HomeMy WebLinkAboutPR 13531:CONFLICTS OF INTERESTinteroffice
MEMORANDUM
To: Mayor, City Council, City Manager
From: Mark T. Sokolow, City Attorney
Date: April 21, 2006
Subject: P. R. No. 13531 - April 25, 2006 Council Meeting
Attached is P. R. 13531 pertaining to Conflicts of
Interests.
MTS:gt
Attachment
z,pr13531 .memo
P. R. No. 13531
04/21/06 gt
RESOLUTION NO.
A RESOLUTION AS IT PERTAINS TO CONFLICTS OF
INTERESTS (~EQUESTED BY COUNCILMEMBERS LEWIS,
BEARD, AND SINEGAL)
WHEREAS, the State Legislature has adopted laws pertaining to
conflicts of interests; and
WHEREAS, these laws include, but are not limited to the
following:
Chapter 171 of the Local Government Code requires that a
public official disclose a substantial interest in a business
entity, file an affidavit, and recuse himself from voting on
items pertaining to that business entity.
Section 36.02 Penal Code as it pertains to Bribery.
Section 39.02 Penal Code as it pertains to Abuse of Official
Capacity.
Section 39.03 Penal Code as it pertains to Official
Oppression.
Section 39.06 Penal Code as it pertains to Misuse of
Official Information; and
WHEREAS, a copy of these applicable laws are herein attached
as Exhibits "A - E".
WHEREAS, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF PORT ARTHUR, TEXAS:
Section 1. That the facts and opinions in the preamble are
true and correct.
Section 2. That all persons and companies are herein
requested to take all due precautions as to avoid violating the
z.pr13531
following penal provisions:
Chapter 171 of the Local Government Code requires that a
public official disclose a substantial interest in a business
entity, file an affidavit, and recuse himself from voting on
items pertaining to that business entity.
Section 36.02 Penal Code as it pertains to Bribery.
Section 39.02 Penal Code as it pertains to Abuse of Official
Capacity.
Section 39.03 Penal Code as it pertains to Official
Oppression.
Section 39.06 Penal Code as it pertains to Misuse of
Official Information.
Section 3. That if anyone has a concern that any person or
company is violating or has violated the Texas Penal Code, that
person is encouraged to immediately contact the Chief of Police or
the District Attorney's Office.
Section 4. That all candidates and councilmembers are
herein requested to sign and adhere to the Code of Fair Campaign
Practices attached as Exhibit "F".
Section 5. That a copy of the caption of this Resolution
be spread upon the Minutes of the City Council.
BEAD, ADOPTED AND APPROVED on this __ day of
, A.D., 2006, at a Meeting of the City Council of
the City of Port Arthur, Texas, by the following vote: AYES:
z,pr13531
Mayor ,
Councilmembers ,
;
NOES:
MAYOR
ATTEST:
CITY SECRETARY
APPROVED AS TO FOP~M:
CITY ATTORNEY
APPROVED FOR ADMINISTRATION:
CITY MANAGER
z.pr13531
EXHIBIT "A"
EMPLOYEEs Title 5
on in violation
It of successful
SUBTITLE C. MATTERS AFFECTING PUBLIC OF- :
FICERS AND EMPLOYEES OF MORE THAN
ONE TYPE OF LOCAL GOVERNMENT
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'r this chapter,
have occurred
CHAPTER 171. REGULATION OF CONFLICTS OF INTER-
EST OF OFFIGERS OF MUNICIPALITIES, COUNTIES,
AND CERTAIN OTHER LOCAL GOVERNMENTS
Section
171.001. Definitions.
171.002. Substantial Interest in Business Entity.
171.0025. Application of Chapter to Member of Higher Education Authority.
171.003. Prohibited Acts; Penalty.
171.004. Affidavit and Abstention From Voting Required.
171.005. Voting on Budget.
171.006. Effect of Violation of Chapter.
171.007. Common Law Preempted; Cumulative of Municipal Provisions.
171.008. Renumbered.
171.009. Service on Board of Corporation for No Compensation.
Cross References
Community centers for mental health and mental retardation, board of trustees, violation of this
chapter, see V.T.C.A., Health & Safety Code § 534.0065.
County judge or county commissioner, service as officer or director or member of governing body
of corporation, see V.T.C.A., Local Government Code § 81.002.
Water districts, award of contracts, see V.T.C.A., Water Code § 49.214.
Library References
The depository, conflicts of interests, see Competitive bidding & purchasing, conflict of
Brooks, 35 Texas Practice § 14.10. interest, commissioners' oath, see Brooks,
Competitive bidding & purchasing, conflict of 35 Texas Practice § ~8.38.
interest, genera[ statute, see Brooks, 35
Texas Practice § I8.37.
397
PUBLIC OFFICERS & EMPLOYEES OFFICERS ~
Title $ Ch. 171
A county auc
Conflict of interest, other statutes, see Brooks, Municipal Corporations ¢::.231 (3).
35 Texas Practice § 18.44. C.J.S. Municipal Corporations § 991. executive direct~
ing corporation
the county is ret
ments on regul~
§ 171.001. Definitions
In this chapter: § 1'/1.002.
(1) "Local public official" means a member of the governing body or (a) For pu
another officer, whether elected, appointed, paid, or unpaid, of any district business entil
(including a school district), county, municipality, precinct, central appraisal
district, transit authority or district, or other local governmental entity who (1) the p
exercises responsibilities beyond those that are advisory in nature, business er
fair market
(2) Business entity means a sole proprietorship, partnership, firm, cor-
poration, holding company, joint-stock company, receivership, trust, or any (2) fund~'
other entity recognized by law. of the pers~
(b) A perst
Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987. equitable or
Historical and Statutory Notes (c) A local
this section ii
Prior Laws:
Acts 19,83, 68th Leg., p. 4079, ch. 640, § 1. or affinity, as
Vernon s Ann.Civ.St. art. 988b, § 1. rial interest u
Library References Acts 1987, 70ti
ch. 1, § 40(a),
Texts and Treatises Acts 1995, 74tl
60 Texas Jut 3d, Pub Off §§137, 145. § 1, elf. Sept.
Notes of Decisions
Buslnessentity 2 Ann.Civ. St. art. 988b, § 1(1) [repealed; see,
Local public official I now, this section], investigator's decision mak- The sou
lng authority is not within ambit of former either affi:
Vernon's Ann.Civ. St. art. 988b [repealed; see, degree" is
now, this Chapter]. Op.Atty.Gen. 1987, No. the meani
1. Local public official JM-776.
Vernon's Ann. Civ. St. art. 988 (repealed; see,
now. this section) prohibiting conflicts of inter- A trustee of a Mental Health/Mental Retards-
est involving city officers was inapplicable to tion Community Center was a local public offl-
home rule cities, and trial court therefore acted cer within Vernon's Ann. Civ. St. art. 988b (re-
effective date ol
properly in dismissing suit by citizens of home pealed; see, now, this section). Op. Atty. Gen. L,~ governil
rule city who sought to nullify city contracts on 1986, No. JM-424. § 1, see note fol
ground of conflict of interest on part of mayor.
Woolridge v. Folsom (Civ. App. 1978) 564 2. Business entity Section 2 of
A city is not a "business entity" for purposes provides:
S.W.2d 471.
A member of the City of Dallas Planning and of chapter 171 of the Local Government Code,
Zoning Commission is a 'local public offi- regulation of conflicts of interest of officers of "The change
cial' subject to the requirements of chapter 171 local governments. Op. Atty. Gen. 1993, No. tion 171.002, L~
affect a violatio~
of the Local Government Code which governs DM-267. ment Code, tha
conflicts of interest on the part of local public Section 171.004(a) of the Local Government date of this Ac
officials. Op. Any. Gen. 1994, No. DM-309. Code requires a member of an appraisal district
An individual whose spouse operates a bail board who has performed property tax consult'
bond business may be appointed as investigator lng services in a taxpayer protest before the
for the office of criminal district attorney and appraisal district board t,o disclose the nature
perform the duties of such position without vio- and extent of the member s interest, but only if Officers and P
lating the prohibition against conflict of interest the member has a substantial interest in a busi- WESTLAW Ti
ness entity or real property involved in the C.J.S. Officers
204, 255 to
by a local public offic ,a,l; though investigator is
a "local public official within former Vernon's matter. Op. Atty. Gen. 1993, No. DM-259.
398
OFFICERS & EMPLOYEES--GENERALLY § 171.O02
tlPLOYEEs ch. 171
Title $
· A county auditor who is employed as the officers of local governments set forth in Chap-
3). executive director of a private, nonprofit hous- ter 171 of the Local Government Code, if his
i 991. lng corporation which receives funding from income as executive director exceeds 10 percent
the county is required to adhere to the require- of his gross income for the pcevious year. Op.
raents on regulation of conflicts of interest of Any. Gen. 1994, No. DM-303.
§ 171.002. Substantial Interest in Business Entity
ag body or (a) For purposes of this chapter, a person has a substantial interest in a
any district business entity if:
al appraisal
[ entity who (1) the person owns 10 percent or more of the voting stock or shares of the
business entity or owns either 10 percent or more or $15,000 or more of the
fair market value of the business entity; or
), firm, cot-
rust, or any ~ (2) funds received by the person from the business entity exceed 10 percent
of the person's gross income for the previous year.
(b) A person has a substantial interest in real property if the interest is an
equitable or legal ownership with a fair market value of $2,500 or more.
(c) A local public official is considered to have a substantial interest under
this section if a person related to the official in the first degree by consanguinity
or affinity, as determined under Chapter 573, Government Code, has a substan-
tial interest under this section.
Acts 1987, 70th Leg., ch. 149, § 1, elf. Sept. 1, 1987. Amended by Acts 1989, 71st Leg.,
ch. 1, § 40(a), elf. Aug. 28, 1989; Acts 1991, 72nd Leg., ch. 561, § 37, elf. Aug. 26, 1991;
Acts 1995, 74th Leg., ch. 76, § 5.95(27), eff. Sept. 1, t995; Acts 1997, 75th Leg., ch. 849,
§ 1, elf. Sept. 1, 1997.
Revisor's Note
[repealed: see,
$ decision mak- The source law refers to a person related "in the first or second degree by
tobit of former either affinity or consanguinity" to a local official. The reference to the "first
[repealed; see, degree" is omitted from the revised law because that concept is included within
.Gen.1987, No. the meaning of the revised terminology "within the second degrec'"
Mental Retarda-
~ocal public offi- Historical and Statutory Notes
t. art. 988b (re-
). Op.Atty. Gen. Law governing offenses committed prior to prosecuted and a penalty imposed as if the law
effective date of Acts 1987, 70th Leg., ch, 362, had not been changed by this Act, and the
§ 1, see note following § 171.003. former law is continued in effect for that pur-
Section 2 of Acts 1997, 75th Leg., ch. 849 pose,"
ty" for purposes provides: Prior Laws:
~vernment Code, "The change in law made by this Act to Sec-
.~st of officers of tion 171.002, Local GOvernment Code, does not Acts 1983, 68th Leg., p. 4079, ch. 640, § 2.
