Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
July 16, 2008
Mr. James A. Cox, Jr., Chair Opinion No. GA-0647
Texas Lottery Commission
Post Office Box 16630 Re: Constitutionality ofGovernment Code section
Austin, Texas 78761-6630 467.025(a)(5), which provides that a Lottery
Commission member "may not . . . directly or
indirectly coerce, attempt to coerce, command, or
advise a person to pay, lend, or contribute anything
of value to another person for political purposes,"
and its applicability in specific circumstances
(RQ-0668-GA)
Dear Mr. Cox:
Government Code section 467.025(a)(5) provides that a Lottery Commission member "may
not ... directly or indirectly coerce, attempt to coerce, command, or advise a person to pay, lend,
or contribute anything of value to another person for political purposes." TEX. GOV'T CODE ANN.
§ 467.025(a)(5) (Vernon 2004). You ask about the applicability and constitutionality ofthis section
in specific circumstances:
1. Does section 467.025(a)(5) prohibit a member of the Lottery
Commission either from inviting someone to attend a political
fundraising event or from authorizing the inclusion ofhis or her
name as a sponsor or host of a political fundraising event?
2. Does section 467.025(a)(5) prohibit a member of the Lottery
Commission from soliciting a contribution to a candidate for a
federal office? Does the answer to the preceding question tum
on whether the candidate currently [holds] a Texas state office?
3. Is Attorney General [Opinion No. DM-408's] conclusion about
the constitutionality of section 467.025(a)(5) correct [i.e., that
the statute is not unconstitutional on its face but may be
unconstitutional as applied in particular circumstances] in light
Mr. James A. Cox, Jr. - Page 2 (GA-0647)
of subsequent developments in case law regarding political
speech?!
I. Background
To place section 467.025(a)(5)'s prohibition in context, we first review the responsibilities,
qualifications, and constraints that chapter 467 of the Government Code imposes on Lottery
Commission members. Chapter 467 establishes the Lottery Commission as an executive agency.
See TEX. GOV'T CODE ANN. §§ 467.001-.108 (Vernon 2004 & Supp. 2007). Lottery Commission
members, who serve without compensation, are appointed by the Governor with the advice and
consent ofthe Senate. Id. §§ 467.021(a), .027(a) (Vernon 2004). Members have broad authority to
administer chapter 466 ofthe Government Code and chapter 200 1 ofthe Occupations Code to ensure
the fairness and integrity of the state lottery and state-sanctioned bingo. Id. § 467.101; see also id
§ 466.014(a) ("The commission ... [has] broad authority and shall exercise strict control and close
supervision over all lottery games conducted in this state to promote and ensure integrity, security,
honesty, and fairness in the operation and administration of the lottery."); TEX. OCC. CODE ANN.
§ 2001.051 (b) (Vernon 2004) ("The commission has broad authority and shall exercise strict control
and close supervision over all bingo conducted in this state so that bingo is fairly conducted and the
proceeds derived from bingo are used for an authorized purpose.").
Chapter 467 imposes several limitations on a member's conduct and relationships while
serving on the Commission. While the Code requires that one of the members have experience in
the bingo industry, the Code nevertheless restricts members' current relationships with businesses
regulated by the Commission or persons who receive Commission funds. See TEX. GOV'T CODE
ANN. §§ 467.021(c) (Vernon 2004) (Commission membership), .024 (Commission eligibility). The
Code prohibits a member from receiving gifts and political contributions from individuals or entities,
including political committees, under specified circumstances. See id. § 467.1 06(a), (c) (prohibiting
certain gifts and·contributions and providing that receiving such gifts or contributions is a Class A
misdemeanor).
Section 467.025 of the Government Code, which prohibits Lottery Commission members
from engaging in specified acts, includes the provision that is the focus ofyour questions, subsection
(a)(5):
(a) A commission member may not:
(1) accept any employment or remuneration from:
(A) a person that has a significant financial interest in
the lottery; or
1See Letter from Mr. James A. Cox, Jr., Chair, Texas Lottery Commission, to Honorable Greg Abbott, Attorney
General of Texas, at 1-2 (Jan. 17, 2008) (on file with the Opinion Committee, also available at
www.texasattorneygeneral.gov) [hereinafter Request Letter].
