What mental state does a prosecutor have to prove for the Texas crime of a county official refusing to follow county budget rules?

Plain-English summary

The Rusk County and District Attorney asked a narrow question: when a county official is accused of refusing to follow the county budget rules, what state of mind does a prosecutor have to prove? The crime sits in Local Government Code section 111.012, which says an officer, employee, or official of a county government who "refuses to comply" with subchapter A of chapter 111 commits an offense, punishable as a misdemeanor by a fine of $100 to $1,000, county jail time of one month to a year, or both.

Subchapter A governs budget preparation in counties with a population of 225,000 or less. It makes the county judge the budget officer, requires the judge to prepare a proposed budget, and builds in steps so residents can see and comment on it, including public inspection of the proposed budget, a public hearing, notice of that hearing, and publication of the notice in a local newspaper. The requestor pointed to an alleged violation of one of those notice provisions.

The statute does not name a culpable mental state. Under Texas criminal law, a crime generally needs both a wrongful act and a guilty mind. Penal Code section 6.02(b) says that when an offense definition leaves out a mental state, a mental state is still required unless the definition plainly dispenses with one. The AG reasoned that the word "refuses," meaning a positive, willful unwillingness to comply rather than an accident, shows the Legislature did not plainly drop the mental element. So a mental state is required. Penal Code section 6.02(c) then supplies the answer: where an offense needs a mental state but names none, "intent, knowledge, or recklessness" suffices. The AG stopped there, noting it does not decide which mental state fits a particular set of facts or whether any specific person is guilty, because those are fact questions left to prosecutorial discretion.

What this means for you

If you are a county official covered by chapter 111

Based on this opinion, refusing to comply with the county budget-preparation rules in subchapter A is a misdemeanor, and a prosecutor would need to show you acted with intent, knowledge, or recklessness. The AG read "refuses" as requiring a conscious, willful choice, not an honest mistake or oversight. The opinion does not say what facts would clear that bar; it only identifies which mental states can support a charge.

If you are a prosecutor

The opinion confirms that section 111.012 carries a culpable-mental-state element supplied by Penal Code section 6.02(c), so intent, knowledge, or recklessness each suffice. The AG was explicit that it does not advise on which mental state applies in a given case or whether to bring charges; those determinations stay within your discretion.

If you advise a county or commissioners court

The decisive points are that section 111.012 omits an express mental state, that the word "refuses" keeps it from "plainly dispensing" with a mental element under section 6.02(b), and that section 6.02(c) then sets the floor at intent, knowledge, or recklessness. The penalty provision reaches an "officer, employee, or official" of county government, not only the county judge who serves as budget officer.

Common questions

Q: Is it really a crime for a county official to mishandle the budget process?
A: Local Government Code section 111.012 makes it a misdemeanor for a county officer, employee, or official to refuse to comply with the budget-preparation rules in subchapter A of chapter 111. The penalty is a fine of $100 to $1,000, jail time of one month to a year, or both.

Q: What does the prosecutor have to prove about the person's state of mind?
A: Because the statute names no mental state but does not plainly drop one, Penal Code section 6.02(c) controls, and intent, knowledge, or recklessness is enough.

Q: Does an honest mistake count?
A: The AG read "refuses" to mean a positive, willful unwillingness to comply, which is more than a mere accident. The opinion does not decide any specific case, so whether particular conduct meets the standard is a fact question.

Q: Which counties does this apply to?
A: Subchapter A of chapter 111 governs budget preparation in counties with a population of 225,000 or less. Rusk County, the requestor's county, had about 52,000 residents per the 2020 Census.

Q: Did the AG say whether anyone broke the law here?
A: No. The AG noted that whether a person committed an offense is a fact question outside an AG opinion, and that the charging decision is within the prosecutor's discretion.

Background and statutory framework

A crime in Texas generally requires both an act (actus reus) and a guilty mind (mens rea), and offenses requiring no mental state are disfavored (Cook v. State; Staples v. United States). Local Government Code section 111.012 creates a misdemeanor for an officer, employee, or official of a county government who "refuses to comply" with subchapter A of chapter 111, the budget-preparation rules for counties of 225,000 or less (sections 111.001-.014). That subchapter makes the county judge the budget officer (section 111.002), requires a proposed budget (section 111.003), and provides for public inspection, a public hearing, hearing notice, and newspaper publication (sections 111.006(b), 111.007(a), (c), 111.0075(a)).

