                             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.




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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).




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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




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