.Gen.1993, No. affect a violation of Chapter 171, Local Govern- Acts 1987, 70th Leg., ch, 362, § 1.
ment Code, that occurred before the effective Vernon's Ann. Civ. St. art. 988b, § 2.
~cal Government date of this Act. The prior violation may be Acts 1989, 71st Leg., ch. 1, § 40(b).
appraisal district
,erty tax consult-
otest before the Library References
close the nature
erest, but only if Officers and Public Employees ~='110, 121. Texts and Treatises
WESTLAW Topic No. 283.
nterest in a busi- 60 Texas Jut 3d, Pub Off § 145.
involved in the C.J.S. Officers and Public Employees § 197 to
204, 255 to 259.
DM-259. 399
§ 171.002 PUBLIC OFFICERS & EMPLOYEEs OFFICERS
Title $ Ch. l?I
Notes of Decisions Subdivision
art. 988b (repe
In general I 3. Funds received from entity ed board meml
Conflicts between particular positions 7 For purposes of determining conflict of inter- sion fund from
Construction with other laws 2 est by public official, subd.(a)(2) of this section any business e
Funds received from entity 3 included funds received indirectly from business ownership inte
Prior contracts 6 entity only to the extent that entity participated was in busines
Public officials contracting with governing hod- in significant way in causing intervening party Arty. Gen. 1985,
les 8 to engage in particular transaction with public County clerk
Questions of fact 9 official. Cross v. Dallas County Flood Control purchase an in
Real property interests 5 Dist. No. I (App. 5 Dist. 1989) 773 S.W.2d 49. age it part-tim~
Voting stock or interest 4 Finding that members of flood control district complete arm'
who voted to approve district's acquisition of company. Op.~
easement over land owned by district president,
I. In general at price 16 times what the president had paid 5. Real prope~
for land two years earlier, had violated conflict- Tenant board
'~' Under Texas law, the conflict of interest stat- of-interest statute by acting in matter in which project did not
utes [Vernon's Ann.Civ. St. art. 988 (repealed; they had substantial interest was sufficiently interest describ
see, now, this section) and Vernon's Ann. P.C. supported by evidence that members had re- 988b (repealed
(1925) arts. 371 and 373 (repealed; see, now, ceived large sums of money from president and Atty. Gen.1985,
V.T.C.A. Penal Code, § 39.01)] required that from president's son-in-law that exceeded ten
the prohibited interest by a city official be a percent of their gross annual income; accord- 6. Prior contr~
"personal pecuniary interest" in order to invali- ingly, transaction was voidable by district. Del- It was a viola
date a contract between the city and another, las County Flood Control Dist. No. 1 v. Cross 988b (repealed;
Crystal City v. Del Monte Corp., C.A.5 (App. 5 Dist. 1991) 815 S.W.2d 271, writ de- former Vernon'
(Tex.)1972, 463 F.2d 976, certiorari denied 93 nied. pealed; see, nox
S.Ct. 464, 409 U.S. i023, 34 L.Ed.2d 315. for a person el
In deciding whether public official has sub- main pecuniari]
Fact that no influence was exercised is not stantial interest in business entity, within mean- ously entered in
determinative of whether contract was violative lng of statutory conflict-of-interest rules, court the city sold w
of conflict of interest ordinance and statutes, may consider indirect payments to official if customers. Op.
Delta Elec. Const. Co. v. City of San Antonio business entity in question participated in caus-
(Civ. App. 1969) 437 S.W.2d 602, ref. n.r.e., lng funds to reach official. Dallas County Flood 7. Conflicts bel
Superintendent in charge of streets for the Control Dist. No. 1 v. Cross (App. 5 Dist. 1991) Positions of ~
city of Madisonville is not precluded as a matter 815 S.W.2d 271, writ denied, fireman are not
of law from engaging in the writing of bail A city councilman was "interested in" his Op,Atty. Gen. 19?
bonds. Op. Atty. Gen. 1986, No. JM-598. contract of employment by the community ac- Const. Art. It
tion agency of the city, county, and school dis- paid from state
2. Construction with other laws trict, a part of the expense of which was pa~,able member only if
Chapter i71 of the Local Government Code, from the city treasury, and could not accept tion for city cou
which prohibits conflicts of interest by officers such employment so long as he remained a city No. MW-230.
of local governments, prevails over the county council member; such action was not in viola- An individual
auditor oath of office provision, Local Govern- tion of Vernon's Ann. P.C. (1925) art. 373 (re- and city council
ment Code § 84.007(b), which prohibits person- pealed; see, now, V.T.C.A. Penal Code, § 39.0I) by virtue of the ~
al interest in a contract with the county by the which was inapplicable. Op.Atty. Gen. 1970, No. patibility; a pe~
county auditor, to the extent of conflict. Op. M-714. city,~ouncil me
Atty. Gen. 1994, No. DM-303. 4. Voting stock or interest fire chief. Op. At
Transactions which are not subject to Local public official has substant al nterest
§ 171.001 et seq. are still subject to § 81.002. in business entity, for purposes of statute requir-
Op.Atty. Gen. 1989, No. JM-1090. lng public official with substantial interest in § 171.0025
Section 23.75 of the Education Code, under business entity to file affidavit stating nature
which a community college district trustee who and extent of interest and to abstain from deci-
is also a stockholder, officer, director or em- sions having economic effect on business entity, This chapt~
ployee of the district's depository bank may vote if official owns ten percent or more of voting authority crc,
on matters which would result in an expendi- stock or shares of business entity, owns either other particip
ture and thereby decrease the funds on deposit ten percent or more or $5,000 or more of fair
in the depository bank, constitutes an implied market value of entity, or is related in first- authority wot
exception to the provisions of former Article degree Of consanguinity or affinity to person college, or un
988b, V.T.C.S. (see, now, Loc. Coy. Code having substantial interest in business entity.
§ 171.001 et seq.). (Op.Atty. Gen. 1969, No. Walk v. State (App. I3 Dist. 1992) 841 s.w.2d (1) a SOUl
JM-331, overruled). Op. Atty. Gen. 1986, No. 430, on rehearing, rehearing overruled, petition (2) a bus
JM-583. for discretionary review refused, guishable fi
40O
;MPLOYEEs oFFICERS & EMPLOYEES--GENERALLY § 171.0025
Title $ ch. 171
Subdivision 2(a)(l) of Vernon's Ann. Civ.St. 8. Public officials contracting with governing
art. 988b (repealed: now, this section) prohibit- bodies
ed board member of Dallas police and fire pen- Local Govermnent Code § 171.00I et seq.
zonflict of inter, sion fund from voting to invest pension funds in (establishing financial disclosure and recusal re-
) of this Section any business entity in which he held a $2,500 quirements for a local public officer who has a
ly from business ownership interest, whether or not that interest substantial interest in a business entity that will
try participated was in business entity which issues stock. Op. receive an economic benefit from an official
~tervening party Arty. Gen. 1985, No. JM-291. action by the governmental body on which the
ion with public County clerk may, without conflict of interest, officer serves) applies to transactions between a
~ Flood Control purchase an interest in title company and man- county and the county judge or another member
773 S.W.2d 49. age it part-time; however, he must maintain a of the commissioners court. Op.Atty. Gen.1989,
l control district complete arm's length relationship with title No. JM-1090.
~ acquisition of company. Op.Atty. Gen. 1985, No. JM-310. Whether Local Government Code § 171.001
strict president, et seq. or Tax Code § 6.036 prohibits a member
~ident had paid 8. Real property interests
iolated conflict. Tenant board member's residency in housing of the hoard of directors of an appraisal district
hatter in which project did not implicate him in any conflict of from acting as a real estate agent Ior a vendor
~tas sufficiently interest described by Vernon's Ann. Civ. St. art. who sells real property to the appraisal district
.~mbers had re- 988b (repealed; see, now, this section). Op. depends on the facts of the specific transaction.
n president and Arty. Gen. 1985, No. JM-308. Op.Atty. Gen. 1990, No. JM-I 187.
City cannot pay user fees to city councilmen
tt exceeded ten 6. Prior contracts who operate a county landfill dump under con-
~come; accord- It was a violation of Vernon's Ann. Civ. St. art. tract with county. Op. Any.Gen. 1980, No.
~y district. Dal~ 988b (repealed; see, now, this section), but not MW-155.
No. I v. Cross former Vernon's Ann. P.C. (1925) art. 373 (re-
d 271, writ de- pealed; see, now, V.T.C.A. Penal Code, § 39.01) Vernon's Ann. Civ. St. art. 988b (repealed; see,
for a person elected city commissioner to re- now, this section) did not prohibit constable
ffficial has sub- main pecuniarily interested in a contract previ- from contracting with government of county in
y, within mean- ously entered into by him with the city whereby which his precinct was located. Op. Atty. Gen.
est rules, court the city sold water to him for resale to rural 1985, No. JM-270.
ts to official if customers. Op,Atty. Gen. 1975, No. H-638. County judge, a licensed pharmacist, could
cipated in caus- provide medicines to indigent persons for reim-
as County Flood 7. Conflicts between particular positions bursement by the county in accordance with the
p. 5 Dist. 1991) Positions of city councilman and volunteer provisions of this chapter. Op.At_ty. Gen. 1989,
fireman are not incompatible as a matter of law. No. JM-1090.
erested in" his Op. Atty. Gen. i978, No. LA-154.
community ac- Const. Art. 16, § 40, permits school teacher 9. Questions of fact
and school dis- paid from state funds to serve as city council Material issues of fact precluding summary
ich was payable member only if teacher receives no compensa- judgment existed as to whether public official's
,uld not accept tion for city council service. Op. Atty. Gen. 1980, receipt of $3,500 from business entity for ser-
remained a city No. MW-230. vices pertaining to records management for
'as not in viola- An individual may not serve as both fire chief property owner amounted to conflict of interest
5) art. 373 (re- and city council member of the City of Quitman invalidating public official's vote to approve set-
I Code, § 39.01) by virtue of the common law doctrine of incom- tlement agreement for purchase of flood control
v. Gen. 1970, No. patibility; a person who accepts the office of improvement easement. Cross v. Dallas Count),
city council member automatically resigns as Flood Control Dist. No. 1 (App. 5 Dist. 1989)
fire chief. Op. Atty. Gen. 1982, No. MW432. 773 S.W.2d 49.
,fstatute requir- § 171.0025. Application of Chapter to Member of Higher Education Au-
~tial interest in
stating nature thority
;tain from deci-
business entity, This chapter does not apply to a board member of a higher education
more of voting authority created under Chapter 53, Education Code, unless a vote, act, or
ity, owns either other participation by the board member in the affairs of the higher education
or more of fair authority would provide a financial benefit to a financial institution, school,
.-elated in first-
inity to person college, or university that is:
business entity. (1) a source of income to the board member; or
92) 841 S.w.2d
:rruled, petition (2) a business entity in which the board member has an interest distin-
guishable from a financial benefit available to any other similar financial
401
§ 171.0025 PUBLIC OFFICERS & EMPLOYEES OFFICERS &
Title 5 Gh. 171
institution or other school, college, or university whose students are eligible
for a student loan available under Chapter 53, Education Code. Officers and Pub!
