Untitled Texas Attorney General Opinion

The Honorable Fred Head Opinion No. H- 55
House of Representatives
Capitol Building Re: The construction of
Austin, Texas House Bill No. 8
Dear Representative Head:
You have submitted to us House Bill No. 8, adopted by the 63rd
Legislature and ask 17 specific questions concerning its construction.
In general, House Bill 8 amends Title 87 of the Revised Civil
Statutes by adding thereto Article 5428a. (References hereafter are
to sections of Article 5428a unless otherwise noted.)
Section 1 contains definitions. Section 2 requires each candidate
(defined as any member or candidate for the House who has announced
that he will seek election to the Office of Speaker) to keep records of
all information required by the Article.
Section 3 requires each candidate to file a sworn statement with
the Secretary of State on the first day of January, March, May, July,
September and November and the day preceding each Regular and Called
Session of the Legislature, until all campaign loans have been repaid,
listing: (I) each contribution of money received by him, or by others in
behalf of his campaign: (2) each contribution of services and other things
of value other than money received by him or others in behalf of his cam-
paign, giving the nature of the contribution, etc. ; (3) each loan made to
him or others in behalf of his campaign, including specific information
concerning such loan; (4) each expenditure of funds made by him or in
his behalf in excess of $10; and (5) his sworn statement on an official form
designated by the Secretary of State.
Section 4 has to do with filing. Section 5 provides penalties for
those who willfully fail to file the statement. Section 6 provides that all
statements filed under the statute shall be open to public inspection.
Section 7(a) prohibits corporations, partnerships, associations, firms,
unions, foundations, committees, clubs or other organizations or groups
of persons from contributing or lending or promising to contribute or
p. 229
The Honorable Fred Head, page 2 (H-55)
lend money or other things of value to any candidate or other person for
the purpose of aiding or defeating the election of any candidate. Subsec-
tion (b) excepts loans made in the dunecourse of business to a candidate
for campaign purposes by a corporation legally engaged in the business
of lending money. Subparagraph (c) provides penalties for violation of
subsection (a) and subsection (d) provides for punishment of any candidate
who knowingly receives such illegal237 S.W.2d 273 (Tex. 1951). The entire act must be con-
strued in the light of all of its provisions, obligations and requirements.
Texas Turnpike Authority v. Shepperd, 279 S.W.2d 302 (Tex. 1955);
Rogers v. First National Bank of Midland, 448 S.W.2d 149 (Tex. Civ.
APR. , 1969), err. ref’
d, n. r. e.). A reasonable construction should be
given, not one that would lead to absurd conclusions. McKinney v.
Blankenshie, 282 S.W.2d 691 (Tex: ~1955).
Your first question is:
“Subject to the prohibitions found in Section 11
of H. B. 8, may w individual contribute money directly
to a candidate’s campaign fund? If so, is there any
limitation upon the amount of money such individual
may contribute directly to a candidate’s campaign fund? ”
Section IO(a) alone would seem to limit individual contributions to
personal services and traveling expenses, and a sum not to exceed $100 for
the cost of correspondence. However, $ 3(l) contemplates that a candidate
will receive contributions of money. Since $7(a) makes.it illegal for any-
one but an individual to contribute, it must be that, in addition to those
rights specifically conferred by 5 10(a), individuals may also contribute
funds. There is no limitation on the amount which they may contribute.
Your second question asks:
“Subject to the prohibitions found in Section 11
of H. B. 8, may any individual contribute services
and other things of value directly to a candidate? If
so, is there any limitation upon the amount of services
and other things of value such an individual may con-
tribute directly to a candidate? ”
Our answer to Question 2 is the same as our answer to Question 1.
Section 3(2) recognizes that a candidate may receive contributions of ser-
vices and other things of value other than money (which may not be contri-
buted by any corporation or other entity than an individual, under $7.
There would be no limitation as to the amount or value of the services
and things thus contributed.
p. 231
The Honorable Fred Head, page 4 (H-55)
Your third question asks:
“May an individual contribute the use of
transportation devices, operators of same, and
expenses atttibutable thereto, to a candidate for
use by the candidate in behalf of his campaign’?
if so, is there any limitation on the value of the
transportation, operators of same, and expenses
attributable thereto that an individual may contri-
bute ? .I’
It is our opinion that when $ 3(2), speaking of contributions “of ser-
vices and other things of value, other than money, ” includes contributions
of the type about which you ask. Therefore our answer to Question 3
would be substantially,the same as our answers to 1 and 2. There would
be no limitation as to the value.
