Can a Texas legislator be paid by a city or county to represent it before a state agency?

Plain-English summary

The chair of the Texas House Committee on General Investigating & Ethics asked the AG three related questions about whether and how a state legislator may be paid by a city, county, or other unit of local government to represent it, including before a state agency. The questions touched on the lobby-registration statute, the legislative ethics code, and the constitution.

On the first question, the AG explained that chapter 305 of the Government Code regulates lobbying, generally by requiring people who communicate with legislative or executive branch members to register, but it excludes legislators from one of the registration triggers and does not address communications with local government. The provision that more directly limits legislators is section 572.052, which says a member of the Legislature may not, for compensation, represent "another person" before a state agency, with narrow exceptions. The catch is the definition of "person" in chapter 572: it means only an individual or a business entity. The Legislature often defines "person" elsewhere to include governments, but it did not do so here, and courts presume that words left out were left out on purpose. So a unit of local government is not a "person" under section 572.052, and that statute does not stop a legislator from being paid to represent a city or county before a state agency. No other statute bars a legislator from representing clients before local governments either. The AG cautioned, though, that the chapter 572 standards of conduct, including the policy against interests in substantial conflict with official duties and the section 572.051 limits on outside employment, can still restrict such representation depending on the facts.

On the second question, the AG turned to Article XVI, section 40(d), which provides that no member of the Legislature may hold another office or position of profit under the State. Prior opinions hold that an employee of a political subdivision holds a position of profit under the State. So section 40(d) would preclude a legislator from providing services as an employee of a unit of local government. It would not, however, preclude a legislator from providing representation as an independent contractor.

On the third question, about a unit of local government paying a legislator in connection with an administrative action the legislator did not lobby for or cause, the AG flagged several limits. Compensation for lobbying activities cannot be made contingent on the outcome of administrative actions. A payment, or agreement to pay, with no expectation that the legislator would provide any services would likely be an unconstitutional gratuity under Article III, section 52(a), and would raise questions about the payment's true purpose under the constitutional bar on a legislator receiving anything of value for official influence (Article XVI, section 41) and the Penal Code's bribery provision. A legislator also may not accept a benefit unless giving legitimate consideration in a capacity other than as a public servant. Whether a particular payment is bona fide consideration for actual representation, the AG concluded, depends on the particular facts.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Legislators weighing local-government work: The AG concluded that no statute specifically bars a legislator from being paid to represent a unit of local government before a state agency or another local government, because a local government is not a "person" under section 572.052, but that the chapter 572 standards of conduct may still limit it depending on the facts.

Cities, counties, and special districts hiring a legislator: The opinion explained that article XVI, section 40(d) bars paying a legislator as the entity's employee, while paying a legislator as an independent contractor is not barred by that provision.

Anyone structuring a payment tied to an administrative action: The AG noted that lobbying pay cannot be contingent on an action's outcome, that a payment with no expectation of services would likely be an unconstitutional gratuity and could raise bribery concerns, and that whether a payment is bona fide consideration depends on the facts.

Common questions

Can a Texas legislator be paid to represent a city or county before a state agency?
At the time of this opinion, yes, as far as a specific statutory bar goes. The AG explained that section 572.052's ban on representing "another person" for pay does not apply, because a unit of local government is not a "person" in chapter 572.

Can a legislator be an employee of a city or county?
No. The AG concluded that article XVI, section 40(d) precludes a legislator from providing services as an employee of a unit of local government, because that is a position of profit under the State.

Can a legislator work for local government as an independent contractor?
Yes, as to section 40(d). The AG explained that the constitutional prohibition does not preclude a legislator from providing representation as an independent contractor.

Can a local government pay a legislator contingent on a result, or for doing nothing?
The AG explained that lobbying compensation cannot be contingent on the outcome of an administrative action, and that a payment with no expectation of services would likely be an unconstitutional gratuity and raise bribery concerns.

Does the chapter 572 ethics code still matter even if no specific statute bars the work?
Yes. The AG cautioned that the standards of conduct in chapter 572, including section 572.051's limits on outside employment, can restrict a legislator's representation depending on the facts.