WESTLAW Topit
Added by Acts 1989, 71st Leg., ch. 1, § 41(a), elf. Aug. 28, 1989. C.J.S. Officers a~
204, 255 to 25~
Failure to file
Historical and Statutory Notes by local gover
Prior Laws: Acts 1989, 71st Leg., ch. 1, § 41(b).
Acts 1987, 70th Leg., ch. 659, § 3. Vernon's Ann. Civ. St. art. 988b, § 1, subd. (1).
In general 1
Notes of Decisions Voting 2
In general I public officials), does not apply to a vote on a
matter involving Southwest Texas State Univer-
sity by a member of the San Marcos City Coun- 1. In general
1. In general cil who is employed by the Llniversity or who Conflict-of-intere
Former article 988b, V.T.C.S., recodified as has a substantial interest in the University proof of evil mol
chapter 171 of the Local Government Code (re- through its spouse's employment there. Op. Control Dist. No. 1
lating to economic conflicts of interest by local Atty.Gen. 1988, No. JM-852. 815 S.W.2d 271, w
- A city council mt
contractor which
with a subcontrac
§ 171.003. Prohibited Acts; Penalty the city council as:
lng the member ac
(a) A local public official commits an offense if the official knowingly:
(1) violates Section 171.004; § 171.004.
(2) acts as surety for a business entity that has work, business, or a (a) Ifa local
contract with the governmental entity; or real property,
(3) acts as surety on any official bond required of an officer of the involving the b~
and extent of
governmental entity, matter if:
(b) An offense under this section is a Class A misdemeanor. (1) in the c
Acts 1987, 70th Leg., ch. 149, § 1, elf. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., matter will
ch. 1, § 40(a), eft. Aug. 28, 1989. distinguishal:
(2) in the
Historical and Statutory Notes foreseeable t
Section 4 of Acts 1987, 70th Leg., ch. 323 penalty imposed under the former law as if this on the value
provides: Act had not been enacted. The former law is (b),.,The arid
"An offense committed under Chapter 640, continued in effect for this purpose, mental entity.
Acts of the 68th Legislature, Regular Session, "(b) For the purposes of this section, an of-
1983 (Article 988b, Vernon's Texas Civil Stat- lense is committed before the effective date of (C) If a local
utes), before the effective date of this Act is this Act if any element of the offense is commit- Subsection (a),
governed by the law in existence on the date the ted before that date." ii1 the matter
offense occurred, and the former law is contin-
ued in effect for that purpose." governmental
Section 2 of Acts 1987, 70th Leg., ch. 362 Prior Laws: who are likewi
provides: Acts 1983, 68th Leg., p. 4079, ch. 640, § 3. on the same off
"(a) The change in the law made by this Act Acts 1987, 70th Leg., ch. 323, § 1.
does not affect an offense committed under the Acts 1987.70th Leg., ch. 362, § i. Acts 1987, 70th ]
law as it existed before the effective date of this Vernon's Ann. Civ. St. art. 988b, § 3. ch. 1, § 40(a), eft
Act. Such an offense may be prosecuted and a Acts 1989, 71st Leg., ch. 1, § 40(b).
Cross References The sourc
Punishment, class A misdemeanors, see V.T.C.A., Penal Code § 12.21. official in th
402
§ 171.004
RS & OFFICERS & EMPLOYEES---GENERALLY
Tltl, ch. 171
Library References
students are eli
Code. officers and Public Employees ~=ql0, 121. formations and indictments, see McCor-
WESTLAW Topic No. 283. mlck et al., 7 Texas Practice § 40.06 (10th
C.J.S. Officers and Public Employees § 197 to ed.).
204, 255 to 259.
Failure to file interest in business as required Texts and Treatises
by local government code, complaints, in- 60 Texas Sur 3d, Pub Off § 145.
ch. 1, § 41(b).
art. 988b, § i, subd. (1). Notes of Decisions
city job, but the affected member of the city
in general I council does not automatically vacate his or her
Voting 2 office in the event that the city council so con-
not apply to a vote on a tracts. Op. Atty. Gen. 1984, No. JM-171.
west Texas State Univer.
e San Marcos City Coun- 1. In general
y the University or who Confl ct of-interest statute does not require 2. Voting
proof of evil motives. Da as County Food
erest in the University A school trustee who engaged in school board
~mployment there. Op. Control Dist. No. 1 v. Cross (App. 5 Dist. 1991) deliberations heading up to a vote or decision on
852. 815 S.W.2d 271, writ denied, a matter in which he was substantially interest-
A city council may not contract with a general
contractor which has previously contracted ed participated in a vote or decision of that
matter within § 3(a)(l) of Vernon's Ann. Civ. St.
w th a subcontractor employing a member of
the city council as an off cer, if the firm employ- art. 988b (repealed; now, this section). Op.
, knowingly: lng the member acts as a subcontractor on the Atty. Gen. 1985, No. JM-379.
§ 171.004. Affidavit and Abstention From Voting Required
~rk, business, or a (a) If a local public official has a substantial interest in a business entity or in
real property, the official shall file, before a vote or decision on any matter
an officer of the involving the business entity or the real property, an affidavit stating the nature
and extent of the interest and shall abstain from further participation in the
matter if:
r. (1) in the case of a substantial interest in a business entity the action on the
Acts 1989, 71st Leg., matter will have a special economic effect on the business entity that is
distinguishable from the effect on the public; or
(2) in the case of a substantial interest in real property, it is reasonably
foreseeable that an action on the matter will have a special economic effect
the former law as if this on the value of the property, distinguishable from its effect on the public.
ted. The former law is (b) The affidavit must be filed with the official record keeper of the govern-
lis purpose, mental entity.
s of this section, an
>re the effective date of (c) If a local public official is required to file and does file an affidavit under
if the offense is commit- Subsection (a), the official is not required to abstain from further participation
in the matter requiring the affidavit if a majority of the members of the
governmental entity of which the official is a member is composed of persons
who are likewise required to file and who do file affidavits of similar interests
>. 4079, ch. 640, § 3. on the same official action.
:h. 323, § 1.
:h. 362, § 1. Acts 1987, 70th Leg., ch. 149, § 1, elf. Sept. 1, 1987. Amended by Acts 1989, 71st Leg.,
~rt. 988b, § 3. ch. 1, § 40(a), eft. Aug. 28, 1989.
h. l, § 40(b).
Revlsor's Note
The source law refers to a substantial interest of "a person related to that
official in the first or second degree by either affinity or consanguinity." That
403
§ 171.004 PUBLIC OFFICERS & EMPLOYEES OFFICERS
Title $ Ch. 171
reference is omitted from the revised law because the concept is covered by affidavits of si
cial action. O
Section 171.002(c). An appraisal
Historical and Statutory Notes lect delinquen~
not require hi
Law governing offenses committed prior to Acts 1987, 70th Leg., ch. 323, § 2. this chapter fr
effective date of Acts 1987, 70th Leg., chs. 323 Acts 1987, 70th Leg., ch. 362, § 1. establishing p
and 362, see notes following § 171.003. Vernon s Ann. C'v. St. art. 988b, § 4. chief appra
Acts 1989, 71st Leg., ch. 1, § 40(b). JM-1060.
Prior Laws:
Acts 1983, 68th Leg. p. 4079, ch. 640, § 4. 3. Actionsan
Defendant,
Library References ingly failing
Officers and Public Employees ~'i 10, 121. plaints, informations and indictments, see est in busines
WESTLAW Topic No. 283. McCormick et al., 7 Texas Practice § 40.07 abstain from
C.J.S. Officers and Public Employees § 197 to (10th ed.). plies from en
204, 255 to 259. interest, failed
Failure to abstain from decision to purchase court erred in
as required by local government code, corn- of knowledge,
fendant object
Notes of Decisions have had si>et
In general I lng, rehearing overiaaled, petition for discretion- "will have eco
and to state's
Actions and proceedings generally 3 ary review refused, to prove that
In£ormatlonorlndictment 4 Section 81.002 of the Local Government law, to daugh
Substantial interest 2 Code, which requires the county judge and each State (App. 12
county commissioner to take an oath that he rehearing, tee
will not be directly or indirectly interested in a cretionary few
1. In general contract with the county, is impliedly repealed
A member of a county salary grievance corn- to the extent it is inconsistent with chapter 171 State's jury
mittee is not barred from voting on his or her of the Local Government Code which authorizes charged with
own salary grievance by chapter 17I of the a county to enter into contracts or take actions of substantial
Local Government Code. Op. Atty. Gen. 1998, in which a member of the commissioners court knowingly faf
LO 98497~ is pecuniarily interested to the same extent that purchase offic~
Based on the facts provided, it does not ap- other local governmental bodies may take such had substanti
pear that this chapter bars the Wood County actions. Op~Atty. Gen. 1993. No. DM-279. though it cont:
that defendam
Commissioners Court from approving the pay- 2. Substantial interest even though
ment of invoices, submitted to the commission-
ers court by the executive director of the Wood Home rule city council member may be re- statement thai
County Industrial Commission, to an inn owned quired to abstain from voting on zoning matter the law and j
by a member of the Wood County Industrial affecting territory in which member's residence was not, since
Commission and his wife. Op.Atty. Gen. 1998, is located. Op.Atty. Gen. 1992, No. DM-130. tion from deft
LO 98--112. Section 171.004(a)(1), which requires a local
County judge's conviction for knowingly fail- public official to abstain from voting and file an
ing to file affidavit of substantial interest in affidavit if he or she has a substantial interest in § 171.00.
business entity owned by son-in-law and failing a business entity and the action on the matter
to abstain from decision to purchase office sup- will have a special economic effect on the busi- (a) The g
plies from entity was supported by evidence ness entity, extends to an action of a zoning
that, when county auditor interrupted meeting commission that will have a special economic any budget
between judge and son-in-law, judge signed pur- effect on a business entity that represents an which a me
chase order, quickly asked son-in-law which entity or person with an interest in a matter
copy he should receive, tossed pad of purchase before the commission. Op.Atty. Gen. 1994, No. (b) Excet
orders into his desk drawer, and told auditor DM-309. participate
that there was nothing on purchase order, audi- A city council member violates this section by
tor told judge that he was required to file state- voting on payment of bills submitted by an
ment with county clerk's office, and judge had entity in which he holds a substantial interest. (1) the
told former employee that he would have to and he also violates th s sect on by voting on the
change name of his business and put it in some- purchase of goods or services provided by a sole (2) the
one else's name so that he could buy from it as source business entity in which he has a sub-
judge without conflict of interest. Walk v. State stantial interest, unless a majority of members Acts 1987, 71
(App. 13 Dist. 1992) 841 S.W.2d 430, on rehear- of the city council are required to file and do file amended by
404
S & EMPLOYEEs oFFICERS & EMPLOYEES--GENERALLY § 171.005
Title $ ch. 171
~pt is covered by affidavits of similar interests on the same offi- garded county purchasing procedures, and
rial action. Op. Atty. Gen. 1988, No. JM-846. since statements constituted valid plea for law
enforcement rather than request to jury to con
An appraisal district director's contract to col- vict defendant based upon his failure to follow
lect delinquent taxes for a local taxing unit does proper procedure. Walk v. State (App. 13 Dist.
not require him to recuse himself pursuant to
h. 323, § 2. this chapter from participation in board actions 1992) 841 S.W.2d 430, on rehearing, rehearing
h. 362, § 1. establishing policy to be implemented by the overruled, petition for discretionary review re-
m. 988b, § 4. chief appraiser. Op. Atty. Gen. 1989, No. fused.
