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Analysis: A Friend With a Check is a Friend Indeed

If it's legal to give money to a state officeholder without violating Texas bribery laws — as is apparently the case with gifts reported by Attorney General Ken Paxton for use in his legal defense — what keeps rich folks from sprinkling money on their favorite public officials?

Texas Attorney General Ken Paxton during a May 25, 2016, press conference.

If it's legal to give money to a state officeholder without violating Texas bribery laws — as is apparently the case with gifts reported by Attorney General Ken Paxton for use in his legal defense — what keeps rich folks from sprinkling money on their favorite public officials?

It’s not really a question about the attorney general, even if he’s the one who raised the point for conversation. In his most recent personal financial disclosure — a report required of elected state officials — Paxton brought to light an idiosyncrasy in Texas ethics law.

“$100,000 gift for legal defense from family friend who meets independent relationship exception,” Paxton reported in an entry noting money received from James Webb of Frisco. That was the largest of two dozen such gifts totaling $329,050.

Paxton’s fundraising hasn’t raised any legal objections outside of the usual partisan noise. He’s the poster boy in this not because of the way he’s paying his lawyers but because he has lawyers to pay. Paxton is facing federal and state securities fraud charges related to his work as a private attorney and businessman and not to his state job.

Paxton is fighting indictments on allegations that he was steering people to investments without revealing he was being paid to do so. He also faces related federal civil fraud charges from the Securities and Exchange Commission. He and his lawyers contend the charges are politically motivated and have no merit.

Had he been accused of some official misdeed, he could use campaign funds or a legal defense fund to pay his lawyers to fight the charges — like Gov. Rick Perry did when he was fending off indictments for misusing his office. Perry’s indictments were tossed by the state’s criminal courts, and he’ll never have to go to trial. But getting from accusation to exoneration cost the former governor more than $2 million.

Paxton can’t use his campaign accounts like Perry did. He contends that he is innocent, which rules out some kind of plea agreement to make the charges go away. And he can’t take contributions from anyone who has official business with him or the state.

It’s enough to keep a guy awake at night.

The lawyers have poked around, though, and found some wrinkles in the state’s bribery laws. Campaign contributions are one exception to bribery laws; you can give money to someone in public office for their political account even if they appear to be doing something for you in return. A lobbyist or a business person can contribute to a legislator, for instance, knowing that the recipient will probably take their side in a debate.

There’s an exception for small gifts and meals to state lawmakers, so long as they’re reported to the Texas Ethics Commission (often with the names stripped, which protects both the givers and the takers of such gifts from documenting their professional bonhomie).

If it’s a real friend or if it has nothing to do with the fact that you’re an officeholder, it’s legal. If it’s attached to your clout, it’s not.

Another exception covers the tchotchkes, boots, paintings, recipes and other stuff that would make for a wonderful museum of strange mementos Texans give to their leaders in tribute.

Paxton is using another exception to the laws against gifts to public servants. The penal code says the giving ban doesn’t apply to “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.”

If it’s a real friend or if it has nothing to do with the fact that you’re an officeholder, it’s legal. If it’s attached to your clout, it’s not.

Paxton reported his contributions, and he’ll report any new ones, presumably, when he files his next personal financial disclosure a little less than a year from now. That reveals another odd twist in state law: If this was a campaign account or a legal defense fund for a public act, the public would see more frequent reporting of the contributions and expenditures.

Paxton is in a box that’s not necessarily of his own making: He has to pay his lawyers to try clear his name. He can’t use political funds, but state law allows him to accept gifts from people so long as they aren’t seeking official favor in return.

Paxton is operating inside the bounds of a fuzzy law. Bribery is hard to prove; true friendship might be even harder. 

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