Untitled Texas Attorney General Opinion

May 25, 1990
Honorable John Vance Opinion No. JM-1180
District Attorney
Frank Crowley Courts Bldg. Re: Applicability of the
Dallas, Texas 75207-4313 Cha,ritable Raffle Enabling
Act, article 179f, V.T.C.S.,
to a nonprofit corporation
whose purpose is to oppose
construction of a landfill
(RQ-1962)
Dear Mr. Vance:
You ask two questions about whether a certain organiza-
tion in Dallas County is authorized to conduct a raffle
under the Charitable Raffle Enabling Act [hereinafter the
act], article 179f, V.T.C.S. You tell us that the organiza-
- tion, a nonprofit corporation, opposes the construction of a
landfill near the group's community. You also tell us that
the organization would use the proceeds of the raffle to pay
for representation before the Texas Department of Health in
order to oppose the construction of the landfill because the
members feel that the landfill would be detrimental to the
health of the community.
In your first question, you ask:
Does the group's purpose for conducting the
raffle meet the definitions of 'charitable
purpose' under art. 179f, 5 2(a)(2) where the
purpose is to raise money to pay for repre-
sentation before the Texas Department of
Health?
Section 3(a) of the act allows a qualified organization
to conduct a raffle, and section 3(d) requires that all
proceeds from the sale of raffle tickets be spent for the
charitable purposes of the organization. Section 2(a)(2)
defines "charitable purposes** as follows:
(A) benefiting needy or deserving persons
in this state, indefinite in number, by
enhancing their opportunity for religious or
educational advancement, relieving them from
disease, suffering, or distress, contributing
to their physical well-being, assisting them
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Honorable John Vance - Page 2 (JM-1180)
in establishing themselves in life as worthy
and useful citizens, or increasing their
comprehension of and devotion to the
principles on which this nation was founded
and enhancing their loyalty to their govern-
ment; or
(B) initiating, performing, or fostering
worthy public works in this state or enabling
or furthering the erection or maintenance of
public structures in this state.
V.T.C.S. art. 179f, 5 2(a)(2).
Along with your first question, YOU indicate your
impression that the goal of this organization raises the
issue of a possible conflict between subsections (A) and (B)
in that the organization is attempting to contribute to the
physical well-being of the populace through the defeat of
the construction of a public work.1
We do not believe that there is any conflict between
the two subsections. The use of the word "o??* to connect
the two subsections of the definition clearly signifies that
an organization need not find its purpose in both sub-
P sections.
The act's definition of "charitable purposes*' closely
tracks definitions used by the courts relative to the
establishment of charitable trusts. Se. ea Bovd v.
Frost, 196 S.W.Zd 497, 502 (Tet. 1946;; Powers v.
First Nat'1 Bank of Corsicana, 161 S.W.Zd 273 (Tex. 1942);
Carr v. Jones, 403 S.W.2d 181 (Tex. Civ. App. - Houston [lst
Dist.] 1966, writ ref'd n.r.e.): u Zollman, American
Law of Charities, § 185 et sea.
The Texas Supreme Court has determined that the term
"charitable purposes" has a fixed meaning in the law. Bovd,
suora, at 501. The meaning of that term, described as fixed
in 1946, appears no less fixed in 1990, when we compare the
definition found in the act with that offered by Perry (in
1. There is authority for the proposition that the
construction of a landfill is the construction of a "public
work." See, e.a ., e, 479 S.W.Zd 257
(Tex. 1972) (for liability purposes, garbage disposal is a
governmental function): Schulman v. Citv of Houston, 406
S.W.2d 219 (Tex. Civ. App. - Tyler 1966), pet. overruled,
412 S.W.2d 34 (Tex. 1967) (manner, method, and site of
garbage disposal within discretion of city council):
see also Health & Safety Code chs. 361, 363, 364.
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Honorable John Vance - Page 3 (JM-1180)
i
2 Perry, Trusts and Trustees 5 697 (7th ed. 1929)) and
approvingly quoted by the supreme court. Id.at502. In
the Powers opinion, the commission of appeals knowingly
applied charitable use law derived from tax statutes to a
charitable trust established in a will. Powers. sunra, at
280. Thus, we can see no reason not to apply charitable
purpose law derived from taxation statutes and the law of
trusts to the relatively new use of the term "charitable
purposesl* in the charitable raffle act.
Although we can review relevant legal principles, we
cannot make a determination as to whether the expenditures
you ask about would be for a charitable purpose. Such a
determination would depend on findings of fact, which we
cannot make in the opinion process. The fact that an
organization is a nonprofit corporation is not, by itself,
dispositive of the question of charitable purpose. River
Oaks Garden Club v. Citv of Houston 370 S.W.Zd 851 (Tex.
1963). To determine whether the purpose of the organization
is charitable, a court would examine at least the organiza-
tion's statement of purpose in its charter or articles of
incorporation, and the ultimate beneficiaries. See Blocker
V. State, 718 S.W.2d 409 (Tex. Civ. App. - Houston [lst
Dist.] 1986, writ ref'd n.r.e.) (charitable identity
permanently established in corporate charter); powers,
- suora, (orphanage devoted to all orphans, regardless of
their religious affiliation, is charitable).
Local prosecuting attorneys are better equipped to make
preliminary factual determinations in regard to whether
certain conduct violates state gambling laws. Section 5(a)
of the act authorizes county, district and criminal district
attorneys, as well as the attorney general, to bring action
in a county or district court for an injunction or re-
straining order.
In your second question, you ask:
Does the act's exclusion of lobbying organi-
zations, contained in 5 6(a)(3), 5 6(b) (3),
and 5 6(c)(3), apply to a citizen's group
which is raising funds in order to appear
before an administrative board or agency, in
this case the Texas Department of Health?
The act and the constitutional amendment that authorize
charitable raffles permit a 'Qualified nonprofit corpora-
tion" to conduct a raffle for "charitable purposes.*t
Section 6 of the act defines the term "qualified nonprofit
organiz.ationt' and includes requirements in addition to
incorporation as a nonprofit corporation. V.T.C.S. art.
/-
179f, 5 6(a).
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The three provisions about which you ask require that
to be qualified to hold a raffle, neither the organization
nor its parent organization "devote a substantial part of
its activities to attempting to influence legislation.1'
These prohibitions on "attempting to influence legisla-
tion" are limited to exactly that. The lobby regulation act
includes both traditional, legislative lobbying and, since
1983, attempts to influence administrative action. w
my Gov't Code ch. 305. Inasmuch as that chapter's
various provisions repeatedly contain the expression "to
influence legislation administrative action,"
believe that the legislaE&e intended, in the Charitabyz
Raffle Enabling Act, to prohibit only attempts to influence
legislation. S ed Gov't Code 85 305.003(a)(l),
305.004(l), 305.:05(tj; 'see also Gov't Code 5 305.002(l)
(definition of administrative action), 305.002(6) (defini-
tion of legislation). Therefore, we conclude that opposing
approval of a landfill before the Department of Health would
not constitute an attempt to influence legislation under the
act.
SUMMARY
The opposition of the approval of
landfill~before the Department of Health doe:
not constitute lobbying and does not, by
itself, disqualify an organization from being
a qualified nonprofit corporation under the
Charitable Raffle Enabling Act.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
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