Mr. James A. Cox, Jr. - Page 3 (GA-0647)
(B) a bingo commercial lessor, bingo distributor, or
bingo manufacturer;
(2) play any lottery or bingo game conducted in this state;
(3) accept or be entitled to accept any part ofthe winnings to
be paid from a lottery or bingo game conducted in this state;
(4) use the member's official authority to affect the result of
an election or nomination for public office; or
(5) directly or indirectly coerce, attempt to coerce,
command, or advise a person to pay, lend, or contribute anything of
value to another person for political purposes.
(b) A commission member or former commission member or the
spouse ofa commission member or former commission member may
not solicit or accept employment from a person regulated by the
commission before the second anniversary of the date on which the
commission member's service on the commission ends.
Id. § 467.025 (emphasis added). A violation of section 467.025 is grounds for removal ofa member
by the Governor. See id. § 467.026(a)(3).
II. Analysis
A. ApplicabilitY of Texas Government Code section 467.025(a)(5)
Determining the applicability of section 467.025(a) in particular circumstances requires a
construction of the statute. We begin with your second question, whether section 467.025(a)(5)
prohibits a Commission member from soliciting a campaign contribution to a candidate for federal
office, and whether the answer depends on the candidate's current status as a state officeholder.
See Request Letter, supra note 1, at 2. The statute does not expressly state that it applies to the
solicitation of campaign contributions, and no judicial opinion has construed section 467.025.
In Attorney General Opinion DM-408, however, this office "construe[d] Government Code
section 467.025(a)(5) to prohibit soliciting, as well as coercing, commanding, or advising a political
contribution." Tex. Att'y Gen. Ope No. DM-408 (1996) at 3. The opinion first observed that
Government Code section 467.025(a)(5) appears to be based on a section ofthe federal Hatch Act.
Id. at 2-3. 2 State and local officers and employees subject to 5 U.S.C. § 1502(a)(2) ofthe Hatch Act
2The Hatch Act limits the political activity of government officers and employees, with one part applicable to
federal employees and another part applicable to certain officers and employees of state and local agencies that receive
(continued...)
Mr. James A. Cox, Jr. - Page 4 (GA-0647)
may not "directly or indirectly coerce, attempt to coerce, command, or advise a State or local officer
or employee to pay, lend, or contribute anything ofvalue to a party, committee, organization, agency,
or person for political purposes." 5 U.S.C. § 1502(a)(2) (2000). The phrase "directly or indirectly
coerce, attempt to coerce, command, or advise" in 5 U.S.C. § 1502(a)(2) appears verbatim in
Government Code section 467.025(a)(5). Compare TEX. GOV'TCODEANN. § 467.025(a)(5) (2004)
with 5 U.S.C. § 1502(a)(2) (2000). The similarity in the language of the state and federal statutes,
in light ofthe fact that the federal Hatch Act preceded the Texas statute by some fifty years, led this
office to conclude that section 467.025(a)(5) was modeled on the Hatch Act and, accordingly,
determine that the phrase quoted above appearing in both the state statute and the federal statute
should be construed consistently. See Tex. Att'y Gen. Ope No. DM-408 (1996) at 2-3. Thus,
Opinion DM-408 found instructive a federal court decision that held that 5 U.S.C. § 1502(a)(2)
applies to the solicitation offunds. Id. at 3 (citing Bauers v. Cornett, 865 F.2d 1517, 1520, 1526-27
(8th Cir. 1989)). Based on Bauers, and the similarity between the federal and state statutes, Attorney
General Opinion DM-408 concludes that section 467.025(a)(5) is likewise applicable to the
solicitation of political contributions. See Tex. Att'y Gen. Ope No. DM-408 (1996) at 3.