~. 1, § 40(b). jM-1060. 4. Information or Indictment
3. Actions and proceedings generally Information charged offense with sufficient
Defendant, county judge charged with know- specificity to enable defendant to know what he
ingly failing to file affidavit of substantial inter- was required to defend against, where language
~ and indictments, see est in business entity and knowingly failing to in information closely followed language of stat~
Texas Practice § 40.07 abstain from decision to purchase office sup- ute and charged that defendant, a county judge,
plies from entity in which he had substantial knowingly failed to file affidavit of substantial
interest, failed to preserve issue of whether trial interest in business entity and knowingly failed
court erred in failing to instruct jury on element to abstain from decision to purchase specified
of knowledge, where, at charge conference, de- office supplies from business entity owned by
fendant objected only to use of phrase "would his son-in-law; it was not necessary to specifi-
have had special economic effect" rather than cally allege that defendant had knowledge of
petition for discretion- w Il have economic effect, as stated m statute, requirements to file affidavit and abstain from
and to state's failure to elect whether it intended decision. Walk v. State (App. 13 Dist. 1992)
to prove that defendant was related to son-in- 841 S.W.2d 430, on rehearing, rehearing over-
e Local Government
:ounty judge and each law, to daughter, or to both of them. Walk v. ruled, petition for discretionary review refused.
take an oath that he State (App. 13 Dist. 1992) 841 S.W.2d 430, on
lirectly interested in a rehearing, rehearing overruled, petition for dis- Information charging that defendant, a coun-
is impliedly repealed cretionary review refused, ty judge, knowingly failed to file affidavit of
substantial interest in business entity and know-
tent with chapter 171 State's jury argument, in trial of county judge ingly failed to abstain from decision to purchase
2ode which authorizes charged with knowingly failing to file affidavit
~tracl~ or take actions of substantial interest in business entity and specified office supplies from entity sufficiently
pleaded offense to place defendant on notice of
commissioners court knowingly failing to abstain from decision to facts forming basis of charge and to bar further
~ the same extent that purchase office supplies from entity in which he
bodies may take such had substantial interest, was proper, even prosecution for same offense; state sufficiently
3, No. DM-279. though it contained statement that it had proven alleged that decision forming basis of offense
that defendant "didn't follow normal procedure was defendant's decision to purchase specified
even though that's not what's charged," and office supplies from business entity in which his
member may be re- statement that defendant thought he was above son-in-law had substantial interest. Walk v.
lng on zoning matter the law and jury needed to show him that he State (App. 13 Dist. 1992) 841 S.W.2d 430, on
i member's residence was not, since witnesses testified without object rehearing, rehearing overruled, petition for dis-
92, No. DM-130. tion from defendant that defendant had disre- cretionary review refused.
hich requires a locaI
Dm voting and file an ~.,
· ubstantial interest in § 171.005, Voting on Budget
action on the matter
ic effect on the busi- (a) The governing body of a governmental entity shall take a separate vote on
action of a zoning
a special economic any budget item specifically dedicated to a contract with a business entity in
' that represents an which a member of the governing body has a substantial interest.
interest in a matter
,.Arty. Gen. 1994, No. (b) Except as provided by Section 171.004(c), the affected member may not
flatas this section by participate in that separate vote. The member may vote on a final budget if:
!s submitted by an (1) the member has complied with this chapter; and
substantial interest,
ion by voting on the (2) the matter in which the member is concerned has been resolved.
s provided by a sole
hich he has a sub-
~ajority of members Acta 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987. Renumbered from § 171.006 and
ed to file and do file amended by Acts 1989, 71 st Leg., ch. 1, § 40(a), elf. Aug. 28, 1989.
4O5
§ 171.005 PUBLIC OFFICERS & EMPLOYEES OFFICERS &
Title $ Ch. 171
Historical and Statutory Notes (b) This chap~
A former § 171,005 relating to authorization Acts 1989, 71st Leg., ch, 1, § 40(b). ordinances defil
of contracts and deleted by Acts 1989, 71st Leg.,
ch. 1, § 40(a), was derived from: Prior Laws: Amended by Acts
Acts 1983, 68th Leg., p. 4079, ch. 640, § 5. Acts 1983, 68th Leg., p. 4079, ch. 640, § 5.
Acts 1987, 70th Leg., ch. 323, § 3. Acts 1987, 70th Leg., ch. 362, § I.
Acts 1987, 70th Leg., ch. 362, § i. Vernon s Ann. C'v. St. art. 988b, § 5(b).
Vernon's Ann.Civ. St. art. 988b, § 5(a). Acts 1989, 71st Leg., ch. 1, § 40(b). A former § 171.0,
1989, 71st Leg., c
Library References from:
Officers and Public Employees ¢=i 10, 121. Sole source suppliers, see Brooks, 35 Texas Acts 1983, 68th
WESTLAW Topic No. 283. Practice § 18.9.
C.J.S. Officers and Public Employees § 197 to
204, 255 to 259. officers and Publi
WESTLAW Topic
C.J.S officers an~
§ 171.006. Effect of Violation of Chapter 204, 255 to 259
The finding by a court of a violation under this chapter does not render an
action of the governing body voidable unless the measure that was the subject
of an action involving a conflict of interest would not have passed the governing In general I
body without the vote of the person who violated the chapter.
1. In general
Acts 1987, 70th Leg., ch. 149, § 1, elf. Sept. 1, 1987. Renumbered from § 171.008 by Vernon's Ann. Civ
Acts 1989, 71st Leg., ch. 1, § 40(a), eft. Aug. 28, 1989. now, this section)
concerning the pe~
Historical and Statutory Notes
Former § 171.006, relating to budget voting, Acts 1987, 70th Leg., ch. 362, § 1. § 171.008.
was renumbered as § 171.005 by Acts 1989, Vernon s Ann. C'v. St. art. 988b, § 6.
71st Leg,, ch. 1, § 40(a). Acts 1989, 71st Leg., ch. 1, § 40(b).
Prior Laws: § 171.009.
Acts 1983, 68th Leg., p. 4079, ch. 640, § 6.
It shall be la~
Library References of directors of
officers and Public Employees ~:~ 110, 121 ~ Texts and Treatises compensation o
WESTLAW Topic No. 283. 60 Texas Jur 3d, Pub Off § 149. nonprofit entity
C.J.S. Officers and Public Employees § 197 to
204, 255 to 259. Added by Acts 19~
Notes of Decisions
In general 1 ernmental body is pecuniarily interested was Section 3 of the 1
voidable under the conditions set out in Vet- "A local public o~
non s Ann.C'v. St. art. 988b (repealed; see, now, tive date of this Ac
1. In general this section). Op. Atty. Gen.1986, No. JM~24.
A contract between a governmental body and cer, or director on
a private entity in which a member of the gov-
County judge or co~
§ 171.007. Common Law Preempted; Gumulative of Municipal Provisions ofcorporatio:
(a) This chapter preempts the common law of conflict of interests as applied
to local public officials, officers and Publ~
WESTLAW Topic
406
~ EMPLOYEEs OFFICERS & EMPLOYEES-GENERALLY § 171.009
Title $ ch. 171
(b) This chapter is cumulative of municipal charter provisions and municipal
I, § 40Co). ordinances defining and prohibiting conflicts of interests.
Amended by Acts 1989, 71st Leg., ch. 1, § 40(a), elf. Aug. 28, 1989.
179, ch. 640, § 5.
;62, § 1, Historical and Statutory Notes
}88b. § 5Co).
, § 40(b). A former § 171.007 relating to limitations on Acts i987, 70th Leg., ch. 149, § 1.
common law remedies and deleted by Acts Acts 1987.70th Leg., ch. 362,§ 1.
1989, 71st Leg., ch. 1, § 40(a), was derived Vernon'sAnn.Civ. St. art. 988b, § 6.
from: Acts 1989, 71st Leg., ch, 1, § 40(b).
-~ Brooks, 35 Texas Acts 1983, 68th Leg., p. 4079, ch. 640, § 6.
Library References
Officers and Public Employees ~ 110, 121. Voidability for conflict of interest, see Brooks,
WESTLAW Topic No. 283. 35 Texas Practice § 18.45.
C.J.S. Officers and Public Employees § 197 to
204, 255 to 259.
~ not render an Notes of Decisions
was the subject
d the governing in general I public official in contracts entered into by the
governmental body they serve; governmental
body could contract with a private entity in
I. in general which a member of the governmental body was
om § 171.008 by Vern0n's Ann. Civ. St. art. 988b (repealed; see, pecuniarily interested if he followed the disclo-
now, this section) modified the common law sure and recusal procedure stated in such arti-
concerning the pecuniary interest of a local cie. Op.Atty. Gen. 1986, No. JM-424.
62,§ 1. § 171.008. Renumbered as § 171.006 by Acts 1989, 71st Leg., ch. 1,
ggb,§ 6. § 40(a), eft. Aug. 28, 1989
§ 40Co).
§ 171.009. Service on Board of Corp0ration for No Compensation
It shall be lawful for a local public official to serve as a member of the board
of directors of private, nonprofit corporations when such officials receive no
compensation or other remuneration from the nonprofit corporation or other
149. nonprofit entity·
Added by Acts 1989, 7lst Leg., cb.. 475, § 2, eff. Aug. 28, 1989.
Historical and Statutory Notes
rily interested was Section 3 of the 1989 Act provides: corporation, including a nonprofit corporation,
and received funds from that corporation may ,~'
ns set out in Vet- "A local public official who, before the effec- not be held liable for, prosecuted for, or be
-epealed; see, now, rive date of this Act, served as a member, offi- subject ,to removal from office as a result of that
,986, No. JM-424. cer, or director on the board of directors of a service.
Cross References
County judge or county commissioner, service as officer or director or member of governing body
ipal Provisions of corporation, see V.T.C.A., Local Government Code § 81.002.
'ests as applied Library References
Officers and Public Employees ~=~110, 121. C.J.S. Officers and Public Employees § 197 to
WESTLAW Topic No. 283. 204, 255 to 259.
407
§ 171.009 PUBLIC OFFICERS & EMPLOYEES
Title $
Notes of Decisions
In general 1 private, nonprofit corporation, permits the
trustee of an independent school district to CI-
serve as a director of a private, non-profit cor-
I. in general potation which does business with the school
The common-law doctrine prohibiting con- district, provided he or she receives no compen-
flicts of interest does not preclude a city corn- sation or other remuneration for doing so. Op. Section
missioner from serving on a non-profit, no- Arty. Gen. 1993, No. DM-256. 172.001.
share corporation's board of directors because 172.002.
chapter 171 of the Local Government Code ex- If a city councilman of the city of Lubbock
pressly permits a city commissioner to do so, does not have a substantial interest in the Texas 172.003.
provided he or she receives no compensation of Tech Research Foundation, this chapter does 172.004.
other remuneration. Op. Atty. Gen.1992, No. not bar him from participating in votes and 172.005.
DM-194. decisions of the city council concerning agree- 172.006.
