which he had responsibility as a state employee. Further, a former employee may work on matters that are similar to matters he worked on as a state employee, and he may work for a person or entity that he dealt with as a state employee, as long as he does not work on a matter he worked on as a state employee or a matter over which he had responsibility as a state employee.

EAO No. 198 (1994) – A corporation is prohibited by Election Code section 253.094 from making expenditures to communicate with its employees, retirees and their families about an election only if the communication "expressly advocates" the defeat or election of an identified candidate, as that term has been used by the United States Supreme Court. The inclusion of words such as "vote for," "elect," "support," "defeat," "reject," or "Smith for Senate" would clearly constitute express advocacy. Whether communications including candidates' voting records and positions on issues, poll results, and third-party endorsements constitute express advocacy would depend on the precise language of the communication.

EAO No. 199 (1994) – A retiring judge may use political contributions to pay for a portrait of himself to be hung in the county courthouse.

EAO No. 200 (1994) – A contribution to a political committee given with the restriction that it be used to conduct a seminar unrelated to candidates or measures is not a political contribution. Similarly, expenditures for such a seminar would not be political expenditures.

EAO No. 201 (1994) – The statutes within the Ethics Commission's jurisdiction do not prohibit a legislator from owning any particular kind of business. There could be a situation in which a legislator's interest in a home health care agency would require the legislator to abstain from voting on a measure.

EAO No. 202 (1994) – A person acting in reasonable reliance on a rule adopted by the Ethics Commission may rely upon such a rule as if it were an advisory opinion.

EAO No. 203 (1994) – The Texas Board of Nursing Facility Administrators is a major state agency for purposes of chapter 572 of the Government Code.

EAO No. 204 (1994) – If an officeholder seeks and obtains state reimbursement for a use of a car purchased with political contributions, the money paid to the officeholder as reimbursement for use of the car must be paid by the officeholder into the officeholder's political fund.

EAO No. 205 (1994) – Nothing in the laws subject to interpretation by the Ethics Commission specifically addresses the issue of a legislator engaging in negotiations for future employment. The bribery law would prohibit a legislator from accepting or soliciting future employment in exchange for some official action on the part of the legislator during the remainder of his term of office.

EAO No. 206 (1994) – Payment of a fine for filing a late report with the Texas Ethics Commission is a political expenditure.

EAO No. 207 (1994) – There is no violation of title 15 of the Election Code if a candidate, officeholder, or political committee transfers an anonymous contribution to a recognized tax-exempt charitable organization.

EAO No. 208 (1994) – General-purpose political committees are not required to report political expenditures made in connection with out-of-state campaigns, officeholders, or measures on reports filed under chapter 254 of the Texas Election Code.

EAO No. 209 (1994) – It is permissible for an officeholder to use political contributions to purchase, prepare, and mail congratulatory letters to parents upon the birth of a child and certificates to students upon graduation from high school or college. The attorney general is the appropriate source for determining whether the constitution permits the use of state resources for such purposes.

EAO No. 210 (1994) – ** Opinion History** The particular bumper sticker at issue in this opinion does not violate section 255.006 of the Election Code. We caution that a candidate who is not an incumbent in the office sought should avoid uncertainty about the application of section 255.006 by using words such as "for" before the name of the office sought, or "elect" before the candidate's name.

EAO No. 211 (1994) – The attached brochure is not "political advertising" as defined in section 251.001(16) of the Election Code.

EAO No. 212 (1994) – An individual formerly employed by a state regulatory agency to perform public relations work for the purpose of achieving public support for proposed legislation may perform public relations work for the same purpose for a private foundation without violating Government Code section 572.054(b).

EAO No. 213 (1994) – The term "individual" in section 572.055 of the Government Code means a natural person and does not include artificial persons.

The restriction in section 572.055 that applies to an individual "directly or indirectly connected to" a business entity applies to owners and employees of a business entity and to creditors whose right to payment depends on the profits of the business. The restriction does not apply to customers of a business entity.

EAO No. 214 (1994) – The laws subject to interpretation by the Texas Ethics Commission apply to gifts to individuals, not gifts to governmental bodies.

EAO No. 215 (1994) – ** Opinion History** A partnership including one or more corporate partners is subject to the same restrictions on political activity that apply to corporations.

EAO No. 216 (1994) – A corporation may pay an administrative fine assessed under title 15 of the Election Code against the treasurer of a general-purpose committee that the corporation sponsors.

EAO No. 217 (1994) – A corporation may use a payroll deduction plan to solicit contributions to its general-purpose political committee. If the corporation is a dues-paying member of an incorporated trade association, it may use its payroll deduction plan to solicit contributions to the trade association's political committee as well.

EAO No. 218 (1994) – A member of the board of a state agency is not required to recuse himself from participation in a decision about litigation against a bank on bond matters in a case in which the bank is the trustee for a pension and profit-sharing plan for a professional corporation established by the board member.

EAO No. 219 (1994) – An individual may use political contributions to pay the expenses in connection with a sworn complaint filed with the Ethics Commission alleging violations of title 15 of the Election Code.

EAO No. 220 (1994) – The revolving door provision, Government Code section 572.054, does not restrict a former member of the governing board of a state agency from communicating with or appearing before the agency with the intent to influence agency action on behalf of a nonprofit organization.

EAO No. 221 (1994) – A partnership that has corporate partners is subject to the same restrictions on political activity that apply to corporations. Ethics Advisory Opinion No. 215 (1994) is reaffirmed.