Your fourth question is:
“Is it legal for a member of the Texas Legis-
lature to contribute money, services, and other things
of value to a candidate in behalf of his campaign?
Please consider all Texas statutory law, the State
Constitution and the Rules of the Texas House. ”
Construction of the Rules of the Texas House of Representatives
is a responsibility, in the first place, of the Speaker himself, and second-
arily, of the Parliamentarian. We feel it would be inappropriate in this
context for us to attempt to tell the House of Representatives what its rules
mean and therefore we decline to answer insofar as that portion of your
question is concerned. With reference to the Texas statutes, other than
prohibitions against bribery and siniilar statutes of general application,
we find no law prohibiting a contribution by a member of the Legislature to
a candidate for Speaker of the House. Nor do we believe that the Texas
Constitution would inhibit such contribution. House Bill 8 would prohibit
members and employees of the executive and judiciary departments from
contributing, thus raising a question as to Equal Protection; nevertheless,
we feel that this represents a reasonable classification which would be up-
p. 232
The Honorable Fred Head, page 5 (H-55)
held by the courts. Bjorgo v. Bjorgo, 492 S.W. 2d 143 (Tex. 1966);
Buchanan v. State, 480 S.W.2d 207 (Tex. Crim. 1972).
Your fifth question is:
“In reporting the contribution of services or
. other things of value iB a-candidate required to state
the estimated value of such service or things of value?”
Section 3(2) requires that the sworn statement of the candidate filed
with the Secretary of State shall list the following information:
“(2) Each contribution of services and other
things of value . . . , the nature of the contribution,
the complete name and address of the contributor,
and the date and value of the contribution; . . . . ”
We believe therefore that the answer to your fifth question is “Yes. ”
.Your sixth question asks:
“Whatdoes the term ‘correspondence’ mean
as used in Section 10(a) of H. B. 8?”
In construing statutes we are required by Article 10, Vernon’s Texas
Civil Statutes, to give words their ordinary signification unless they are
words of art. “Correspondence” is not a word of art. It has a number of
meanings among which are: (1) the state or condition of agreement of things
or of one thing with another; (2) the communication between persons by an
exchange of letters; any communication by lette~rs; (3) the letters exchanged
by correspondents; etc. (Webster’s Third New International Dictionary,
1967). We are of the opinion that to attribute to “correspondence, ” as used
in $10, any meaning other than the second stated above would be to ignore
the qbvious intent of the Legislature and to give to the statute an unrealistic
meeting. Thus it is our understanding and opinion that $ IO(a) permits an
individual to spend not to exceed $100 for ,the cost of communicating with
other persons by LetLer, the cost to be composed of the cost of preparing
the letter and the cost of postage.
p. 233
The Honorable Fred Head, page 6 (H-55)
Your seventh question is:
“Does the term ‘in the aggregate’ as used in
Section IO(a) of H. B. 8 refer to the total expenditures
of any individual for the cost of correspondence from
the effective date of H. B. 8 until the time of election
. or defeat of a candidate br-does it refer to expendi-
tures relating to specific transactions separate and
apart from other subsequent transactions? ”
It is our opinion that the word must mean the aggregate of all costs
for correspondence during the campaign.
Your eighth question asks:
“Is a candidate required to report expenditures
for correspondence made by another individual in be-
half of said candidate’s campaign when paid by stich
other individual? ”
Section 3 governing the report to be filed by each candidate requires
the report of money received, of the contribution of services and other things
of value received by him or others in behalf of his campaign, of loans made
to him or such others, and of each expenditure of campaign funds made by
him, “his agents, servants, staff members, or employees in behalf of his
campaign. ” It would not seem to cover expenditures made by others not on
‘his staff but not contributed to his campaign as funds or spent by him, There-
fore, OUT answer to question 8 would be that a candidate is not required to
report expenditures for correspondence made by another individual not on
his staff when they are paid by another individual.
Question nine asks whether a candidate is required to report personal
services of another individual in his behalf when paid by such other indivi-
dual. While an individual is authorized to contribute his personal services,
we see nothing in the Act which would authorize an individual to purchase
personal services of another in behalf of the campaign. However, in either
event, § 3(2) would seem to require the candidate to report each contribution
of services received by him.
p. 234
The Honorable Fred Head, page 7 (H-55)
Your tenth question is:
“Is a candidate required to report traveling
expenses of another individual in behalf of said
candidate’s campaign when paid by such other in-
dividual? ”
. ‘ -.
If an individual, while contributing his own personal services,
travels and incurs expenses which he himself pays, we do not believe
that the candidate is required to report those expenses, provided the
individual is not on the candidate’s staff. [Sec. 3(4)]
Your eleventh question asks:
“May a candidate expend funds for travel
expenses incurred by House members attending
political and other meetings in behalf of his can-
didacy? ‘!