Background and statutory framework

Chapter 305 of the Government Code regulates lobbying and registration (Tex. Gov't Code §§ 305.001, .003(a); § 305.002(4); § 305.002(1)), excludes legislators from one registration trigger (§ 305.003(b-1)), and bars contingent lobbying compensation (§ 305.022(a), (b)). Chapter 572 sets standards of conduct for state officers including legislators (Tex. Gov't Code §§ 572.001, .002(4)(a); §§ 572.001-.069). Section 572.052(a) bars a legislator from representing "another person" before a state agency for compensation, but "person" means only an individual or business entity (§ 572.002(7), (2)), so a unit of local government is not a person (Tex. Ethics Comm'n Op. Nos. 213 (1994), 220 (1994)). Courts presume omitted words were purposefully omitted (In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)) and take the Legislature at its word (Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013)). No statute bars representing clients before local governments (Tex. Att'y Gen. Op. No. GA-0087 (2003)), though the chapter 572 conduct standards may apply (Tex. Gov't Code § 572.001; § 572.002(4), (12); § 572.051(a)).

Article XVI, section 40(d) bars a legislator from holding a position of profit under the State, and an employee of a political subdivision holds such a position (Tex. Const. art. XVI, § 40(d); Tex. Att'y Gen. Op. Nos. GA-0386 (2005), JC-0430 (2001)), so a legislator may not be an employee of a unit of local government, though an independent contractor is not barred. The AG also identified the gratuity and bribery limits: the unconstitutional-gratuity bar and its public-purpose test (Tex. Const. art. III, § 52(a); Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002)), the constitutional bar on a legislator receiving value for official influence (Tex. Const. art. XVI, § 41), the bribery statute (Tex. Penal Code § 36.02(a)(1)), the impaired-judgment limit (Tex. Gov't Code § 572.051(3)), and the rule that a legislator may accept a benefit only by giving legitimate consideration in a non-public-servant capacity (Tex. Penal Code §§ 36.08(f), .10(a)(1); § 1.07(a)(6), (38)). Whether a payment is bona fide consideration depends on the facts.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40(d); art. XVI, § 41; art. III, § 52(a)
• Tex. Gov't Code §§ 305.001, .003(a); § 305.002(1); § 305.002(4); § 305.003(b-1); § 305.022(a), (b); §§ 572.001, .002(4)(a); §§ 572.001-.069; § 572.002(2); § 572.002(7); § 572.002(4), (12); § 572.051(a); § 572.051(3); § 572.052(a); § 311.005(2); § 2001.003(5)
• Tex. Bus. & Com. Code § 1.201(b)(27)
• Tex. Penal Code § 36.02(a)(1); §§ 36.08(f), .10(a)(1); § 1.07(a)(6), (38)

Cases and Attorney General opinions:

• In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)
• Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013)
• Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002)
• Tex. Att'y Gen. Op. Nos. GA-0386 (2005), JC-0430 (2001), GA-0087 (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0226
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0226.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 7, 2019

The Honorable Sarah Davis Opinion No. KP-0226
Chair, Committee on General Investigating
& Ethics Re: Whether a legislator may receive
Texas House of Representatives payment from a unit of local government for
Post Office Box 2910 lobbying activities (RQ-0228-KP)
Austin, Texas 78768-2910

Dear Representative Davis:

     You ask three questions about a legislator's authority to represent a unit of local

government before a state agency or another unit of local government. [1] You first ask whether and
when a legislator may "receive payment from a unit of local government for ... lobbying, as that
term is described in Chapter 305, Government Code, either a state agency or another unit of local
government." See Request Letter at 1. While chapter 305 does not define the term lobbying, it
regulates communications to "persuade members of the legislative or executive branch to take
specific action," primarily by requiring a person who communicates with legislative or executive
branch members in specified circumstance to register as a lobbyist. TEX. GOV'T CODE §§ 305.001,
.003(a). A "[m]ember of the executive branch" includes officers and employees of "any state
agency, department, or office in the executive branch of state government." Id. § 305.002(4).
"'Administrative action' means rulemaking, licensing, or any other matter that may be the subject
of action by a state agency or executive branch office." Id. § 305.002(1). A person must register
as a lobbyist if the individual (1) expends more than a threshold amount to communicate with a
member "of the legislative or executive branch to influence legislation" or

            (2) receives, or is entitled to receive under an agreement under
            which the person is retained or employed, compensation or
            reimbursement, [above a specified amount] from another person to
            communicate directly with a member of the legislative or executive
            branch to influence legislation or administrative action.