Section 171.009 of the Local Government ments between the city and the Texas Tech 172.007.
Code relating to service by a local public official University and Health Sciences Center Research 172.008.
as a member of the board of directors of a Foundation. Op.Atty. Gen. 1989, No. JM-1065. 172.009.
172.010.
172.011.
172.012.
172.013.
172.014.
172.015.
Prohibitior
V.T.~
Medical
35 Tex
§ 172.~
This c
Uniform
Added by
~-' WESTL
§ 172.1
The p~
(1)
long-t,
(2)
able e
es at 1
(3)
subdix
tence
408
pUBLIC OFFICERS & EMPLOYEES § 171.010
~ifle 5
§ 171.005. ¥oting on Budget
Research References
Encyclopedias Treatises ~d P~ctice
~ J~. 3d ~b~c 0ffice~ & Employe~ ~ 219, B~o~, ~ T~. ~ae. Se~es ~ 3.12, Co~ie~ of
D~qu~on ~ A~ In~resL
~ J~. 3d ~b~c Office~ & Employes ~ B B~o~, 36 Tex. ~ac. ~fies ~ i8.37, Co.ct of
Ref., Di~ion~ Refe~n~s. In~rest~ne~l S~tu~.
~ 171.006. Effect of Violation of Chapter
Rese~ch References
~atises ~d P~ctice
Br~, ~ T~ ~. Se~ ~ 18.37, ~ct of
In~ner~ S~tu~.
{ 171.007. Common Law Preempted; Cumulative of Municipal Pro~sions
~se~ch References
~eatises ~d Practice Al& B~, 36 T~. ~ac. ~fies ~ 1,8.45, Voidab~
Br~, ~ T~ ~c. ~fies ~ 3.12, Co~ of for Co~ct of In~t
In~res~
No~s of Decisions
1. In ~ne~l co~c~ of M~t ~d mod~es ~cfion 81.~2 of
~e L~ ~vement C~e ~ ~e emnt ~ey
C~p~ 171 of ~e ~ ~vement Code p~Mbit a ~o~ty ~sioner ~m l~Mg
~m a ~=~ co--loner ~ have ~ M~t p~y ~om ~e ~=~. A~mey ~ne~ OpM-
M ~ p~ t~t ~ ~ by a ~Mon- ion ~ (19~) ~ ore.ed. Op~tty.~n.2~3,
~ eom ~on; it ~ ~e common hw of No. GA~.
~ 171.009. Se~ce on Bo~d of Co~oration for No Compensation '
~se~h Refe~nces
~afi~s ~d ~ti~ ~ds B~, 36 T~. ~.
Br~, ~ T~. ~c. ~fi~ t 3.12, ~ of In~s~ne~ S~tu~.
In.st
No{es of Decisiom
1. In ~ne~l ~g ~ a Hospi~
~e T~t Co=~ Hospi~ Dh~ct ~ of vo~g ~e ~0. Op~y.~n2~l, No. J~07.
~ my ap~Mt i~ o~ m~ ~ ~e ~t ~ L~ ~v~ent ~e s<fion
~ of ~e h~ m~ o~fion 171.~, a ~ty co~cfl my ~ busM~ ~ a
nonp~fit colorlon on
("HMO") es~b~h~ by ~e Hos~ D~ but ~ se~ ~
mem~ of ~e ~ of ~ ~o ~ ~e ~r ~ not ~ ~ foH~ ~e ~c~ p~-
on ~e HMO ~ m~t comply ~ c~r 171 dins M ~ ~v~ent C~e ~efion 171.~.
of ~e ~ ~ent ~e when~er p~- ~A~y.~n2~, No. GA~.
{ 171.010. Practice of Law
(a) For p~ses of ~ chap~r, a ~ty judge or cowry co~s~oner eng~ed M the
p~va~ p~ of hw h~ a subs~ M~st M a bu~e~ en~ ff ~e o~M h~ enid
a eom apace or si~ed eom ple~ M a m~r ~g ~ ~at b~M~s entity.
. ~) A ~ judge or ~ty ~m~ioner ~at~ ~ a subs~fi~ M~st M a b~Mess
enfi~ ~ d~d by Sure.on (a) must ~mply ~ ~ ~ap~r. '
185
§ 171.010 PUBLIC
(c) A judge of a constitutional county court may not enter a court appearance or sign court.
pleadings as an attorney in any matter before: ' (1) the court over which the judge presides; or
(2) any court in this state over which the judge's court exercises appellate jarisdiction
(d) Upon compliance with this chapter, a county judge or commissioner may practice,law
the courts located in the county where the county judge or commissioner serves.
Added by Acts 2003, 78th Leg., ch. 227, § 21, eft. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1206, § 3, eft
June 20, 2003.
1 As added by Acts 20~, 78th Leg., ch. 227, § 21, eft. Sept~ 1, 2003, the text reads, "c~unty commissioner who...".
Research References
Treatises and Practice Aids
Brcoks, 36 Tex. Prsc. Series § 18.37, Conflict of
Interest-General Statute.
CHAPTER 172. TEXAS POLITICAL SUBDIVISIONS
UNIFORM GROUP BENEFITS PROGRAM
Section
172.002. Purpose: Section ·
172.096. Supervision gnd Administration of Pool.
172.003. Definitions. 172.013. Payment of Contributions and Prsmi:
172.004. Benefits Contract. ums~
172.005. Risk Pool. 172.016. Status of Affilia~d Service Contractors.
§ 172.002. Purpose
The purpose of this chapter is
(1) provide uniformity in benefits including accident, health, dental, and
disability coverage to employeeS of political subdivisions;
(2) enahie the political subdivisions to attract and retain competent and able
by providing them with accident and health benefits coverages at least equal to
commonly provided in private industry;
(3) fester, promote, and encourage employment by and service to political
a career profession for persons of high standards of competence and ability;
(4) recognize and protect the political subdivisions' investment in each
employee by promoting and preserving economic security and good health among
employees;
(5) foster and develop high standards of employer-employee relationships between
political subdivision and its employees;
(6) recognize the service to political subdivisions by elected officials and employees
affhiated service con,actors by extending to them the same accident and health
coverages as are prowded for political subdivision employees; and
(7) recog~ze the long and faithful service and dedication of employees of
subdivisions and to encourage them to remain in ser~ce of their respective
subdivisions until eligible for retirement by providing health benefits to those
Added by Acts 1989, 71st Leg., ch. 1067, § 1, eft. Sept 1, 1989. Amended by Acts 2001
491, § 1, eft. Sept 1, 2001.
§ 172.003. Definitions
In this chapter:
(1) "Affiliated service contractor" means an organization
Section 501(c), Internal Revenue Code (26 U.S.C. SectiOn 501(c)), as amended, that
governmental or quas~ governmental ser~nces on behalf of a political subdivision and
more than 25 percent of its gross revenues from grants or funding from the
subdivision.
136
EXHIBIT "B"
§ 36.01 PUBLIC ADMINISTRATION BRIBERY & COR[
Note I Title 8 Ch. 36
Dist. 1997) 959 S.W.2d 1, rehearing overruled, the donor's purpose is not to influence agency with Chapter 305
petition for discretionary review refused, action but to attract business from state employ-
As a general rule, the receipt of a plaque ees in their private capacity. Tex. Ethics Comm. solicited, accepted
could not be reasonably regarded as pecuniar~ Op. No. 66 (1992). withhold a specifi
advantage and is therefore not a benefit for A state employee who, at the direction of his discretion would
purposes of Chapter 36 of the Penal Code. employing agency, attends a seminar relevant to notwithstanding ~
Tex. Ethics Comm. Op. No. 36 0992). his job is not obtaining a benefit within meaning inferences in the ~
"Benefit" does not constitute improper of Charter 36 of the Penal Code. The employee
"bribe" if it is not offered or accepted as consid- may accept tuition, food, transportation, and agreement shall
eration for some official act on part of public lodging at such a seminar only to the extent to
servant. Tex. Ethics Corn.Op. No. 60 (1992). which the state would pay for those expenses in (b) It is no defens(
Promotional or commemorative items of min- connection with the seminar. Tex. Ethics actor sought to inflr
imal value such as caps, coffee mugs, tee shirts Comm. Op. No. 63 (1992). because he had not .x
and key rings, do not constitute improper "ben- A member of the legislature may accept a reason.
efit" if such items are not solicited and not donation from an individual of a small cassette
offered or accepted in exchange for any action tape recorder and cassette tape recordings of an (C) It is no defens
or inaction on part of public servants. Tex. Eth- individual reading the Bible because they do not offered or conferred
ics Comm. Op. No. 61 (1992). constitute an economic gain or advantage and
"Benefit," for purposes of Chapter 36 of the thus are not a "benefit" under subd. (5) of this (1) the decision
Penal Code, does not include promotional or section; however, under certain circumstances discretion has occl
commemorative items of minimal value such as the donation would have to be reported as a
caps, coffee mugs, tee shirts, and key rings if contribution in accordance with V.A.T.S. Elec- (2) the public se
such items are unsolicited and not offered or tion Code, art. 14.01(D)(2) (repealed). State
accepted in exchange for any action or inaction Ethics Advisory Commission Opinion 1984-14. (d) It is an excepl
on the part of a public servant. Tex. Ethics Waiver of a membership fee to a private club Subsection (a) that ti
Corem. Op. No. 6l (1992). is a "benefit" purposes of Chapter 36 of the Election Code, or ~
"Benefit," for purposes of Chapter 36 of the Penal Code. Generally, a candidate or office- Chapter 305, Govern
Penal Code, does not include small amounts of holder could accept an offer to use the facilities
food that a donor delivers infrequently to a of a private club for campaign or officeholder (e) An offense und
public servant at a governmental office as long purposes. Such a contribution would not be
as the food is unsolicited and is not offered or permissible, however, if the club were incorpo- Acts 1973, 63rd Leg., p
accepted in exchange for action or inaction on rated. If a candidate or officeholder accepted Leg., p. 915, ch. 342, §
the part of a public servant. Tex. Ethics Comm. the opportunity to use the facilities of a private eff. Sept. 1, 1983; Act:
Op. No. 62 (I992). club as a campaign contribution or an office- 73rd Leg., ch. 900, § 1
"Benefit" under Chapter 36 of the Penal Code holder contribution, the candidate or officehold-
does not include promotional discount coupons er could not use the facilities for personal pur- 1 V.T.C.A., Election Cod
that are delivered to state agencies for distribu- poses unrelated to his or her candidacy or to his
tion to agency employees. The lobby statute or her duties or activities of office. Tex. Ethics
does not apply to the delivery of such coupons if Corem.Op. No. 268 (1995). The 1975 a~iendment
which formerly read:
"(a) A person commits
§ 36.02. Bribery confers, or agrees to col
(a) A person commits an offense if he intentionally or knowingly offers, public servant, party offici
confers, or agrees to confer on another, or solicits, accepts, or agrees to accept "(1) with intent to
servant or party official
from another: of his official powers
(1) any benefit as consideration for the recipient's decision, opinion, rec- mance of his official dut
ommendation, vote, or other exercise of discretion as a public servant, party "(2) with intent to in
official, or voter; to vote or to vote in
(2) any benefit as consideration for the recipient's decision, vote, recom- "(b) A public servant ~
mendation, or other exercise of official discretion in a judicial or administra- mits an offense if he know
or agrees to accept any be
tire proceeding; tation or understanding t
(3) any benefit as consideration for a violation of a duty imposed by law on ence'd in a specific exerci~
ers or a specific perforr
a public servant or party official; or duties.