Weare not aware ofany subsequent judicial opinion casting doubt on the construction ofthe
federal statute in Bauers, or the conclusion in Attorney General Opinion DM-408, that Government
Code section 467.025(a)(5) should be construed as prohibiting the solicitation offunds in particular
circumstances. And we see no basis in the language of the statute to narrow the construction of
"another person" in Government Code section 467.025(a)(5) to exclude solicitations for a candidate
for federal office who is currently a state officeholder. Accordingly, we conclude that Government
Code section 467.025(a)(5) may apply to the solicitation ofcontributions to a candidate for a federal
office, depending on the particular facts, as discussed below.
In your first question you ask separately about a Commission member's participation in
political fundraising, such as by inviting a person to a fundraising event or authorizing the inclusion
ofthe member's name as a sponsor ofa fundraising event. The plain language of Government Code
section 467.025(a)(5) is sufficiently broad to include conduct involving a fundraising event provided
that it constitutes coercion, attempted coercion, a command, or advice to a "person to pay, lend, or
contribute" a thing "ofvalue to another person for political purposes." See TEX. GOV'T CODE ANN.
§ 467.025(a)(5) (Vernon 2004). Moreover, we note that federal regulations promulgated under the
Hatch Act equate certain fundraising activities with solicitation of political contributions. These
regulations refer to participation in fundraising events to illustrate a method of solicitation that is
prohibited under the Hatch Act:
An employee may not knowingly:
2(... continued)
federal funds. See 5 U.S.C. §§ 1501-08 (2000) (state and local officers and employees), 7321-26 (federal employees).
In the portion of the Hatch Act applicable to federal employees, the term "employee" includes an officer. See ide §
2105(a).
Mr. James'A. Cox, Jr. - Page 5 (GA-0647)
(a) Personally solicit, accept or receive a political
contribution from another person [with an exception not
pertinent here];
(b) Personally solicit political contributions in a speech or
keynote address given at a fundraiser;
(c) Allow his or· her official title to be used in connection
with fundraising activities; or
(d) Solicit, accept, or receive uncompensated volunteer
services from an individual who is a subordinate.
Example 1: An employee may not host a fundraiser at his or
her home. However, a spouse who is not covered under this part may
host such a fundraiser and the employee may attend. The employee
may not personally solicit contributions to the fundraiser. Moreover,
the employee may not accept, or receive political contributions [with
limited exceptions not pertinent here].
Example 2: An employee's name may not appear on an
invitation to a fundraiser as a sponsor of the fundraiser, or as a point
of contact for the fundraiser.
5 C.F.R. § 734.303 (2008); see also 5 U.S.C. § 7323(a)(2) (2000) (providing that a federal employee
subject to the Hatch Act may not "knowingly solicit, accept, or receive a political contribution from
any person").
We conclude that Government Code section 467.025(a)(5) is potentially applicable to the
fundraising conduct and the solicitation of campaign contributions described in your questions.
Whether the statute applies in any particular case will depend on the specific facts. And particular
facts and circumstances may raise additional questions oflaw. 3 We note, however, that these mixed
questions of law and fact are for the Governor to determine, at least in the first instance, in the
context of removal from office. See id § 467.026(a)(3) (authorizing the Governor to remove a
commission member for a violation of section 467.025).
3For example, some courts have distinguished between partisan and nonpartisan elections to determine the
applicability of the Hatch Act. See Bauers v. Cornett, 865 F.2d 1517, 1524-25 & n.9 (8th Cir.1989) and cases cited
therein. Other courts have found the distinction between a candidate and a non-candidate election, such as referenda or
amendment elections, to be more helpful than a strict partisan/nonpartisan distinction. See Wachsman v. City ofDallas,
704 F.2d 160, 169-70 (5th Cir. 1983) (upholding city charter prohibiting employees from soliciting candidate
contributions and other activity); Villejo v. City ofSan Antonio, 485 F. Supp. 2d 777, 782 (W.D. Tex. 2007) (noting that
state has less of an interest in regulating its employees' speech with respect to "measure" elections).
Mr. James A. Cox, Jr. - Page 6 (GA-0647)
B. Constitutionality of Section 467.025(a)(5)
Your third question reflects a concern that Government Code section 467.025(a)(5) may
impinge on a Lottery Commission member's First Amendment rights to engage in political activity.