Id. § 305.003(a). Legislators are excluded from the registration requirement of subsection
305.003(a)(2). Id. § 305.003(b-1). And chapter 305 does not address communications with
officers or employees of local government. Nevertheless, for purposes of your question, we
address a legislator's authority to receive payment from a unit of local government for directly
communicating with legislative and executive officers or employees of a state agency or a unit of
local government to influence legislation or administrative action. See Request Letter at 1.

       Relevant to your questions, chapter 572 of the Government Code establishes standards of

conduct and conflict-of-interest requirements for state officers and employees, including
legislators. See TEX. GOV'T CODE §§ 572.001, .002(4)(a); see generally id. §§ 572.001-.069
(chapter 572). Section 572.052 governs a legislator's representation before a state agency, stating
that "[a] member of the legislature may not, for compensation, represent another person before a
state agency in the executive branch of state government," with exceptions only for certain
criminal and ministerial matters. Id. § 572.052(a). But "person," as that word appears in chapter
572, means only "an individual or a business entity." Id. § 572.002(7) (stating that "[i]n this
chapter ... '[p]erson' means an individual or a business entity"). An "individual" in chapter 572
is a natural person. See Tex. Ethics Comm'n Op. No. 213 (1994) at 2. A "business entity" is "any
entity recognized by law through which business for profit is conducted .... " TEX. GOV'T CODE
§ 572.002(2). In different contexts, the Legislature commonly defines "person" to include units
of local government or comparable terms. [2] But chapter 572's definition of "person" omits units
of local government. Id. § 572.002(7). When construing a statute, courts presume "that words not
included were purposefully omitted." In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). Like the
courts, we "must take the Legislature at its word [and] respect its policy choices." Christus Health
Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013). Therefore, because a unit of local
government is not a person under section 572.052, that statute does not prohibit a legislator from
receiving compensation to represent a unit of local government before a state agency. See Tex.
Ethics Comm'n Op. No. 220 (1994) (stating that because a nonprofit organization is not an
individual or business entity, it is not a "person" for purposes of chapter 572). No other statute
addresses a legislator's representation of a unit of local government before a state agency. Also,
no statute "prohibits a legislator from representing clients before governmental units other than
state agencies." Tex. Att'y Gen. Op. No. GA-0087 (2003) at 3; see also Tex. Ethics Comm'n Op.
No. 178 (1993) (determining that generally a legislator is not prohibited from representing a client
before a metropolitan transit authority). Thus, no statute specifically precludes a legislator from
accepting compensation to represent a unit of local government before a state agency or another
unit of local government.

    However, other statutory duties may limit a legislator's authority to represent a unit of local

government in particular circumstances. Section 572.001 of the Government Code declares the
state's policy that

           a state officer or state employee may not have a direct or indirect
           interest, including financial and other interests, or engage in a
           business transaction or professional activity, or incur any obligation
           of any nature that is in substantial conflict with the proper discharge
           of the officer's or employee's duties in the public interest.

TEX. GOV'T CODE § 572.001; see also id. § 572.002(4), (12) (including legislators in definition of
state officer). Section 572.051 imposes other limitations on representation or employment
applicable to legislators:

           A state officer or employee should not:

           (1) accept or solicit any gift, favor, or service that might reasonably
           tend to influence the officer or employee in the discharge of official
           duties or that the officer or employee knows or should know is being
           offered with the intent to influence the officer's or employee's
           official conduct;

           (2) accept other employment or engage in a business or professional
           activity that the officer or employee might reasonably expect would
           require or induce the officer or employee to disclose confidential
           information acquired by reason of the official position;

           (3) accept other employment or compensation that could reasonably
           be expected to impair the officer's or employee's independence of
           judgment in the performance of the officer's or employee's official
           duties;

           ... ; or

           (5) intentionally or knowingly solicit, accept, or agree to accept any
           benefit for having exercised the officer's or employee's official
           powers or performed the officer's or employee's official duties in
           favor of another.

Id. § 572.051(a). Whether chapter 572 limits a legislator's authority to represent a unit of local
government depends on the facts in specific circumstances. See Tex. Att'y Gen. Op. No. GA-0087
(2003) at 4.