(4) any benefit that is a political contribution as defined by Title 15, "(c) A voter commits a~
Election Code,~ or that is an expenditure made and reported in accordance ingly accepts or agrees to
544
LIC ADMINISTRATION BRIBERY & CORRUPT INFLUENCE § 36.02
Title 8 Ch. 36
pose is not to influence agency with Chapter 305, Government Code, if the benefit was offered, conferred,
tact business from state employ- solicited, accepted, or agreed to pursuant to an express agreement to take or
ate capacity. Tex. Ethics Comm.
2). withhold a specific exercise of official discretion if such exercise of official
,yee who, at the direction of his discretion would not have been taken or withheld but for the benefit;
cy, attends a seminar relevant to notwithstanding any rule of evidence or jury instruction allowing factual
taining a benefit within meaning inferences in the absence of certain evidence, direct evidence of the express
' the Penal Code. The employee
tion, food, transportation, and agreement shall be required in any prosecution under this subdivision.
a seminar only to the extent to
would pa}' for those expenses in (b) It is no defense to prosecution under this section that a person whom the
th the seminar. Tex. Ethics actor sought to infiuence was not qualified to act in the desired way whether
53 (1992). because he had not yet assumed office or he lacked jurisdiction or for any other
f the legislature may accept a reason.
m individual of a smalI cassette
id cassette tape recordings of an (c) It is no defense to prosecution under this section that the benefit is not
ng the Bible because they do not offered or conferred or that the benefit is not solicited or accepted until after:
zonomic gain or advantage and
'benefit" under subd. (5)of this (1) the decision, opinion, recommendation, vote, or other exercise of
er, under certain circumstances discretion has occurred; or
ould have to be reported as a
accordance with V.A.T.S. Elec- (2) the public servant ceases to be a public servant.
14.01(D)(2) (repealed). State
Commission Opinion 1984-14. (d) It is an exception to the application of Subdivisions (1), (2), and (3) of
nembership fee to a private club Subsection (a) that the benefit is a political contribution as defined by Title 15,
purposes of Chapter 36 of the Election Code, or an expenditure made and reported in accordance with
;enerally, a candidate or office- Chapter 305, Government Code.
cept an offer to use the facilities
tb for campaign or officeholder (e) An offense under this section is a felony of the second degree.
h a contribution would not be
wever, if the club were incorpo- Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eft. Jan. i, 1974. Amended by Acts 1975, 64th
~didate or officeholder accepted Leg., p. 915, ch. 342, § 11, eft. Sept. 1, 1975; Acts 1983, 68th Leg., p. 3237, ch. 558, § 2,
to use the facilities of a private eft. Sept. 1, 1983; Acts 1991, 72nd Leg., ch. 304, § 4.02, eft. Jan. 1, 1992; Acts 1993,
paign contribution or an office- 73rd Leg., ch. 900, § 1.0I, elf. Sept. 1, 1994.
:tion, the candidate or officehold-
;e the facilities for personal pur 1 V.T.C.A., Election Code § 251.00i et seq.
I to his or her candidacy or to his
r activities of office. Tex. Ethics Historical and Statutory Notes
268 (1995). The 1975 amendment rewrote the section, the representation or understanding that he will
which formerly read: not vote or will vote in a particular manner.
"(a) A person commits an offense if he offers, "(d) An offense under this section is a felony
confers, or agrees to confer any benefit on a of the third degree unless committed u~l~_der
Subsection (b) of this section, in which eXl~rfit it
tally or knowingly offers, public servant, party official, or voter:
zcepts, or agrees to accept "(I) with intent to influence the public is a felony of the second degree."
servant or party official in a specific exercise The 1983 amendment, in subsec. (a)(l) delet-
of his official powers or a specific perfor- ed "pecuniary" preceding "benefit as consider-
It'S decision, opinion, rec- mance of his official duties; or ation"; inserted a new subsec. (c): and relet-
tered former subsec. (c) as (d).
as a public servant, party "(2) with intent to influence the voter not § 12 of the 1983 amendatory act provides:
to vote or to vote itl a particular manner. "(a) The change in law made by this Act
it's decision, vote, recom- '%) A public servant or party official corn- applies only to an offense committed on or after
n a judicial or administra- mits an offense if he knowingly solicits, accepts, the effective date [Sept. 1, 1983] of this Act.
or agrees to accept any benefit on the represen- For purposes of this section, an offense is corn-
ration or understanding that he will be influ- mitted before the effective date of this Act if any
' a duty imposed by law on enced in a specific exercise of his official pow- element of the offense occurs before the effec-
ers or a specific performance of his official tire date.
duties. "0o) An offense committed before the effec-
t as defined by Title 15, "(c) A voter commits an offense if he know- tire date of this Act is covered by the law in
id reported in accordance ingly accepts or agrees to accept any benefit on effect when the offense was committed, and the
545
EXHIBIT "C"
§ 39.01 PUBLIC ADMINISTRATION
Note 2
Title 8 ABUSE OF t
Ch. 39
would be a misuse of government property, the Penal Code. Tex. Ethics Comm.Op. No. 182
Tex. Ethics Corem. Op. No. 386 (I997). (1994). (2) a Cia
3. Use of state resources 4. Intent $20 or mor,
A member of the legislature may use state
resources to provide the type of legislative assis- Intent element of crime of official misconduct (3) a Cia:
tance be provides to residents of his current may be satisfied before or during misapplication $500 or mo
district to a person who lives in a geographical of state property. Margraves v. State (Ct. App.
area that will become part of the legislator's 2000) 34 S.W.3d 912, on remand 56 S.W.3d (4) a stat,
district in 1995. Tex. Ethics Comm.Op. No. 193 673. or more but
( ! 994).
A legislator's use of state resources and em- 5. Instructions (5) a feloi
is $20,000 o
ployees to keep track of the legislatlve's overall Special instructions, in prosecution of state
schedule, including personal and political ap- university official for misuse of state property (6) a felot
pointments, is not a misapplication of things of arising from use of state aircraft to fly to son's is $100,000
value belonging to the government under Penal out-of-state college graduation, did not improp-
Code § 39.01(a)(2), however, a state employee erly comment on the evidence by including only (7) a felol
should not be used as a political or personal certain travel-related provisions from appropri- $200,000 or
scheduler to make personal appointments or ations act; inclusion of provisions not related to
organize political events. Tex,Ethics Corem. Op. use of state aircraft would have unnecessarily (d) A discou
No. 172 (1993). complicated jury charge and probably would car or hotel dj:
As a general ~ule, a state employee would not have confused jury, and special instructions
be serving an agency purpose by searching for complained of did not even reference any par- government fo
other employment. An individual employee ticular evidence. Margraves v. State (App. 14 COSt involved i
who is using state resources to search for a new Dist. 200I) 56 S.W.3d 673.
job in a way that has been expressly authorized Acts 1973, 63rd
by the agency's board would not, as an individu- 6. New trial Leg., p. 3241, c]
al, be misapplying state property. Tex. Ethics Evidence that defense counsel allegedly dis § 39.01 and an
Comm. Op. No. 164 (I993). covered after trial did not warrant new trial in
In order for a violation of section 39.01 of the prosecution of former state university official
Penal Code to occur, there must be both a for using state aircraft to fly to on s out of-state
"misapplication" of state resources and the mis- college graduation; evidence that successor had The 1983 amen,
application must be made with intent to obtain once sought reimbursement for travel and had introductory lang
a benefit or with intent to harm another; use of used university system plane 28 times did not and inserted "witl
state resources for charitable fundraising in render untrtte her testimony that it was not her (2) and (3), renurr
compliance with V.T.C.A. art. 6813h would not practice to seek reimbursement for travel from (5) as (1) and (2),
be a misapplication of such resources, nor university or that she presently drove to board deleted "takes or'
would a use of state resources in connection meetings, that evidence would not likely have thing", substituted
with a charitable fundraising drive involve an caused different result, and it was not unknown serted "office or",
intent to obtain a "benefit" or an intent to to defendant at time of trial. Margraves v. with intent to tak~
"harm" another as defined by section 1.07 of State (App. 14 Dist. 2001) 56 S.W.3d 673. deliver'it to any
person is not enti
former subsec. (b),
§ 39.02. Abuse of Official Capacity as (b), added a nex
(b), in the first se
tion" for "Subst
(a) A public servant commits an offense if, with intent to obtain a benefit or (a)(4)" following"
with intent to harm or defraud another, he intentionally or knowingly: ond sentence whic
Subsection (a)(5) o
(1) violates a law relating to the public servant's office or employment; or the third degree.".
secs. (a)(l), (a)(2), (;
(2) misuses government property, services, personnel, or any other thing of "(a)(l) commits;
value belonging to the government that has come into the public servant's or employment that
custody or possession by virtue of the public servant's office or employment, exercise of his offici
(b) An offense under Subsection (a)(1) is a Class A misdemeanor. "(2) commits a
fire or employmt
(c) An offense under Subsection (a)(2) is: power:
"(3) refrains fr¢
(1) a Class C misdemeanor if the value of the use of the thing misused is imposed on him
less than $20;
inherent in the na
698 ment;"
~kDMINISTRATION ABUSE OF OFFICE § 39.02
Title 8 Ch. 39
~thics Corem. Op. No. 182 (2) a Class B misdemeanor if the value of the use of the thing misused is
$20 or more but less than $500:
(3) a Class A misdemeanor if the value of the use of the thing misused is
me of official misconduct $500 or more but less than $1,500;
or during misapplication
rgraves v. State (Cr. App. (4) a state jail felony if the value of the use of the thing misused is $1,500
. on remand 56 S.W.3d or more but less than $20,000;
(5) a felony of the third degree if the value of the use of the thing misused
is $20,000 or more but less than $100,000;
. in prosecution of state (6) a felony of the second degree if the value of the use of the thing misused
misuse of state property
~te aircraft to fly to son's .is $100,000 or more but less than $200,000; or
tduation, did not improp- (7) a felony of the first degree if the value of the use of the thing misused is
vidence by including onIy
}rovisions from appropri- $200,000 or more.
f provisions not related to
vould have unnecessarily (d) A discount or award given for travel, such as frequent flyer miles, rental
rge and probably would car or hotel discounts, or food coupons, are not things of value belonging to the
and special instructions government for purposes of this section due to the administrative difficulty and
t even reference any par-
rgraves v. State (App. 14 cost involved in recapturing the discount or award for a governmental entity.
673. Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, elf. Jan. 1, 1974. Amended by Acts 1983, 68th
Leg., p. 3241, ch. 558, § 7, elf. Sept. i, 1983. Renumbered from V.T.C.A., Penal Code
§ 39.01 and amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, elf. Sept. 1, 1994.
~se counsel allegedly dis-
I not warrant new trial in
r state university official Historical and Statutory Notes
~ to fly to son's out-of-state The 1983 amendment, in subsec. (a), in the "(b) For purposes of Subsection (a)(2) of this
idence that successor had introductory language, deleted "for himself" section, a public servant commits an act under
;ement for travel and had and inserted 'w'th 'ntent', deleted subds. (1), color of his office or employment if he acts or
n plane 28 times did not (2) and (3), renumbered former subds. (4) and purports to act in an official capacity or takes
timony that it was not her (5) as (1) and (2), respectively, and in subd. (2) advantage of such actual or purported capaci-
bursement for travel from deleted "takes or" preceding "misappIies any ry.';
presently drove to board thing", substituted "has" for "may have", in- § 12 of the 1983 amendatory act provides:
~ce would not likely have serted "office or". and deleted ", or secretes it
t, and it was not unknown with intent to take or misapply it, or pays or "(a) The change in law made by this Act
~ of trial. Margraves v. delivers it to any person knowing that such applies only to an offense committed on or after
~01)56S.W.3d673. person is not entitled to receive it"; deleted the effective date [Sept. i, 1983] of this Act.
former subsec. (b). relettered former subsec. (c) For purposes of this section, an offense is com-
as (b), added a new subsec. (c), and in subsec, mitred before the effective date of this Act if any
(b), in the first sentence substituted "Subsec- element of the offense occurs before the effec-
tion" for 'Subsect'ons', deleted "through tive date. ~'
to obtain a benefit or (a)(4)" following "(a)(l)" and deleted the sec- "(b) An offense committed before the effec-
ond sentence which read: "An offense under tive date of this Act is covered by the law in
knowingly: Subsection (a)(5) of this section is a felony of effect when the offense was committed, and the
the third degree.". Prior to amendment, sub- former law is continued in effect for this pur-
:e or employment; or secs. (a)(1), (a)(2), (a)(3), and (b) read: pose."
or any other thing of "(a)(1) commits an act relating to his office The 1993 amendment rewrote the section,
~ the public servant's or employment that constitutes an unauthorized which previously read:
fffice or employment, exercise of his official power; "Official Misconduct. (a) A public servant
"(2) commits an act under color of his of- commits an offense if, with intent to obtain a
:meanor. fice or employment that exceeds his official benefit or with intent to harm another, he inten-
tionally or knowingly:
power;
"(3) refrains from performing a duty that is "(1) violates a law relating to his office or
the thing misused is imposed on him by law or that is clearly employment; or
inherent in the nature of his office or employ- "(2) misapplies any thing of value belong-
ment;" lng to the government that has come into his
699
EXHIBIT "D"
§ 39.02
~tote is PUBLIC ADMINISTRATION ABUSE OF O
Evidence that justice of the peace failed to 16. Instructions ' Title 8 Ch. 39
account to the county for a total of $1,594 In prosecution aga nst ax assessor-coll
which he had collected from individual defen- o~ school district for m .... · ector (1) intenti
dams as fines in criminal cases, that the monies ,,,,.vp ymg tunds o ' .
were withheld for up to 14 months in jus ice of t~t, .Charge that if jury believed that ass~f~dls search, seizt~
the peace's bank account whl e he was periodi- ~allector was short - ~- c~sor-
.... s accounts but that (2) intentb
county and falsely reporting that he was turning shortage was not brought about by reason of any right, pr
cally turning over a portion of the funds to the any fraudulent intent, or if they had a reason_
able doubt thereof, he should be acquitted, was (3) intenti~
over all of the monies collected, and that justice not erroneous on ground that it shifted burden
of the peace paid the county the $1,594 only of proof to defendant, in view of special charge (b) For purp
when audit was instituted was sufficient to sup- given at defendant's request covering same mat- or employmen~
port finding that justice of the peace converted ~r. Dupuy v. S ate (Cc App. 1938) 135 Tex.
the funds to his own use and sustained his rim. 595, 21 S.W.2d I003. advantage of st
conviction for misappfication of COUnty funds. Charge which explained to jury intent re-
Kirkpatrick v. State (Ct. App. 1974) 515 S.W.2d quired under Vernon's Ann. P.C. 0925) art. 95 requests for sc
289. (C) In this se
(now, this section) prohibiting misappfication of
Evidence that State issued warrant to defen- county funds, and which instructed on the law nature, submis.~
dam to pay salaries of secretaries and investiga of circumstantial evidence fully protected rights OF enjoyment c
tots, that defendant deposited warrant in ac- of justice of the peace charged with COnverting
count bearing his name and obtained credit county funds to his own use. Kirkpatrick v. implicitly.
with it and then drew on this credit to pay State (Ct. App. 1974)515 S.W.2d 289.
obligations other than salaries of secretaries City employees who testified that defendant (d) An offens
and investigators, and to obtain cash for himself city maintenance director ordered them to puc- Acts 1973, 63rd
was sufficient to show that defendant obtained chase paint with city funds for improper puc-
benefit for himself from warrant, as required to pose were "accomplices as a matter of law," Leg., ch. 1217, t
support conviction for official misconduct, and thus, defendant was emit]ed to jury instruc- Aug. 26, 1991.
Neal v. State (Ct. App. 1984) 689 S.W.2d 420,
certiorari denied I06 S.Ct. 65, 474 U.S. 818, 88 lion on accomplice w tness estimonv in prose- ch. 900, § 1.01,
L.Ed.2d 53. cut/on for misdemeanor abuse of official capaci
Evidence that state treasury warrant was evi- crime and, although they testified that they did
dence of an indebtedness of'State to payee in ty; both employees admitted participation in
so because defendant threatened to fire them if The 1989 amer
amount named and that defendant obtained they did not, such threat was not "force or and added subsec
credit in face amount when he endorsed and threat of force" that would warrant finding that
deposited warrant in his bank was sufficient to they were coerced into participating in scheme. Section 2 of d
show that warrant was thing of value, as re- State v. Trevino (App 13 Dis 1996) rides:
quired to support conviction for official miscon- dS 930
duct. Neal v. State (Ct. App. 1984) 689 S.W.2d :..W~_27 713, re,earing overru ed, I~etition for
~-tetlonary revtew refused· - "(a) The chan
420, certiorari denied 106 S.Ct. 65, 474 U.S. Trial COUrt did not abuse its discretion by the effective dar,
applies only to ar
818, 88 L.Ed.2d 53. granting new trial on ground that defendant For purposes of
Evidence was sufficient to prove that defen- was entitled to, but did not receive, accomplice mitted before the
witness instruction, even though defendant did element ~l~ the o
dant, as county clerk, misused services in the not object or request such instruction. State v. tlve date.
value of more than $1,500 on or about the two Trevino (App. 13 Dist. 1996) 930 S.W.2d 713,
particular ~ates set out in the indictment, and rehearing overruled, petition for discretionary
thus, was sufficient to support conviction for
abuse of official capacity; defendant's twice bi fi-
· review refused. "(b) An offem
tire date of this
mg the COmpany hired to microfilm and move 17. Review effect when the
old record books for $1,800 and $2,500 for Had Court of Appeals been correct in finding former [aw is c
work her children never performed, and her defendant was improperly convicted by trial pose."
accepting the checks for those amounts, was an court of nepotism and official misconduct, cor-
admission of the value of the work done. Mega- rect remedy would have been dismissal of in-
son v. State (App, 6 Dist. 2000) 19 S.W.3d 883, dictment, not acquittal. Cain v. State (Ct. App.
petition for discretionary review refused.
1993) 855 S.W.2d 714. "Another" defir
"Intentionally"
Public duty just
§§ 39.021, 39.022. Renumbered as V.T.C.A., Penal Code §§ 39.04, 39.05 Punishment, C[
"Public servant
by Acts 1993, 73rd Leg., ch. 900, § 1.01, eft. Sept. 1, 1994 "u "
nlawful clef
§ 39.03. Official Oppression
(a) A public servant acting under color of his office or employment commits Extortion:
an offense if he:
money or
706 of office, ?
§ 39.03
iNISTRATION ABUSE OF OFFICE
Title 8 Ch. 39
(l) intentionally subjects another to mistreatment or to arrest, detention,
assessor-collector search, seizure, dispossession, assessment, or lien that he knows is unlawful;
ying funds of dis-
red that assessor- (2) intentionally denies or impedes another in the exercise or enjoyment of
or
recounts but that
,out by reason of an3' right, privilege, power, or immunity, knowing his conduct is unlawful;
~cy had a reason- (3) intentionally subjects another to sexual harassment.
be acquitted, was
it shifted burden (b) For purposes of liais section, a public servant acts under color of his office
takes
of specia[ charge
Jvering same mat- or employment if he acts or purports to act in an official capacity or
.. 1938) 135 Tex. advantage of such actual or purported capacity.
o jury intent re- (c) In this section, "sexua harassment means unwelcome sexual advances,
c. (1925) art. 95 requests for sexual favors, or other verbal or physical conduct of a sexual
misapplication of nature, submission to which is made a term or condition of a person's exercise
x~cted on the law
v protected rights or enjoyment of any right, privilege, power, or immunity, either explicitly or
:I with converting implicitly.
'. Kirkpatrick v.
:d 289. (d) An offense under this section is a Class A misdemeanor.
d that defendant
.'red them to put- Acts 1973, 63rd Leg., p. 883, ch. 399, § 1. elf. Jan. 1, 1974. Amended by Acts 1989, 71st
ar improper put- Leg., ch. 1217, § I, elf. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 16, § 19.01(34), elf.
matter of law," Aug. 26, 1991. Renumbered from V.T.C.A., Penal Code § 39.02 by Acts 1993, 73rd Leg.,
~d to jury instruc- ch. 900, § 1.01, elf. Sept. 1, 1994.
~timony in prose-
of official capaci- Historical and Statutory Notes
participation in
~ried that they did The 1989 amendment inserted subd. (a)(3). The 1991 amendment relettered subsec. (c),
as added by Acts 1973, 63rd Leg., ch. 399, § 1,
ed to fire them if and added subsec. (c). as subsec. (d).
ts not "force or
cram finding that Section 2 of the 1989 amendatory act pro- The 1993 amendment, which amended the
whole Penal Code, made no apparent ,change to
}sting in scheme, rides:
Dist. 1996) 930 "(a) The change in law made by this Act this section.
tied, petition fox- applies only to an offense committed on or after Prior Laws:
its discretion by the effective date [Sept. 1, 1989] of this Act. Rev. P.C.1879, arts. 164, 519, 520.
I that defendant For purposes of this section, an offense is corn- Rev. P.C.1895, arts. 170, 624, 625.
:.,e~ve. accomplice mined before the effective date of this Act if any Rev. P.C.1911, arts. 270, 1045, 1046, 1610,
. defendant did element of the offense occurs before the effec- 1617.
Vernon's Ann. P.C. (1925) arts. 261, 349, 353,
motion. Statev. tivedate. 1157, 1158, 1175, 1176.
}30 S.W.2d 713,
for discretionary "(b) An offense committed before the effec-
tive date of this Act is covered by the law in Former Sections:
effect when the offense was committed, and the A former § 39.03 was renumbered as
former law is continued in effect for this pur- V.T.C.A., Penal Code § 39.06 by Acts 1993, 73rd
Leg., ch. 900, § 1.01, elf. Sept. 1, 1994.
orrect in finding pose."
,nvicted by trial
misconduct, cor- Cross References
dismissal of in-
~. State (Ct. App. "Another" defined, see V.T.C.A., Penal Code § 1.07.
"Intentionally" defined, see V.T.C.A., Penal Code § 6.03.
~ublic duty ~ustification, see V.T,C.A., Penal Code § 9.21.
"Public servant" defined, see V.T.C.A., Penal Code § 1.07.
39.04, ~9.05 Punishment, Class A misdemeanor, see V.T.C.A., Penal Code § 12.21.
"Unlawful" defined, see V.T.C.A,, Penal Code § 1.07.
;ept. 1, 1994
American Law Reports
Extortion: What constitutes the taking of
tent commits money or other thing of value under color
of office, 70 ALR3d 1153.
707
EXHIBIT "E"
MINISTRATION ABUSE OF OFFICE§ 39.06
Title 8 Ch. 39
Historical and Statutory Notes
~ Section 3 of the 1983 Act provides: "(b) The amendments made by this article to
Sections 38.01 and 39.05, Penal Code, apply
~rooks, 35 Texas Prac- "The change n the law made by this Act
applies only to a report required to be fi ed after only to offenses committed on or after the effec-
the death of a prisoner who dies on or after the rive date [Sept. 1, 1995] of this article. An
s civil rights, corn- offense committed before the effective date of
and indictments, see effective date [Sept. 1, 1983] of this Act."
'exas Practice § 20.04 The 1993 amendment substituted "Article this article is covered by the law in effect when
49.18" ['or "Article 49.08(b)"; and following the offense was committed, and the former law
"Code of Criminal Procedure", deleled "1965." is continued in effect for that purpose.
The 1995 amendment added subset. (b); and "(c) For purposes of this section, an offense is
relettered former subsec. (b) as subsec. (c). committed before the effective date of this arti-
Section 1.114(b) and (c) of Acts 1995, 74th cie if any element of the o[`[`ense occurs before
overcaled, petition for Leg., ch. 321 provides: that date."
ted. Cross References
e Punishment, Class B misdemeanor, see V.T.C.A., Penal Code § 12.22.
· sufficient to support
ho was a peace officer, Library References
ce, in prosecution for Prisons~10. Jail, prisoner death reports, see Brooks, 35
ivil rights; inmate testi- Westlaw Topic No. 310. Texas Practice § 20.67.
:d him in the face, and C.J.S. Prisons and Rights of Prisoners §§ 106,
~t she heard defendant 124 to 126, 128 to 129. Texts and Treatises
~e incident. Mizell v, Failure to report death of prisoner, com-
70 S.W.3d 156, rehear- plaints, informations and indictments, see 58 Texas Jut 3d, Penal lnst § 46.
,r discretionary review McCormick et al., 7 Texas Practice § 20.05
(10th ed.),
§ 39.06. Misuse of official Information
(a) A public servant commits an offense if, in reliance on information to
'ed to conduct an which he has access by virtue of his office or employment and that has not been
· iminal Procedure, made public, he:
~port as required, (1) acquires or aids another to acquire a pecuniary interest in any proper-
~d in the investiga- ty, transaction, or enterprise that may be affected by the information;
(2) speculates or aids another to speculate on the basis of the information;
,y Section 501.055, or
(3) as a public servant, including as a principal of a school, coerces
m fails to give the another into suppressing or failing to report that information to a law
enforcement agency.
cson: (b) A public servant commits an offense if with intent to obtain a benefit or
with intent to harm or defraud another, he discloses or uses information for a
or nongovernmental purpose that:
..rson or discovered (1) he has access to by means of his office or employment; and
(2) has not been made public.
'. (c) A person commits an offense if, with intent to obtain a benefit or with
1983. Renumbered intent to harm or defraud another, he solicits or receives from a public servant
73rd Leg., ch. 900, information that:
21, § 1.104, elf. Sept. (1) the public servant has access to by means of his office or employment;
and
715
§ 39.06 PUBLIC ADMINISTRATION ABUSE OF Ol~
Title 8 Ch. 39
(2) has not been made public.
"Another" defined,
(d) In this section, "information that has not been made public" means any "Public servant" de
information to which the public does not generally have access, and that is Punishment,
prohibited from disclosure under Chapter 552, Government Code. Glass C misderr
Third degree fei
(e) Except as provided by Subsection (f), an offense under this section is a
felony of the third degree.
(f) An offense under Subsection (a)(3) is a Class C misdemeanor, officers and Pub],
Westla,.v Topic N~
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eft. Jan. i, 1974. Amended by Acts 1983, C.J.S. Officers aR
to 259.
68th Leg., p. 3243, ch. 558, § 9, eft. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 30, § 1, eft. Misuse of official
Sept. 1, 1987; Acts 1987, 70th Leg., 2nd C.S., ch. 43, § 3, eft. Oct. 20, 1987; Acts 1989, cuniary interes
71st Leg., ch. 927, § 1, eft. Aug. 28, 1989. Renumbered from V.T.C.A., Penal Code
§ 39.03 and amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eft. Sept. 1, 1994.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(90), eft. Sept. 1, 1995; Acts 1995, 74th
Leg., ch. 76, § 14.52, eft. Sept. 1, 1995.
Historical and Statutory Notes S
The 1983 amendment in subsec. (b) substitut- access in his official capacity and which has not
ed "felony of the third degree" for "Class A been made public, he:
misdemeanor".
"(i) acquires or aids another to acquire a
Section 12 of the 1983 amendatory act pro- pecuniary interest in any property, transac-
vides: tion, or enterprise that may be affected by the
"(a) The change in law made by this Act information; or
applies only to an offense committed on or after "(2) speculates or aids another to speculate
the effective date [Sept. 1, 1983] of this Act. on the basis of the information.
For purposes of this section, an offense is rom- "(b) A public servant who is a judge, justice,
mltted before the effective date of this Act if any intern, participant in a court-approved history
element of the offense occurs before the effec-
tive date. project, or employee of an appellate court com-
mits an offense if he intentionally or knowingly
"(b) An offense committed before the effec- reveals the result or content of a proposed or
tive date of this Act is covered by the law in actual appellate judicial decision or opinion to
effect when the offense was committed, and the any person other than a judge, justice, or em-
former law is continued in effect for this pur- ployee, intern, or participant in a court-ap-
pose." proved history project under suitable supervi- ~
sion of the same appel]ate court prior to its
Acts 1987, 70th Leg., ch. 30 inserted subsecs, re]ease as a public record or announcement to
(b) and (c) and relettered former subsec. (b) as all parties of interest on an equal basis.
subsec. (d).
"(c) A person commits an offense if, with
Acts 1987, 70th Leg., 2nd C.S., ch. 43, in intent to obtain a benefit or with intent toharm
subsec. (b), inserted reference to judges, jus- another, he intentionally or knowingly solicits
tices, or employees of an appellate court; and or receives from a public servant the result ot
inserted reference to persons other than a content of a proposed or actual appellate judi-
judge, justice, or employee of an appellate cial decision or opinion prior to the rendition of
court, judgment, when the person knows that the con-
The 1989 amendment in subsec. (b) inserted tent or result of such order or opinion has not
"intern, participant in a court-approved history been disclosed to the opposing party or parties.
project," following "justice" and inserted ", in- "(d) An offense under this section is a felony
tern, or participant in a court-approved history of the third degree."
project under suitable supervision" following
"employee". The 1995 amendments, in subsec. (d), updat-
ed a statutory reference.
The 1993 amendment rewrote the section,
which formerly read: Prior Laws:
"(a) A public servant commits an offense if, Rev. P.C. 1911, art. 167.
in reliance on information to which he has Vernon's Ann. P.C. (1925)art. 144.
716
EXHIBIT "F"
TexasEthlcsComndsslon P.O. BoxI2070 Au~n, Texas 78711-2070 (512)463-5800 1-800-325-8~
CODE OF FAIR CAMPAIGN CFCP
PRACTICES cow.
Pursuant to chapter 258 of the Election Code, every candidate and OFFICE USE ONLY
political committee is encouraged to subscribe to the Code of Fair o,,a
Campaign Practices. The Code may be filed with the proper filing
authority upon submission of a campaign treasurer appointment
form. Candidates or political committees that already have a
current campaign treasurer appointment on file as of September 1,
1997, may subscribe to the Code at any time.
HO/PM
Subscription to the Code of Fair Campaign Practices is voluntary. Date Processed
Date Imaged
l__J ACCOUNT NUMBER: 21 TYPE OF FILER:
(Ethics Commission Filers) [] CANDIDATE [] POLITICAL COMMITTEE
~_J NAME OF CANDIDATE TITLE(Dr.,Mt, Ms.,etc.) FIRST MI
4._~ TELEPHONE NUMBER OF CANDIDATE AR~CODE PHONE NUMBER EXTENSION
( )
5.~.J ADDRESS OF CANDIDATE ~DRESS IPOBOX; APT/SUITES; CITY; STATE; ZIP CODE
(Please ~ ~' print)
6.~ OFFICE SOUGHT BY CANDIDATE
_.J NAME OF COMMITTEE
81 NAME OF CAMPAIGN TREASURER TFFLE (Dr., Mr., MS., elc.) FIRST
GO TO PAGE 2
Texas Ethics Commission p.O. Box 12070 Austin, Texas 78711-2070 (512)463-.5800
CODE OF FAIR CAdYIPA/GN PI CTICES
There are basic principles of decency, honesty, and fair play that every candidate and political
committee in this state has a moral obligation to observe and uphold, in order that, afLer vigorously contested
but fairly conducted campaigns, our citizens may exercise their constitutional rights to a flee and untrammeled
choice and the will of the people may be fnlly and clearly expressed on the issues.
THEREFORE:
(1) I will conduct the campaign openly and publicly and limit at~acks on my
opponent to legitimate challenges to my opponent's record and stated positions on issues.
(2) I will not use or permit the use of character defamation, whispering
campaigns, libel, slander, or scurrilous attacks on any candidate or the candidate's personal or
family life.
(3) I will not use or permit any appeal to negative prejudice based on race, sex,
religion, or national origin.
(4) I will not use campaign material of any so~t that misrepresents, distorts, or
otherwise falsifies the facts, nor will I use malicious or unfounded accusations that aim at
creating or exploiting doubts, without justification, as to the personal integrity or patriotism of
my opponent.
(5) I will not undertake or condone any dishonest or unethical practice that tends
to corrupt or undermine our system offi-ee elections or that hampers or prevents the full and free
expression of the will of the voters, including any activity aimed at intimidating voters or
discouraging them fi`om voting.
(6) I will defend and uphold the right of every qualified voter to full and equal
participation in the electoral process, and will not engage in any activity aimed at intimidating
voters or discouraging them from voting.
(7) I will immediately and publicly repudiate methods and tactics that may come
from others that I have pledged not to use or condone. I shall take firm action against any
subordinate who violates any provision of this code or the laws governing elections.
I, the undersigned, candidate for election to public office in the State of Texas or campaign treasurer of
a political committee, hereby voluntarily endorse, subscribe to, and solemnly pledge myself to conduct the
campaign in accordance with the above principles and practices.
Date Signature