Section 9(a)(l) lists as a permissible expenditure of campaign
funds: “travel for the candidate, his immediate family, and his cam-
paign staff. ” If another member of the House is also a member of the
candidate’s campaign staff then it is our opinion that the candidate niay
expend funds for his travel expenses. If he is not a member of the staff,
then his expenses cannot be paid.
Your twelfth question asks:
“May a candidate expend funds for travel
expenses incurred by nonpaid staff and supporters
attending political and other meetings in behalf of
his candidacy? ”
Referring again to § 9(a) (1) of the act, it is our answer that as to the
campaign staff, whether paid or not, campaign funds may be used to cover
the expense of travel. Travel expenses for persons who are merely sup-
porters but not staff members and not members of the candidate’s family
could not legitimately be paid.
p. 235
The Honorable Fred Head, page 8 (H-55)
Your thirteenth question asks:
“Does H. B. 8 require the filing of expenditures
made in behalf of a speaker’s campacgn of less than
$lO.OO? If so, must such a filing list name of person
paid and purpose of expenditure?”
. l --
Section 3(4) in defining expenditures which must be reported states:
“Each expenditure of campaign funds made by
him, his agents, servants, staff members or employees
in behalf of his campaign, the complete name and address
of each person to whom a payment in excess of ten dollars
($10.00) is made and the purpose of each expenditure. . . . I’
The ten dollar limitation, in our opinion, only applies to the listing of
the name and address of the recipient and the report must list each expendi-
ture and must give the purpose of each~expenditure. The name of the reci-
pient is to be listed only.in the event the expenditure exceed $10.
Your fourteenth question asks:
“Does the prohibition found in Section 11 of
H. B. 8 violate any state or federal constitution
provision? ”
We have previously alluded to the exclusion by 5 11 of officers or em-
ployees of either the.executive or judicial branch of the state government
from those who may contribute services, money or goods toward the candi-
dacy of any person for the office of Speaker of the House of Representatives.
The problem, if there is one, is one of equal protecti,on guaranteed both by
the Federal and the State Constitutions. However, under each Constitution,
the Legislature may classify persons and treat persons differently. So long
as the,classification is not arbitrary and capricious, it is not unconstitutional.
Where, as in this case, the election involved concerns the inner work-
ings of the legislative branch of the government, we are not able to state
p. 236
The Honorable Fred Head, page 9 (H-55)
that exclusion of influence by the executive and judicial branches is with-
out reason or is impermissible. It is our opinion therefore that $11 does
not violate any State or Federal constitutional provision.
Your fifteenth question asks:
. “Other than the prohibitions of Section 11 of
H. B. 8,are State officials or employees in any way
prohibited from contributing money, services, and
other things of value directly to a candidate’s cam-
paign fund? ”
1t is our opinion that state officials or employees, other than those
excluded by $11, are not prohibited from contributing money, service and
other things of value directly to a candidate’s campaign fund.
Question sixteen asks:
“May all entities that are legally engaged in
the business of lending money and that have contin-
uously conducted such business for more than one
year make loans to a candidate?”
After excluding from those who might contribute to a candidate’d’fund
corporations, partnerships, associations, firms, unions, foundations, com-
mittees, clubs or other organizations or groups of persons, 5 7(b) states:
“This section does not apply to loans made in
the due course of business to candidate’s for campaign
purposes by a corporation that is legally engaged in
the business of lending money and that has continuously
conducted the business for more than one year prior to
the making of the loan. ”
The provision is unambiguous and applies only to corporations. Other
entities, even though legally engaged in the business of lending money, etc.,
are prohibited by $7(a) from making loans to candidates.
p. 237
The Honorable Fred Head, page 10 (H-55)
Your seventeenth question asks:
“May individuals make loans to a candidate in
behalf of the candidate’s campaign? ”
Since individuals are not prohibited by $7(a) from lending money to
a candidate and since there is no litiitation or prohibitions upon the amount
which may be donated by an individual to a candidate, it is our opinion that
individuals may make loans to a candidate in behalf of,his campaign.
SUMMARY
House Bill 8, for the most part, is unambiguous
and must be read literally with reference to who may
and may not contribute to the campaign of candidates
for election to the office of Speaker of the House, the
amounts of such contributions, the extent of expendi-
tures which may be made of campaign funds, and
other similar matters.
Very truly yours,
c/Attorney General of Texas
APPR,&ED:
DAVID M. KENDALL, Chairman
Opinion Committee
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