DBD(LEGAL) - EMPLOYMENT REQUIREMENTS AND RESTRICTIONS: CONFLICT OF INTEREST

Prohibited Activities by Public Servants—State Law

"Public servant" means 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)

Bribery

A person commits an offense if the person intentionally or knowingly offers, confers, agrees to confer on another, or solicits, accepts, or agrees to accept from another any benefit:

  1. As consideration for the recipient's decision, opinion, recommendation, vote, or other exercise of discretion as a public servant;
  2. As consideration for a violation of a duty imposed by law on a public servant; or
  3. That is a political contribution as defined by Election Code Title 15 or an expenditure made and reported in accordance with Government Code Chapter 305 (regarding registration of lobbyists), 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

Illegal Gifts

A public servant who exercises discretion in connection with contracts, purchases, payments, claims, or other pecuniary transactions of government commits an offense if the public servant solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any contract, purchase, payment, claim or transaction involving the exercise of the public servant's discretion. Penal Code 36.08(d), 36.10

A public servant who receives an unsolicited benefit that the public servant is prohibited from accepting under the provisions above 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)

Exceptions

"Illegal gifts" does not apply to:

  1. 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 the public servant gives legitimate consideration in a capacity other than as a public servant;
  2. 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;
  3. A benefit to a public servant required to file a statement under Government Code Chapter 572 or a report under Election Code Title 15 that is derived from a function in honor or appreciation of the recipient if:
    1. The benefit and the source of any benefit in excess of $50 is reported in the statement; and
    2. 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;
  4. A political contribution as defined by Election Code Title 15;
  5. An item with a value of less than $50, excluding cash or a negotiable instrument as described by Business and Commerce Code 3.104;
  6. An item issued by a governmental entity that allows the use of property or facilities owned, leased, or operated by the governmental entity; or
  7. 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 an offense if the public servant solicits, accepts, or agrees to accept an honorarium in consideration for services that the public servant would not have been requested to provide but for the person's official position or duties. This provision does not prohibit a public servant 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 Official Capacity

A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, the public servant intentionally or knowingly violates a law relating to the public servant's office or employment, or misuses government property, services, personnel, or any other thing of value, that has come into the public servant's custody or possession by virtue of the public servant's office or employment. Penal Code 39.02(a)

"Law relating to a 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:

  1. An agreement under which the public servant holds the property;
  2. A contract of employment or oath of office of a public servant;
  3. 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
  4. A limited purpose for which the property is delivered or received.

Penal Code 39.01(2)

Misuse of Official Information

A public servant commits an offense if, in reliance on information to which the public servant has access by virtue of the person's office or employment and that has not been made public, the person:

  1. Acquires or aids another to acquire a pecuniary interest in any property, transaction, or enterprise that may be affected by the information;
  2. Speculates or aids another to speculate on the basis of the information; or
  3. As a public servant, including as a school administrator, coerces another into suppressing or failing to report that information to a law enforcement agency.

A public servant commits an offense if with intent to obtain a benefit or with intent to harm or defraud another, the public servant discloses or uses information for a nongovernmental purpose that:

  1. The person has access to by means of the person's office or employment; and
  2. Has not been made public.

"Information that has not been made public" means any information to which the public does not generally have access, and that is prohibited from disclosure under Government Code Chapter 552 (the Public Information Act).

Penal Code 39.06(a), (b), (d)

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.

Education Service Center, Region 2

DBD(LEGAL)-ESCA

UPDATE 24

DATE ISSUED: 5/20/2019