Untitled Texas Attorney General Opinion ( 1995 )

Office of the Bttornep QSenersl
Mate of Plexari
DAN MORALES
ATTORNEY
GENERAL Febroary21,1995
Honorable Senfronia Thompson Opinion No. DM-325
Chair
Judicial Affairs committee RF:, Whether Education Code section
Texas House of Representatives 21.939 restricts school districts from
P.O. Box 2910 using local fimds to employ persons to
Austin, Texas 78768-2910 monitor the activities of and supply
information to legislators and state
administrative agencies (RQ-680)
Dear Representative Thompson:
You ask whether section 21.939 ofthe Education Code”restrict[s] school districts
from using local Emds to employ persons to monitor the activities of and supply
information to legislators and state administrative agencies.” Section 21.939 provides in
subsections (a) and (b):
(a) A school district may not employ a person who is required
to register under Chapter 305, Government Code,* by virtue of the
person’s activities on behalf of the school district.
(b) A school district may not employ a person whose primary
duties are activities related to proposed legislation or administrative
action, including supplying information to members of the legislative
or executive branch, obtaining information from members of the
legislative or executive branch, monitoring the progress of proposed
legislation or administrative action, or acting as an advocate or
proponent of proposed legislation or administrative action.
‘ChapleT305 of the Govemmenlcode generallyrequirespemonswbo spend or 8re umlpcnsated
in certain amamts “to communicatediredy with one or more membersof the legi5lativeor executive
branch to intluena kgislation or administrativeaction”to registerwith the Texas Etbks Commission.
Wt Code 8 305.003(a). The fegistmtion requirementalso applies to a pemotIwho “as part of his
regular employment” makes such communications,even if be recciws no wqensation for such
kxmmonicatiomapart from his regularsalary. Id p§ 305.002, .003(b). The last senlmce of section
305.003(b), however, exempts “an officn or employeeof a political subdivision”from the nqi.5bation
requirementsfor pmons mmpenssted to make the commnaicstionsin question. Section 305.026
(requiring filing of dir&sun: statement where “political m&division”uses public fbnds for kbby
activities,with exceptions)anticipatesthat public funds will be used by school districtsand other local
public entities for pmpeses of communicatingwith legislators. &e also 1 T.A.C. chs. 30, 32 (Tcxas
Ethics Commissionrulesrelatingto registrationand regulationoflabbyi~W.
p. 1720
Honorable Senfronia Thompson - Page 2 @M-325)
We assume that by “local funds” you mean local tax revenues of a district or other
district finds from local sources. See, e.g., Educ. Code $8 16.252, .302. To the extent
that the prohibitions set out in section 2 1.939, subsections (a) and (b) on school districts’
“employing” lobbyists or persons whose “primary duties” relate to proposed legislation or
administrative action, apply, it does not matter whether a district’s f&ids used to
compensate such persons are from local or other sources. There is simply no basis in the
language of the section 21.939 prohibitions for finding an exception to their application
where “local” funds of a district are used rather than other district &nds for the
“employment” in question.
You also ask: “[IIf Section 21.939 does prohibit the use of local tlmds to hire
persons engaged in lobbying activities, does Section 21.939 violate the free speech and
equal protection clauses of the constitutions of the United States and Texas.” See U.S.
Const. amends. I, XIV; Tex. Const. art. I, $4 3, 3a, 8; see also Tex. Const. art. I, § 27
(right to petition). You suggest that “[iInasmuch as other units of local government with
elected bodies are permitted to employ such persons, it does not seem that the Legislature
could permissibly restrict the rights of some, but not all, local governmental bodies.” An
agency or subdivision of the state, such as a school district, does not itself possess the
personal rights of free speech and equal protection you allude to. See BOJJM Y. Culveri,
467 S.W.2d 205, 210 (Tex. Civ. App.-Austin 1971, writ refd n.r.e.) (“[A] subdivision of
the State. does not have rights which are protected under the First and Fourteenth
Amendments from State action”); McGregor Y. Chwson, 506 S.W.2d 922,929 (Tex. Civ.
App.-Waco 1974. no writ) (“An agency created by a state for the better ordering of
government has no privileges, immunities, or rights under the State and Federal
Constitutions which it may invoke in opposition to the will of its creator.“) See also
Williams v. Mayor and Ci!y Council, 289 U.S. 36 (1933).
p. 1721
Honorable Senfronia Thompson - Page 3 (``-325)
SUMMARY
The prohibitions set out in subsections (a) and (b) of Education
Code section 21.939 on school districts’ “employing” lobbyists or
persons whose “primary duties” relate to proposed legislation or
administrative action, apply regardless of whether a district’s fimds
used to compensate such persons are from local or other sources. A
school district does not itself possess ~the persona) rights of free
speech and equal protection under the state or federal constitutions.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by William M. Walker
Assistant Attorney General
p. 1722