    You next ask whether a unit of local government may pay a legislator "as an employee or

independent contractor for attempting to influence the state agency's decision-making process."
Request Letter at 1-2. Your question implicates article XVI, section 40(d), which provides "[n]o
member of the Legislature of this State may hold any other office or position of profit under this
State." TEX. CONST. art. XVI, § 40(d). Opinions of this office have determined that, for
constitutional purposes, "an employee of a political subdivision holds a 'position of profit under
this State.'" See Tex. Att'y Gen. Op. No. GA-0386 (2005) at 3; see also Tex. Att'y Gen. Op. No.
JC-0430 (2001) at 2 (concerning an assistant county attorney); Tex. Att'y Gen. LO-90-055, at 2
(concerning a municipal firefighter). Thus, article XVI, section 40(d) would preclude a legislator
from providing services as an employee of a unit of local government. That constitutional
prohibition does not preclude a legislator from providing representation as an independent
contractor. See Tex. Att'y Gen. Op. No. GA-0386 (2005) at 4.

     Finally, you ask whether a unit of local government may pay a legislator in connection

with an administrative action that the legislator neither lobbied for nor otherwise caused to occur.
Request Letter at 2. Compensation for lobbying activities must not be made contingent on the
outcome of administrative actions. TEX. GOV'T CODE § 305.022(a), (b). Also, a payment or
agreement to pay a legislator with no expectation that the legislator would provide any services
would likely constitute a gratuity, prohibited under article III, section 52(a) of the Texas
constitution. TEX. CONST. art. III, § 52(a); Tex. Mun. League Intergov'tl Risk Pool v. Tex. Workers'
Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002) (stating that the constitution prohibits gratuitous
payments to individuals, associations, and corporations). [3] Further, payment with no expectation of
a quid pro quo would raise concerns about the true purpose of the payment. See TEX. CONST. art.
XVI, § 41 (prohibiting a legislator from receiving "money [or other] thing of value or employment
... for his vote or official influence, or for withholding the same"); TEX. PENAL CODE § 36.02(a)(1)
(prohibiting the offer or acceptance of a benefit as consideration for the exercise of discretion as a
public servant); TEX. GOV'T CODE § 572.051(3) (stating that a state officer should not "accept
other employment or compensation that could reasonably be expected to impair the officer's or
employee's independence of judgment in the performance of the officer's or employee's official
duties"). Moreover, a legislator may not solicit, accept, or agree "to accept any benefit from any
person," unless the legislator "gives legitimate consideration in a capacity other than as a public
servant." TEX. PENAL CODE §§ 36.08(f), .10(a)(1); see also id. § 1.07(a)(6), (38) (defining
"person" for purposes of the Penal Code as including "a government or governmental
subdivision"); Tex. Ethics Comm'n Op. No. 123 (1993) (explaining that a legislator may accept a
benefit by giving consideration in a capacity other than as a legislator). Whether a payment to a
legislator constitutes bona fide consideration for providing representation before a state agency or
a unit of local government will depend on the particular facts.

                                  SUMMARY

                  No statute specifically precludes a legislator from accepting
           compensation to represent a unit of local government before a state
           agency or another unit of local government. Article XVI, section
           40(d) of the Texas constitution precludes a legislator from providing
           services as an employee of a unit of local government.

                 A legislator may not solicit, accept, or agree to accept any
          benefit from any person unless the legislator gives legitimate
          consideration in a capacity other than as a public servant.

                  Whether a payment to a legislator constitutes bona fide
          consideration for providing representation before a state agency or
          a unit of local government will depend on the particular facts.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Sarah Davis, Chair, House Comm. on Gen. Investigating & Ethics, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 30, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] See, e.g., TEX. BUS. & COM. CODE § 1.201(b)(27) (Uniform Commercial Code) ("'Person' means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, any other legal or commercial entity, or a particular series of a for-profit entity."); TEX. GOV'T CODE § 311.005(2) (Code Construction Act) (stating that unless a statute or context provides otherwise, "'[p]erson' includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity"); id. § 2001.003(5) (Administrative Procedure Act) ("'Person' means an individual, partnership, corporation, association, governmental subdivision, or public or private organization that is not a state agency.").

[3] In Texas Municipal League, the Texas Supreme Court articulated a three-part test to determine the constitutionality of an expenditure of public funds, stating that a governmental entity must (1) ensure that its expenditure of public funds is to "accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds to ensure that the public purpose is accomplished and to protect the public's investment; and (3) ensure that the political subdivision receives a return benefit." Tex. Mun. League, 74 S.W.3d at 384.