See Request Letter, supra note 1, at 1-2. Because the state statute is modeled on the Hatch Act,
judicial analysis of the constitutionality of the federal act necessarily informs our consideration of
the state statute.
On several occasions the United States Supreme Court has upheld the Hatch Act and state
statutes modeled on the Hatch Act against various constitutional challenges. See, e.g., United States
Civil Servo Comm 'n V. Nat 'I Ass 'n ofLetter C~rriers, 413 U.S. 548, 556, 581 (1973) (holding that
prohibitions in the Hatch Act are neither unconstitutionally vague nor fatally overbroad); Broadrick
V. Oklahoma, 413 U.S. 601,608-16 (1973) (rejecting vagueness and overbreadth challenges to a
state statute modeled on the Hatch Act); United Pub. Workers V. Mitchell, 330 U.S. 75, 100-08
(1947) (rejecting First Amendment and other constitutional challenges to the Hatch Act). The Court
has recognized that the Hatch Act interferes with what otherwise would be a government employee's
constitutional rights, in particular rights of speech and association under the First Amendment. See
Mitchell, 330 U.S. at 94-95. In United States Civil Servo Comm 'n V. Nat 'I Ass 'n ofLetter Carriers,
the Court considered a section of the Hatch Act prohibiting federal employees from "active
participation in political management or political campaigns." Letter Carriers, 413 U.S. at 551,556.
The Court balanced the First Amendment rights of federal employees with the interests of the
government "'as an employer, in promoting the efficiency ofthe public services it performs through
its employees.'" Id. at 564 (quoting Pickering V. Bd. ofEduc., 391 U.S. 563, 568 (1968)). After
reviewing the extensive and long-standing history ofrestrictions on government employees' political
activity, the Court identified several important governmental interests reflected in the Hatch Act: that
executive branch and agency employees should "administer the law in accordance with the will of
Congress, rather than in accordance with their own or the will of a political party" and "enforce the
law and execute the programs of the Government without bias or favoritism for or against any
political party or group or the members thereof." Id. at 564-65. The Court also recognized the
importance ofgoverriment employees avoiding even the appearance of "practicing politicaljustice."
Id. at 565. The Court observed that the Hatch Act reflected a concern born out ofthe New Deal era
"that the rapidly expanding Government work force should not be employed to build a powerful,
invincible, and perhaps corrupt political machine." Id. The Court identified a related concern ofthe
Hatch Act, which was intended
to further serve the goal that employment and advancement in the
Government service not depend on political performance, and at the
same time to make sure that Government employees would be free
from pressure and from express or tacit invitation to vote in a certain
way or perform political chores in order to curry favor with their
superiors rather than to act out their own beliefs.
Id. at 566. The Court concluded that "neither the First Amendment nor any other provision of the
Constitution invalidates a law barring this kind of partisan political conduct by federal employees."
Id. at 556.
Mr. James A. Cox, Jr. - Page 7 (GA-0647)
The same day that it issued the Letter Carriers decision, the Court considered vagueness and
facial overbreadth challenges to an Oklahoma statute modeled on the Hatch Act that forbade
classified employees from engaging in specified political activity including solicitation or receipt of
a "contribution for any political organization, candidacy, or other political purpose." Broadrick, 413
U.S. at 605-06. With respect to the First and Fourteenth Amendments, the Court held that "there
is no question that [the Oklahoma statute] is valid at least insofar as it forbids classified employees
from: soliciting contributions for partisan candidates, political parties, or other partisan political
purposes." Id. at 616. The Court further concluded that the state statute was not on its face
unconstitutionally vague such that "men of common intelligence must necessarily guess at its
meaning." Id. at 607 (quoting Connallyv. Gen. Constr. Co., 269 U.S. 385,391 (1926)). The Court
further determined that the state statute was not on its face unconstitutionally overbroad:
[P]articularly where conduct and not merely speech is involved, we
believe that the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly
legitimate sweep. It is our view that [the state statute, including its
prohibition of employee solicitation of campaign contributions,] is
not substantially overbroad and that whatever overbreadth may exist
should be cured through case-by-case analysis of the fact situations
to which its sanctions, assertedly, may not be applied.