EAO No. 222 (1994) – A person may use political contributions to defend a grievance filed before the State Bar if the grievance is in regard to the person's conduct as a candidate.

EAO No. 223 (1994) – The solicitable class of an incorporated association includes the solicitable class of each of its member corporations. All of the corporate members of the incorporated association described in the request pay dues to the association. Therefore, all of the corporate members "assist" the general-purpose committee established by the incorporated association, and the general-purpose committee may use funds contributed by corporate members to solicit the entire solicitable class of the incorporated association (including any solicitable classes of member corporations).

EAO No. 224 (1994) – Nothing in title 15 of the Election Code makes degree of risk a basis for concluding that a particular investment is or is not permissible. The only limit title 15 places on a candidate's or officeholder's investment of political contributions is that an investment may not constitute a conversion of a political contribution to the personal use of the candidate or officeholder.

EAO No. 225 (1994) – The individuals and entities in the three different classes of members set out in the bylaws of the Texas Chamber of Commerce, as described in the request letter, are all "members" within the meaning of sections 253.098 and 253.100(b) of the Election Code.

A solicitation for contributions sent to a corporation's employees in accordance with section 253.100(b) of the Election Code may not contain express advocacy in regard to an identified candidate.

EAO No. 226 (1994) – In the specific circumstances described in this opinion, an award to police officers from a national foundation is not a prohibited honorarium under section 36.07 of the Penal Code, nor is it a prohibited benefit under section 36.08(a) of the Penal Code.

EAO No. 227 (1994) – A "member" of a farm mutual insurance company, as provided for in chapter 16 of the Insurance Code, is a "member" of the farm mutual insurance company for purposes of section 253.098 of the Election Code.

EAO No. 228 (1994) – There is no general prohibition against a legislator serving on the board of a private entity. The legislator should be aware, however, of the restrictions in chapter 36 of the Penal Code and in chapter 572 of the Government Code.

EAO No. 229 (1994) – The revolving door prohibition in section 572.054(b) of the Government Code does not prohibit a former agency employee from working for the agency as an independent contractor to perform the duties of a hearings examiner.

EAO No. 230 (1994) – ** Opinion History** Title 15 of the Election Code does not require that political contributions be kept in an account separate from other funds, or even that political contributions be kept in an account at all. If a candidate or officeholder maintains more than one account, a transfer of political contributions from one of those accounts to another is not an expenditure; nor does the transfer trigger any reporting requirements. Similarly, the withdrawal of cash from one of those accounts is not, by itself, an expenditure; nor does the withdrawal itself trigger any reporting requirements.

EAO No. 231 (1994) – An agreement to transfer money in the future is a contribution. That type of contribution is referred to as a "pledge" in Ethics Commission rules and forms. A pledge accepted by a candidate or officeholder must be reported on the report covering the period in which the pledge is accepted, not when the actual transfer of money or goods is made. Once a pledge is reported, it is not necessary to report the contribution a second time when the transfer is made.

EAO No. 232 (1994) – The revolving door provisions of the Government Code do not prohibit a former officer or employee of a regulatory agency from working for a nonprofit entity or governmental body after ceasing employment with the agency. Nor does it prohibit a former officer or employee of a regulatory agency from performing work for a law firm on behalf of a nonprofit entity or governmental body.

Government Code section 572.054 does not prohibit a former employee of a state agency from communicating to the legislature in regard to statutes affecting the agency.

EAO No. 233 (1994) – ** Opinion History** Former employees of the Texas Natural Resources Conservation Commission (TNRCC) are subject to the revolving door provisions in section 572.054 of the Government Code with the following exception: A former TNRCC employee who participated in the handling of a permit application covered by Health and Safety Code sections 361.0885 and 382.0591 or Water Code section 26.0283 is subject to those provisions, not to section 572.054 of the Government Code, for purposes of determining whether he or she may represent a person in regard to a permit matter before the TNRCC.

EAO No. 234 (1994) – A member of the State Board of Education is not required to comply with section 253.034 of the Election Code, which places a moratorium on certain political contributions before and during the regular legislative session.

EAO No. 235 (1994) – Neither chapter 36 of the Penal Code nor chapter 305 of the Government Code prohibits a member of the legislature from accepting free use of office space from a county.

EAO No. 236 (1994) – There is no specific legal requirement that an officer maintain copies of a financial disclosure statement filed with the Ethics Commission. We recommend, nonetheless, that a filer keep a copy of a financial disclosure statement for at least two years after the deadline for filing the statement.

EAO No. 237 (1994) – A member of the legislature who does not ordinarily reside in Travis County may use political contributions to lease or purchase furniture for a residence in Travis County.

EAO No. 238 (1994) – ** Opinion History** In our opinion Government Code section 572.023, subsection (b)(8), which is specifically directed at trust income and assets, prevails over subsection (b)(6) in the case of any conflict in regard to a description of assets held in trust for a state officer as beneficiary.

EAO No. 239 (1994) – As long as a person subject to section 253.034 of the Election Code accepts and receives a political contribution in the form of office space before the beginning of the moratorium on political contributions set out in section 253.034, the person may continue to use the office space during the period covered by the moratorium.

 

Part II (1995 to 1999) | Part III (2000 to 2005)| Part IV (2006 to 2010)| Part V (2011 to present)

Last Revision: February 19, 2014