Section 111.012 does not state a culpable mental state. Penal Code chapter 6 supplies culpability for offenses outside the Penal Code unless the offense provides otherwise (sections 6.01-.04, 1.03(b)). Section 6.02(b) requires a culpable mental state unless the definition "plainly dispenses with any mental element." The Local Government Code does not define "refuses," and it is not one of the culpable mental states in Penal Code section 6.03, but the term means "to show or express a positive unwillingness to do or comply with" something (Webster's Third New International Dictionary; Anzaldua v. State; City of El Paso v. Abbott). Because that willful quality shows the Legislature did not plainly dispense with the mental element (Celis v. State), section 6.02(c) governs: where a mental state is required but unnamed, "intent, knowledge, or recklessness suffices." The AG declined to opine on how the mental state relates to the conduct elements of the offense (McQueen v. State) or to advise prosecutors on the exercise of their discretion.

Citations and references

Statutes:

• Tex. Loc. Gov't Code § 111.012 — offense for refusing to comply with county budget-preparation rules
• Tex. Penal Code § 6.02 — when a culpable mental state is required and which states suffice
• Tex. Penal Code § 6.03 — defines intentional, knowing, reckless, and criminally negligent

Key cases:

• Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) — a crime requires a criminal act accompanied by a criminal mind
• Staples v. United States, 511 U.S. 600 (1994) — offenses requiring no mens rea are disfavored
• Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013) — analyzing whether the Legislature intended to dispense with a mental state
• Anzaldua v. State, 696 S.W.2d 911 (Tex. Crim. App. 1985) — defining "refuses"

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0430
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2023/kp-0430.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 10, 2023

The Honorable Micheal E. Jimerson
Rusk County & District Attorney
115 North Main, Suite 302
Henderson, Texas 75652

Opinion No. KP-0430

Re: Required mental state under Local Government Code section 111.012, which creates a criminal offense for an officer, employee, or official of a county government who refuses to comply with applicable budget preparation requirements (RQ-0471-KP)

Dear Mr. Jimerson:

You ask about the culpable mental state required for the criminal offense created by Local Government Code section 111.012.¹ You provide information relating to a possible violation of county budget preparation requirements and ask about the necessary mental state under the related penalty provision, section 111.012.² See Request Letter at 1–2.

Local Government Code chapter 111

Section 111.012 provides that:

(a) An officer, employee, or official of a county government who refuses to comply with this subchapter commits an offense.

(b) An offense under this section is a misdemeanor punishable by a fine of not less than $100 or more than $1,000, confinement in the county jail for not less than one month or more than one year, or by both fine and confinement.

TEX. LOC. GOV'T CODE § 111.012. Section 111.012 is part of subchapter A, which governs budget preparation in counties with a population of 225,000 or less.³ See id. §§ 111.001–.014. Subchapter A designates the county judge as the budget officer for the commissioners court and requires the county judge to prepare a proposed budget for the county. Id. §§ 111.002 (identifying the county judge as the budget officer), 111.003 (requiring the budget officer to prepare a proposed budget for the county). As a general matter, subchapter A contains provisions designed to make the county residents aware of the proposed budget and the commissioners court's consideration of it. See generally id. §§ 111.006(b) (requiring a copy of the proposed budget to be made available for public inspection), 111.007(a) (requiring a public hearing on the proposed budget), 111.007(c) (requiring notice for budget hearing and specifying its contents and timing), 111.0075(a) (requiring publication of notice of the public hearing in "at least one newspaper of general circulation in the county"). You allege a violation related to a notice provision and ask about the culpable mental state associated with section 111.012. See Request Letter at 1–2; see also TEX. LOC. GOV'T CODE § 111.007.

Culpability under the Penal Code chapter 6

A fundamental principle in criminal law is "that in order to constitute a crime, the act or actus reus must be accompanied by a criminal mind or mens rea." Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim App. 1994); see also Staples v. United States, 511 U.S. 600, 606 (1994) (stating that "offenses that require no mens rea . . . are disfavored"). As you point out, section 111.012 does not define the offense with an express culpable mental state. See Request Letter at 1; see also TEX. LOC. GOV'T CODE § 111.012. Rather, it uses the phrase "refuses to comply." TEX. LOC. GOV'T CODE § 111.012. Absent an express mental state in the statute, Penal Code chapter 6 generally provides for culpability. See TEX. PENAL CODE §§ 6.01–.04; see also id. § 1.03(b) (providing for the application of the general provisions of the Penal Code "to offenses defined by other laws, unless the statute defining the offense provides otherwise"). Subsection 6.02(b) states that "[i]f the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element." Id. § 6.02(b).

