Texas Penal Code 36.09 – Offering Gift to Public Servant

WHAT IS OFFERING GIFT TO PUBLIC SERVANT IN TEXAS?

The Texas law against offering a gift to a public servant prohibits offering gifts or other benefits to public servants under most circumstances.

WHAT IS THE OFFERING GIFT TO PUBLIC SERVANT LAW IN TEXAS?

Tex. Penal Code § 36.09. OFFERING GIFT TO PUBLIC SERVANT.

(a) A person commits an offense if he offers, confers, or agrees to confer any benefit on a public servant that he knows the public servant is prohibited by law from accepting.

(b) An offense under this section is a Class A misdemeanor.

Tex. Penal Code § 36.10. NON-APPLICABLE.

(a) Sections 36.08 (Gift to Public Servant) and 36.09 (Offering Gift to Public Servant) do 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 he 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 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:

(A) the benefit and the source of any benefit in excess of $50 is reported in the statement; and

(B) 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 Title 15, Election Code;

(5) a gift, award, or memento to a member of the legislative or executive branch that is required to be reported under Chapter 305, Government Code;

(6) an item with a value of less than $50, excluding cash or a negotiable instrument as described by Section 3.104, Business & Commerce Code;

(7) an item issued by a governmental entity that allows the use of property or facilities owned, leased, or operated by the governmental entity;

(8) transportation, lodging, and meals described by Section 36.07(b); or

(9) complimentary legal advice or legal services relating to a will, power of attorney, advance directive, or other estate planning document rendered:

(A) to a public servant who is a first responder; and

(B) through a program or clinic that is:

(i) operated by a local bar association or the State Bar of Texas; and

(ii) approved by the head of the agency employing the public servant, if the public servant is employed by an agency.

. . .

(c) Section 36.09 (Offering Gift to Public Servant) does not apply to food, lodging, transportation, or entertainment accepted as a guest and, if the donor is required by law to report those items, reported by the donor in accordance with that law.

(d) Section 36.09 (Offering Gift to Public Servant) does not apply to a gratuity that is offered in accordance with Section 11.0262, Parks and Wildlife Code.

WHAT IS THE PENALTY CLASS FOR OFFERING GIFT TO PUBLIC SERVANT IN TEXAS?

Offering a gift to a public servant is a Class A misdemeanor, punishable by up to one year in county jail.

WHAT IS THE PUNISHMENT RANGE FOR OFFERING GIFT TO PUBLIC SERVANT IN TEXAS?

Offering a gift to a public servant, a Class A misdemeanor, carries up to one year in jail, and a maximum $4,000 fine.

WHAT ARE THE PENALTIES FOR OFFERING GIFT TO PUBLIC SERVANT IN TEXAS?

A person charged with offering a gift to a public servant may be placed on probation for up to two years, or deferred adjudication without a conviction for up to two years.

WHAT ARE THE DEFENSES TO OFFERING GIFT TO PUBLIC SERVANT IN TEXAS?

The same defenses for public servants accused of soliciting illegal gifts are available for those accused of offering gifts to public servants. If the gift or benefit is a legal campaign or officeholder contribution, given to the public servant based on an independent personal relationship, free legal advice to a first responder, reported lodging and meal expenses, or worth less than $50, the benefit may be offered and accepted.

WHAT IS THE STATUTE OF LIMITATIONS FOR OFFERING GIFT TO PUBLIC SERVANT IN TEXAS?

The limitation period for offering a gift to a public servant, a Class A misdemeanor, is two years.

OFFERING GIFT TO PUBLIC SERVANT IN TEXAS

This law against offering gifts to public servants aims to discourage buying the favors of public officials. While the Texas bribery statute requires consideration—something in exchange for the benefit given to the public servant—offering a gift to a public servant does not. If a person knows the public servant is prohibited from accepting the benefit offered, it constitutes an offense.

TEXAS OFFERING GIFT TO PUBLIC SERVANT COURT CASES

The case law regarding offering gift to public servant in Texas illustrates the statute’s application.

• In Smith v. State, the defendant was the Vice-President for Finance and Administration for Texas A&M University, and was convicted of gift to public servant after accepting gifts from Barnes & Noble, an entity with whom Texas A&M had a contract to operate the university’s bookstore. Barnes & Noble flew the defendant and his wife to their corporate office in New York, paid for their meals, lodging, air fare, and theater tickets.

  Because the defendant exercised discretion in purchases and contracts, and Barnes & Noble was an interested party, he was rightfully convicted of accepting a benefit under the gift to public servant law. However, had Barnes & Noble been prosecuted for offering the defendant the gifts, the corporation could have been convicted if it knew he could not accept them.