Commentary: Is the Bribery Provision of the Texas Constitution the Biggest Legal Threat to Bonnen?

by Matt Rinaldi

The audio recording of Texas House Speaker Dennis Bonnen’s infamous meeting with Empower Texans CEO Michael Quinn Sullivan may have established that Bonnen acted illegally.

It all depends on which laws you consider.

While the Texas Rangers are conducting an investigation to collect evidence, they are not a prosecutorial agency. Those responsibilities are left to district attorneys, the attorney general, in the case of civil removal proceedings, and even legislators themselves, in instances affecting the qualifications of its members.

The media has thus far focused on the Texas Penal Code’s bribery statute, which is narrow in scope. In order to establish a violation, an elected official must solicit a “benefit,” which is narrowly defined as “pecuniary gain.”

In criminal law, “pecuniary” refers to any monetary or economic gain that serves as an impetus for the commission of an offense. To argue this happened here is likely a stretch, even though Bonnen did ask Sullivan not to provide financial support to any candidate who may challenge Bonnen.

Setting aside the penal code, there is an applicable provision in Texas law that virtually every media outlet has either missed or ignored. The Texas Constitution has an extremely broad definition of “bribery” that, despite some poorly reasoned legal arguments to the contrary regarding its application, is very clearly drafted to encompass a far greater range of conduct than the criminal statute. It is also by law not within the statutory scope of the Texas Rangers’ investigation.

Article 16, Section 41 of the Texas Constitution states, in relevant part (full text can be found here):

BRIBERY AND SOLICITATION OR ACCEPTANCE OF BRIBES. . . . [A]ny member of the Legislature . . . who shall solicit, . . . or consent to receive, directly or indirectly, for himself, or for another, from any company, corporation or person, any . . . reward, thing of value . . . or of personal advantage or promise thereof, for his . . . official influence, . . . or with any understanding, expressed or implied, that his . . . official action shall be in any way influenced thereby, . . . shall be held guilty of bribery, within the meaning of the Constitution, and shall incur the disabilities provided for said offenses, with a forfeiture of the office they may hold, and such other additional punishment as is or shall be provided by law.

Section 41 does not, by its terms, apply only to pecuniary gain. Instead, it prohibits soliciting, even indirectly, any “thing of value” or “personal advantage” to any person.

It also does not limit itself to an express agreement. It is worded so broadly to include “any understanding, expressed or implied” that the legislator’s official action will be influenced thereby.

Applying this verbiage to the discussion between Bonnen and Sullivan, it’s difficult to summarily dismiss a violation of Section 41. Bonnen, a member of the legislature, appears to have at least indirectly (if not directly) solicited Empower Texans to make campaign expenditures in certain races and refrain from making them in others.

At one point in the discussion, Bonnen expressly states he is outlining “an understanding” that “… if we can make this work … I’ll put your guys on the floor next session [i.e. granting press credentials to Empower Texans].” He later reiterates, “… [just so] we’re clear, the money [campaign spending] is the issue…”

The pertinent questions appear to be whether, under Section 41: (1) Empower Texans refraining from spending in certain races, including Bonnen’s, and targeting others is a “reward,” “thing of value” or “personal advantage” for the speaker or another person; and (2) the granting or denial of press credentials is an “official action.”

If the answer to these questions is “yes” and the other elements of Section 41 have been met, the remedy, cumulative to any other punishments provided by law, is forfeiture of office and removal in a proceeding under Chapter 66 of the Texas Civil Practice & Remedies Code.

The attorney general and the Brazoria County district attorney each have standing to bring an action for removal, which would be subject to a lesser burden of proof than a criminal proceeding. Of course, the House members themselves can also remove the speaker if they determine he violated Section 41, acted unethically, or for any reason at all.

Because House members can remove the speaker for any reason, the analysis shouldn’t be focused solely on legal issues. Nevertheless, it appears the legal focus going forward should be whether Bonnen violated Section 41 and has, as a result, forfeited his office. This determination won’t ultimately be made by the Texas Rangers. It will be made by the attorney general, the Brazoria County district attorney, and House members themselves.

This is a commentary submitted and published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to [email protected].