Section 111.012 provides that a person commits the offense when the person "refuses" to comply with subchapter A. TEX. LOC. GOV'T CODE § 111.012. The Local Government Code does not define "refuses," nor does Penal Code chapter 6 identify "refuses" as a culpable mental state. See generally TEX. PENAL CODE § 6.03. The term means "to show or express a positive unwillingness to do or comply with (as something asked, demanded, expected)." WEBSTER'S THIRD NEW INT'L DICTIONARY 1910 (2002); see also Anzaldua v. State, 696 S.W.2d 911, 912 (Tex. Crim. App. 1985) (defining "refuses" with the same Webster's definition); City of El Paso v. Abbott, 444 S.W.3d 315, 324 (Tex. App.—Austin 2014, pet. denied) (using the same definition in context of the Public Information Act's waiver of sovereign immunity for a governmental body that refuses to supply public information). While it is not one of the identified culpable mental states listed in the Penal Code, the fact that the Legislature used a term requiring more than a mere accident but a willful expression of a conscious choice is evident that the Legislature did not mean section 111.012 to "plainly dispense" with any mental element. See generally Celis v. State, 416 S.W.3d 419, 423–24 (Tex. Crim. App. 2013) (analyzing the statute to examine the question whether the Legislature intended to dispense with a mental state). Accordingly, Penal Code subsection 6.02(b) requires a culpable mental state. See TEX. PENAL CODE § 6.02(b).

Subsection 6.02(c) provides that "[i]f the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required . . . , intent, knowledge, or recklessness suffices to establish criminal responsibility."⁴ Id. § 6.02(c). The facts will determine which mental state may be appropriate in particular circumstances, and this office does not in an Attorney General opinion presume to advise prosecutors on the proper exercise of their discretion.⁵ See generally Tex. Att'y Gen. Op. No. JM-892 (1988) at 2; see also Tex. Att'y Gen. Op. Nos. GA-0967 (2012) at 2 ("Within the confines of the prosecutor's duty 'not to convict but to see that justice is done,' the factors a prosecutor elects to consider when evaluating how to proceed in a case are squarely within the scope of prosecutorial discretion." (footnote omitted)), GA-0246 (2004) at 3 (recognizing the difficulty in proving intent in certain circumstances and noting that "whether to proceed in such a case is a matter squarely within the prosecutor's discretion").

S U M M A R Y

Pursuant to Local Government Code section 111.012, an officer, employee, or official of a county government who refuses to comply with the budget preparation duties in subchapter A of chapter 111 commits an offense. Section 111.012 does not prescribe the culpable mental state but neither does it plainly dispense with any mental element. Accordingly, Penal Code subsection 6.02(c) provides that "intent, knowledge, or recklessness" suffice to establish criminal responsibility.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

¹ See Letter from Honorable Micheal E. Jimerson, Rusk Cnty. & Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 12, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0471KP.pdf ("Request Letter").

² You do not ask us to opine on the question whether any person is guilty of an offense. See generally Request Letter at 1–3. The question "[w]hether a person has committed a crime in any particular circumstance is a question of fact that cannot be resolved in an attorney general opinion." Tex. Att'y Gen. Op. No. JC-0256 (2000) at 3; see also Tex. Att'y Gen. Op. Nos. GA-0326 (2005) at 6 (explaining proof of culpable mental state is a fact question), GA-0765 (2010) at 3 (concluding that "[a] district attorney's prosecutorial determination regarding the initiation of criminal proceedings is within the prosecutor's substantial discretion").

³ According to the 2020 Census, Rusk County's population is just over 52,000. See Quick Facts, UNITED STATES CENSUS BUREAU, https://www.census.gov/quickfacts/ruskcountytexas (last visited Sept. 22, 2022).

⁴ As it is beyond the scope of your question, we do not opine on the question of how the culpable mental state may relate to the conduct elements of the offense. See McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) (construing Penal Code section 6.03, which defines four culpable mental states, as delineating "three 'conduct elements' which may be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct").

⁵ Briefing submitted to this office shares "additional information provided by Rusk County officials that indicates that the requirements of the . . . statute were fulfilled." Letter from James P. Allison, Gen. Couns., Cnty. Judges & Comm'rs Ass'n of Tex., to the Op. Comm. at 2 (Aug. 31, 2022) (on file with Op. Comm.).