Broadrick, 413 U.S. at 615-16. 4
Based on Letter Carriers and Broadrick, this office in Attorney General Opinion DM-408
concluded that a court would not likely determine that Government Code section 467.025(a)(5) is
unconstitutional on its face, and that any vagueness or overbreadth challenges must be addressed
case by case. See Tex. Att'y Gen. Ope No. DM-408 (1996) at 5-6. You have asked that we
reconsider that conclusion "in light of subsequent developments in case law regarding political
speech." Request Letter, supra note 1,at 2. You do not identify which developments you mean, and
we do not venture to survey the panoply of jurisprudence relating to political speech. However,
recent decisions concerning the political speech of judicial candidates have some bearing on your
questions.
In Republican Party ofMinnesota v. White, the United States Supreme Court struck down
a state judicial canon barring state judicialcandidates from announcing their views on disputed legal
or political issues as a violation of the candidate's First Amendment rights. 536 U.S. 765, 788
(2002). As the canon's restriction concerned core political speech, the court determined that the
4See also United States v. Nat'l Treasury Employees Union, 513 U.S. 454 (1995). In National Treasury
Employees Union, the Supreme Court held that a statutory limitation on receipt ofhonoraria for public speaking on topics
unrelated to government employment was unconstitutional as applied to federal employees holding positions of GS-15
level and below. Id. at 478-80. The Court declined to rule on the facial validity of the honoraria ban, however, in part
because "the Government conceivably might advance a differentjustification for an honoraria ban limited to more senior
officials." Id at 478.
Mr. James A. Cox, Jr. - Page 8 (GA-0647)
proper test was strict scrutiny, requiring the state to prove that the restriction is narrowly tailored to
serve a compelling state interest. Id. at 774-75. On remand, the court of appeals determined that
another provision of the canon, which prohibited judicial candidates from personally soliciting
campaign contributions, would also be subject to strict scrutiny. Republican Party ofMinn. v. White,
416 F.3d 738,764 (8th cir. 2005), cert. denied sub nom Dimickv. Republican Party ofMinn. , 546
U.S. 1157 (2006). The court of appeals held that the prohibition was not narrowly tailored to the
state's asserted interest in an impartial judiciary. Id. at 765-66.
Neither the Supreme Court opinion nor the court of appeals opinion in White mentions the
,Hatch Act, but the opinions raise at least a question about the proper standard for reviewing First
Amendment challenges by government officers and employees. See In re Hecht, 213 S.W.3d 547,
592 (Tex. Spec. Ct. Rev. 2006) (McClure, J., concurring) (noting that the standard for reviewing the
political speech of judges may have changed in light of White). However, the Supreme Court in
White expressly limited its decision to the state's regulation of a person's speech as a judicial
candidate, stating that the issue of whether the Pickering rationale would apply to a restriction on
a sitting judge's speech had not been raised. White, 536 U.S. at 796. This fact has led one court to
opine that the holding in White may be limited to candidate speech. In re Vincent, 172 P.3d 605,
606-07 (N.M. 2007); see also Jenevein v. Willing, 493 F.3d 551, 557 (5th Cir. 2007) (rejecting
Pickering balancing in favor of strict scrutiny to review censure ofjudge because, while a judge is
an employee ofthe state, "[o]ur 'employee' is an elected official, about whom the public is obliged
to inform itself').
Specifically in a Hatch Act case, a federal court has applied the traditional Pickering
balancing test, rejecting strict scrutiny because "[n]othing in White . .. suggests that a statute, such
as the Hatch Act, which is not targeted at restricting protected speech is subject to a heightened
degree of scrutiny." McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320,1332 n.7 (Fed. Cir.), cert.
denied, 546 U.S. 873 (2005). Another court has applied strict scrutiny to hold unconstitutional a
city's restrictions on government employees' political speech concerning a referendum "measure,"
but in doing so suggested that Hatch Act restrictions with respect to candidate elections would
survive strict scrutiny analysis because the government's interests in that instance are compelling.
