DBD(LEGAL) - EMPLOYMENT REQUIREMENTS AND RESTRICTIONS: CONFLICT OF INTEREST
Restrictions on Public Servants—Penal Code
"Public servant," for purposes of the following Penal Code provisions, includes a person elected, selected, appointed, employed, or otherwise designated as an officer, employee, or agent of government, even if the person has not yet qualified for office or assumed his or her duties. Penal Code 1.07(a)(41)(A)
A public servant shall not intentionally or knowingly offer, confer, agree to confer on another, solicit, accept, or agree to accept a benefit:
As consideration for the public servant's decision, opinion, recommendation, vote, or other exercise of discretion as a public servant.
As consideration for a violation of a duty imposed on the public servant by law.
That is a political contribution as defined by Title 15 of the Election Code or an expenditure made and reported as a lobbying expense in accordance with Government Code, Chapter 305, if the benefit was offered, conferred, solicited, accepted, or agreed to pursuant to an express agreement to take or withhold a specific exercise of official discretion, if such exercise of official discretion would not have been taken or withheld but for the benefit.
"Benefit" means anything reasonably regarded as pecuniary gain or pecuniary advantage, including benefit to any other person in whose welfare the beneficiary has a direct and substantial interest.
Penal Code 36.01(3), 36.02
A public servant who exercises discretion in connection with contracts, purchases, payments, claims, or other pecuniary transactions shall not solicit, accept, or agree to accept any benefit from a person the public servant knows is interested in or likely to become interested in any such transactions of an ESC. [See BBFB(LEGAL)] Penal Code 36.08(d), 36.10
A public servant who receives an unsolicited benefit that the public servant is prohibited from accepting under this section may donate the benefit to a governmental entity that has the authority to accept the gift or may donate the benefit to a recognized tax-exempt charitable organization formed for educational, religious, or scientific purposes. Penal Code 36.08(i)
"Illegal gifts to public servants" does not apply to:
A fee prescribed by law to be received by a public servant or any other benefit to which the public servant is lawfully entitled or for which he or she gives legitimate consideration in a capacity other than as a public servant;
A gift or other benefit conferred on account of kinship or a personal, professional, or business relationship independent of the official status of the recipient;
A benefit to a public servant required to file a statement under Chapter 572, Government Code, or a report under Title 15, Election Code, that is derived from a function in honor or appreciation of the recipient if:
The benefit and the source of any benefit in excess of $50 is reported in the statement; and
The benefit is used solely to defray the expenses that accrue in the performance of duties or activities in connection with the office which are nonreimbursable by the state or political subdivision;
A political contribution as defined by Title 15, Election Code;
An item with a value of less than $50, excluding cash or a negotiable instrument as described by Business and Commerce Code 3.104;
An item issued by a governmental entity that allows the use of property or facilities owned, leased, or operated by the governmental entity; or
Food, lodging, transportation, or entertainment accepted as a guest and, if the donee is required by law to report those items, reported by the donee in accordance with that law.
Penal Code 36.10
Honoraria and Expenses
A public servant commits a Class A misdemeanor offense if the public servant solicits, accepts, or agrees to accept an honorarium in consideration for services that the public servant would not have been requested to provide but for the public servant's official position or duties. However, a public servant is not prohibited from accepting transportation and lodging expenses or meals in connection with a conference or similar event in which the public servant renders services, such as addressing an audience or engaging in a seminar, to the extent those services are more than merely perfunctory. Penal Code 36.07
[For restrictions regarding LOBBYING, see AAA(LEGAL).]
Abuse of Public Employment
A public servant shall not, with intent to obtain a benefit or with intent to harm or defraud another, intentionally or knowingly violate a law relating to the public servant's office or employment, or misuse ESC property, services, personnel, or any other thing of value, that has come into his or her custody or possession by virtue of his or her office or employment. Penal Code 39.02(a)
"Law relating to the public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly imposes a duty on the public servant or governs the conduct of the public servant. Penal Code 39.01(1)
"Misuse" means to deal with property contrary to:
An agreement under which the public servant holds the property;
A contract of employment or oath of office of a public servant;
A law, including provisions of the General Appropriations Act specifically relating to government property, that prescribes the manner of custody or disposition of the property; or
A limited purpose for which the property is delivered or received.
Penal Code 39.01(2)
Holding Civil Office
No person shall hold or exercise at the same time more than one civil office of emolument, except for offices listed in the constitutional provision, unless otherwise specifically provided. Tex. Const., Art. XVI, Sec. 40(a)
A position or membership in the Texas military forces is not considered to be a civil office of emolument. Gov't Code 437.203
Note: See also CBB for requirements when federal funds are involved.