See Villejo v. City ofSan Antonio, 485 F. Supp. 2d 777,781-86 (W.D. Tex. 2007). But, regardless
of the standard utilized, no decision subsequent to White of which we are aware has called into
question the facial constitutionality of the Hatch Act or similar state statutes. 5
As Government Code section 467.025(a) is modeled on the Hatch Act, a court would likely
conclude that the state statute is supported by many of the important governmental interests
identified in Letter Carriers and Broadrick. And the provisions in chapter 467 described above,
vesting broad authority in the Commission members to ensure the fairness and integrity of a highly
regulated industry, indicate a heightened governmental interest in maintaining public confidence in
5After White, the Supreme Court reiterated the proposition in Broadrick, that a statute should not be stricken
as facially overbroad unless its application to protected speech is '''substantial,' not only in an absolute sense, but also
relative to the scope ofthe law's plainly legitimate applications." Virginia v. Hicks, 539 U.S. 113, 119-20 (2003); see
also Broadrick, 413 U.S. at 615-17.
Mr. James A. Cox, Jr. - Page 9 (GA-0647)
the Commission, an interest that is furthered by restricting Commission members' political activity.
See TEX. GOV'T CODE ANN. § 467.101 (Vernon 2004) (granting the Commission "broad authority"
and requiring it to exercise "strict control and close supervision over all activities" subject to its
jurisdiction); see also ide § 466.014(a) (requiring the Commission to exercise its authority "to
promote and ensure integrity, security, honesty, and fairness in the operation and administration of
the lottery"); TEX. OCC. CODE ANN. § 2001.051(b) (Vernon 2004) (requiring the Commission to
exercise its authority "over all bingo conducted in this state so that bingo is fairly conducted and the
proceeds derived from bingo are used for an authorized purpose").6 We adhere to the view this
office expressed in Attorney General Opinion DM-408, that a court would not likely conclude that
Government Code section 467.025(a)(5) is facially unconstitutional, although a court could possibly
conclude that the statute is unconstitutional as applied in a particular case. See Tex. Att'yGen. Opt
No. DM-408 (1996) at 5-6.
6We note that other jurisdictions have imposed virtually identical limitations on high~level officials regulating
aspects of the gambling industry. See, e.g., LA. REv. STAT. ANN. §§ 27:226(C)(3)(f) (2001) (providing that a member
or employee of a Louisiana Economic Development and Gaming Corporation may not "directly or indirectly coerce,
attempt to coerce, command, or advise a person to pay, lend, or contribute anything of value to a party, a committee, an
organization, an agency, or a person for political purposes"), 27: 13(C)(5) (providing that "no [member ofthe Louisiana
Gaming Control Board] shall attempt to affect the result ofan election or a nomination for an office; directly or indirectly
coerce, attempt to coerce, command, or advise a person to pay, lend, or contribute any thing ofvalue to a political party,
a committee, an organization, an agency, or a person for political purposes"); N.J. STAT. ANN. § 5: 12-59(h)(2) (1996)
(providing that "[n]o member of the [New Jersey Casino Control Commission], employee of the commission, or
employee or agent of the division shall: ... (2) Directly or indirectly coerce, attempt to coerce, command or advise any
person to pay, lend or contribute anything of value to a party, committee, organization, agency or person for political
purposes"); V.1. CODE ANN. tit. 32, § 412(h)(2) (providing that no member of the Virgin Islands Casino Control
Commission shall: "[d]irectly or indirectly coerce, attempt to coerce, command or advise any person to pay, lend or
contribute anything of value to a party, committee, organization, agency or person for political purposes").
Mr. James A. Cox, Jr. - Page 10 (GA-0647)
SUMMARY
Depending on the particular facts, Government Code section
467.025(a)(5) could apply to prohi~it a member of the Lottery
Commission from inviting a person to a political fundraising event,
authorizing the inclusion of the member's name as a sponsor or host
of a political fundraising event, or soliciting a contribution to a
candidate for a federal office. The applicability ofthe statute does not
depend on the current status of the candidate as a state officeholder.
A court would not likely find section 467.025(a)(5)
unconstitutional on its face, although a court could possibly conclude
that it is unconstitutional as applied in particular circumstances.
Very truly yours,
EG ABBOTT
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee