                               April 16, 1975


The Honorable William T. “Bill” Moore           Opinion No. H-    583
Chairman, State Affairs Committee
The Senate of the State of Texas                Re:   Interpretation of the
Austin. Texas 78711                                   Lobby Control Act

Dear Senator Moore:

    You have asked our opinion on 45 questions involving the Lobby Control
Act,  article 6252-9~.   Your questions are too numerous to list separately,
but many of them are arranged in groups dealing with single subjects.     In
the interest of brevity, we have consolidated and summarized your questions
wherever possible.

    Your first group of questions involves the circumstances under which
an individual who is employed by another and who communicates with a
public official to influence legislation is required to register under section 3
of the Act. Section 3 provides:

           (a) The following persons must register,with     the
       secretary as provided in Section 5 of this Act:

           (1) a person who makes a total expenditure in
       excess of $200 in a calendarquarter,    not including
       his own travel, food, or lodging expenses, or his
       own membership dues, for communicating directly
       with one or more members of the legislative or execu-
       tive branch to influence legislation: and

            (2) a person who receives compensation or reim-
       bursement from another to communicate directly with
       a member of the legislative or executive branch to
       influence legislation.




                                   p. 2595
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             The Honorable William   T.   “Bill”   Moore,    page 2   (H-563)




                         (b) A person. other than a member of the judicial,
                    legislative, or executive branch, who, as part of hi6
                    regular employment, communicate6 directly with a
                    member of the legislative or executive branch to
                    influence legislation,  whether or not any compen-
    _.              eation in addition to the salary for that regular
                    employment is received for the communication, must
                    register under Subsection (a), Paragraph (2), of thie
                     section.

                There are five questions in your first group but they are effectively
             rummarized by your quertion l(e) which i6:

                         What is the test for determining whether a
                    6alaried individual communicate6 directly with a
                    member of the legislative or executive branch to
                    influence legislation “as a part of his regular
                    employment, ” as the quoted phrase ie used in
                    Section 3(b)?

                  It i6 our view that a person communicates with a public official or
             candidate within the acope of his regular employment when the ccrmmtnication
             i6 on behalf of and at the exprers or implied direction of hi6 employer or
             is ratified by his employer.    We do not believe that it io necessary that a
             specific portion of hi6 salary be allocable to hi6 role of communicating with
             members of the legislative and executive branches.      It is sufficient that he
             be employed andthat he communicate with public officials or candidates to
             influence legislation a6 an incident of his employment.     Rrrthermore,    an
             individual who receives compensation or reimbursement from another person
             to communicate directly with a member of the legislative or executive branch
             to influence legislation must register pursuant to section 3(a)(2).     Whether
             he receives a salary is not determinative.

                 Your second series of question6 concerns registration by “a group of
             person6 who are voluntarily acting in concert.”     Such groups are “persone”
             required to register under section 3. See section 2(l).     We believe that the
             test for whether a group is within this definition is that contained in Rock
             Creek Oil v. Moore, 41 S. W. 2d 501 (Tex. Civ. App. --Amarillo      1931); rev’d.
             on other grounds, 59 S. W. 2d 815 (Tex. Comm. 1933).




                                                   p. 2596
The Honorable William    T.   “Bill” Moore,     page 3   (H- 583)




       [Cbcerted   action ia: ‘Action that has been planned,
        arranged, adjuclted, agreed upon and 6ettled between
        parties acting together in pursuance of some design
        or in accordance with some scheme.’ 41 S. W. 2d at 504.             -

Thus, when persons are acting pursuant to agreement and in pursuit of some
common goal they would constitute “a group ‘of persons who are voluntarily
acting in concert. I’ A group may designate any member or employee to
actually prepare,   sign and file the report, Attorney General Opinion H-311
(1974).

    Your third series of questions involves communications between an
individual and a public official when the communication i6 initiated by the
public official.  You offer example6 of a legislator placing a telephone call
to a citizen or sending the citizen a questionnaire to ascertatn. hi6 position
on proposed legislation.    You ask if this type. contact constitutes a direct
communication to inQuence legislation for purposes of registration under
the Act.   As a practical matter, the only instance in which a question might
arise is when the citizen is contacted in the course of hi6 employment.        You
also ask whether registration is requi’red o.f an individual who is~requested
to appear before a legislative committee and receives reimbursement from
the State for hi6 expenses while at the same time being compensated by his’
employer.

    We do not believe that the Lobby Control Act was intended to require
regietration by a person merely because in the course of his employment,
he responded to a legislator’s telephone call or letter or appeared before a
committee at the committee’6 specific request.      However, neither do we
believe that the Act can be construed to permit a subterfuge by which persons
can avoid registration by making certain that the communication was initi-
ated by the public official.  Persons are required to register under the Act
when,they communicate directly with a member of the legislative or execu-
tive branch for the purpose of influencing legislation and (1) spend more than
$200 in a calendar quarter for that purpose, (2) receive compensation or
reimbursement from another for those activities.      or (3) do so as part of their
regular employment.      The Act is designed to require registration by those
persons who spend substantial sums of money for lobbying activities and those
who ark .paId by other persons to represent their interests before the legis-
lative or executive branch of the government,     Persons who lobby on behalf of



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                                    p.   2597
The Honorable William    T.   “Bill”   Moore,    page 4   (H-583)




their employer in the course of their r.egular employment fall into thi6
latter group; however, we do not believe that perron who merely respond
to a legislator’s inquiry necessarily do 50 a6 part of their regular employ-
ment. In most cases re6ponding to the inquiry by the public official will
not be part of the person’5 regular employment.     On the contrary, it will
be an unusual and unanticipated duty. Some persons, however, may be
expressly or impliedly designated by their employer to handle comrnunica-
tions with public officials and such dutieo will be a usual part of their
employment,      These persons normally would be within the ambit of the
 registration provisions of the Act.

     You aleo ask whether a person who communicate5 with a public official
for the purpose of providing factual information which may have an effect on
legislation or. for the purpose of delivering a campaign contribution to the
official would be required to register under the Act.    The necessity to register
would depend on the occurrence of a direct communication with the public
official to influence legislation. In the cases you cite the answer generally
would depend on a factual’determin6,tion in the particular instance of whether
the communication was made to influence ,legilrlation.

    You next ask if section   3(a)(2) requires  registration of a person who
receive6 reimbureement from another to communicate directly with a public
official to influence legislation if the individual does not ,make a total expendi-
ture in exceso of $200 in a calendar quarter.      An individual who i6 compen-
6ated or reimbursed by another person to communicate with members of the
legislative or executive branch to influence legirlation is required to register
under section 3(a)(2).    Unlike rection 3(a)(l) this provision include6 no mini-
mum expenditure which triggers the registration requirement.

    You also ask what expenditure6 are to be included under section 3(a)(l)
in determining whether a person has 6pent in excess of $200 in a calendar
quarter.   That section refer5 to “a total expenditure in excess of $200 in
a calendar quarter, not including hi6 own travel, food, or lodging expenses,
or his own membership dues, for communicating directly with one or more
members of the legislative or executive branch to influence legislation.”    We
believe this would include any expenditure, other than those specifically
excepted, which are reasonably related to communication to influence legis-
lation. Whether a specific expenditure is made for that purpose depends on
the facts of the individual case, but for an example of some of the types of
expenses which might qualify see section 6(b)(l).




                                       p. 2598
The Honorable William    T;   “Bill”   Moore,    page 5   (H-583)




      You next ark if rection 3(b) exempt6 a member of the judicial,
legi6lative or executive branch from the operation of section 3(a)(l)
55 well as from the operat ion of 6ection 3(a)(2). Section 3(b)(l) require5
 regi6tration of perron 6pending a certain amount of money to influence
legi6lation.    Section 3(a)(2) requires  regi6tration of per6ons who lobby oh
behalf of another for compensation or reimbursement.           Section 3(b) pro-
 vider that a perron other than a member of the legislative,      executive, or
judicial branch who, a6 a part of hi6 regular employment, directly com-
municates with a public official to influence legislation is required to
register under section 3(a)(2).      Due to it6 specific reference to section
3(a)(2) ad the explanatory nature of it6 contents, in our opinion section            ,
3(b) wa6 intended to modi& only section 3(a)(2) and doe6 not apply to
 section 3(a)(l).   However, the responclibilities of members of the legis-
lative and executive departments may necessarily entail the expenditure
of money to communicate with other members of these departments.              Thi6
ie particularly true iit regard to members of the Legislature.        In addition,
the policy expreosed in 6ection 1 concern6 communications by non-member5
with members of the executive and legi6lative departments.          Consequently,
we feel that members of the legislative and executive departments acting
in the course of their official duties are impliedly exempted from the
 requirements,of    section 3(a)(l), just as they are expressly exempted from
 3(a)(2).  And see Attorney General Opinion H-297 (1974).

     You next ask if an individual who has regi6tered because of hi6 attempt
to influence legislation ir required to register again when he communicate5
with a public offtcial in an attempt to influence legislation on behalf of
another person,     You indicate that you are specifically concerned with the
situation in which registration is clearly required for the first contact but
where the second contact standng alone would not have required registration.

    It should be noted that thi6 particular rituation will rarely, if ever,
occur.   If a perron is lobbying on behalf of another and is reimbursed for
that service, he i6 required to register regardlea    of the amount of reim-
bureement or compensation he recsives unless he fall5 in the very narrow
exception of section 3(b), NOnethele66, the regirtration requirement i6 a
personal one. Once a person is required to register he mu6t furni6h
certain data outlined in 6ection 5 indicating, inter alta, the name and address
of each person by whom he is reimbureed, retained or employed to com-
municate directly with public official6 to influence legi6lation.   He also is
required to update the information periodically.




                                       p. 2599
     The Honorable William    T. “Bill”   Moore,   page 6   (H-583)




         You next call our attention to section 5 of the Act which requires that
     a person regieter within five day6 after the first undertaking requiring
     registration.   You ask when the first’undertaking requiring registration
     OCCUr6. It is ourview that a person is not required to register until he
     satisfies each element requiring him to register under any particular ’
     6Ub6eCtiOn. For purposes of section 3(a)(l) he would be required to’register
     within five days after he had directly communicated with a public official
     and had spent in exce6s of $200 for that purpose.     For purposes of section
     3(a)(2) and 3(b) he would be required to register a6 soon as he had directly
     communicated with a public offtcial either on behalf of another who is
     reimbursing-or compensating him or as a part of hi6 regular employment.

         Section 5(b)(.3) requires the filing of the “name and.addre68 of each
     person who made a contribution or paid a memberehip fee ia excess of
     $500 during the.preciding 12 month period to the registrant or to the p%rson
     by whom the regirtrant it3. reimbureed, retained, or employed. . . . ”
     Section 5(d) require6 that a supplemental regirrtration be filed indicating any
     change in the registration within ten daya after the dste of the change. You
.    ask if, afteran initil registration,’ any contributions or membership fee in
     exc.ess of $500 must be reported withid.ten days of receipt.    It is our opinion
     that the statute .clearly require5 an affirmative  ‘answer.                .
                                                                  _’
         Section 5(b)(4)(A) requires that a registrant list the name of the person
     who ha6 retained or employed him. YoU ask whom a salaried associate in
     a law firm 6hoUld.li6t a6 the person who retains or employ6 him.

           An associate generally is employed by the firm, and the client’e’contract
      for.services to be rendered is with the firm r&her than the as6,ociate.. Never-
      theless, we’think the..Act contemplates that individuals requi.red to register
      liet the per6ons whom they are representing.     Thus, the associate in a law
      firm, a6 well96 it6 partne.r6, should li6t tha,fir?U’S Client as the person
      who is employing; reimbursing or retaining him. Additionally,’ the attorney
      who i6 acting on,behalf.ef his law firm ‘may need to-list the name .of the firm
    ’ a6 well. Of. course, compliance will be as&ad      when,the names of both
      the firm and. the client are.listed. ...

          Section 5(c) require6 that thesinformation. filed by a ‘registrant who performs
      hi6 activities on behalf of a group other than a corporation include a description
     .of the method6 by which the “registrant” develop6 &nd makes decisions on
      policy.   The actual registrant is the lobbyist and not necessarily the client who’




                                      .: p. 2600
The Honorable William    T. “BillV~ Moore,    page 7   (H-583)




emp!Oy6 him! Attorney General Opinion H-191 (1973). You suggest that perhape
only the fact that the lobbyi6t : registrant follows the policy set by hi6 client
!s @l that need be reported.    We believe the Legislature intended that the deci-
piontmaking practice6 of the employer be described for otherwiee there would
be no full descr/ption of the method by which policy decision6 are made.

    You finally ask several question6 about section 6 which provides:

           Sec. 6, (a) Every person registered under Section 5
       of this Act shall file with the secretary a report concerning
       the activities set out in Subsection (b) of this section. The
       report mu& be filed:

           (1) between the 1st and 10th day of each month sub-
       6equent
        . . . .., $0 a month in which the legislature is in session
       coygring the actje$je6 during the previous month; and

           (2) between the 1st and 10th day of each month
       immediately subsequent to the last month in a calendar
       qerter  covering the activities during the previous quarter.

           (b) The report shall be written,     verified,   and contain the
       fopqwing information:

            (1) the total expendituresmade   by the registrant for
       directly communicating with a member of the legislative or
       executive branch to influence legislation,  including expendi-
       tures .made by other6 on behalf of the registrant for thoee
       direct communications if the expenditure6 were made with
       hi6.expresr or implied coneent or were ratified by him.
       Such report ehall include a breakdown of expenditures into
       the following categories:

               (A)   postage and telegraph;
               (B)   publication and advertising;
               (C)   travel and fee6;
               (D)   entertainment;
               (E)   gifts, loanr, and political contributions;   and
               (F)   other expenditure6;




                                    p. 26dl
The Honorable William    T. “Bill” Moore,    page 8   (H-583)




           (2) a list of legislation supported or opposed by the
       registrant, by any person retained or employed by the
       registrant to appear on his behalf, or by any other
       person appearing on his behalf, together with a statement
       of the registrant’s position for or against .such legislation.

           (c) Each person who made expenditures,on behalf of
       a registrant that are required to be reported by Subsection
       (b) of this section or who has other information required to
       be reported by the registrant under this section or Section 5
       shall provide a full, verified account of his expenditures to
       the registrant at least seven day6 before the regietrant’s
       report is due to be filed.
                                    ,.        .,     .
     Your first question in this series asks if a registrant is required to make
both quarterly and monthly reports during a legislative session.        Section
6(a)(2) requires that a registrant make reports each quartei and section’6(a)(l)
requires monthly reports during a legislative session.       There is nothing in
the Act to-suggest that the ffing.of monthly report6 obviate6 the necessity
of filing the quarterly report6 which cover the ‘same period.       Indeed the lang-    I
uage of the statute indicates that the reports are to be filed monthly during the
legislative session -and to be filed each quarter>
                                                                 :*
     Your next question asks if an expenditure made for directly communicating
with a member of ,the Legislature must be reported even though no legislation
is mentioned or. discussed.    The statutory test a6 to whether an expenditure         ”
must be reported is whether it was made for direct communication to influence          i
legislation.   Although most communications which are designedto influence
legislation will include ,discussion of a particular bill, it is conceivable that
some communications which are designed to influence legislation will not               ~,,
directly involve a particular bill. In any event, if the communication is for
that purpose it meets the statutory test and should be reported.

    You ask several quest*      concerning’how and whether a publication expense’
is required to be reported.    You pose different situations in which a publications
is distributed to public officials as wellas to private citizens.  As in the case
of all expenditures, costs of publication and advertising must be reported if
they are for directly communicating with a public official for the purpose of
influencing legislation.  Direct communication is defined in section 2(5) as




                                   p. 2602
The Honorable William   ‘I.   “Bill”   Moore,    page 9   (H-583)




“contact in person or by telephone, telegraph, or letter.”     Thus, it is
probable that an advertisement placed in a newspaper of general circulation
would not constitute an expenditure for directly communicating with an
official 50 long as no special action was taken to call the advertisement to
the official’s attention.  Whether a registrant should report the full or only
a pro rata cost of adverti6ements   or publications directed toward both
private citizens and public officals depends on the facts of each case.    Of
course, report of the full cost would always be in compliance with the statute.
An advertising    .campaign designed solely to encourage private citizens to
contact legislators is not required to be reported. Attorney General Opinion
H-18(1973).

     You next ask several questions concerning the reporting of entertainment,
travel, fees, gifts, loans, political contributions and other expenditures.
You present several specific examples and ask if reporting is required in
each instance.   As indicated above, whether any particular expenditure is
required to be reported depends on the facts surrounding that expenditure.
If it is made for direct communication with a member of the legislative or
executive branch for the purpose of influencing legislation then it must be
reported.   If, as a factual matter, the expenditure is not made for that
purpose, ‘then it need not be reported.

    You finally ask if the requirement that “other expenditures” be reported
is so vague as to cause the act to be unconstitutional.  As we have indicated,
the expenditure6 which must be reported are those incurred when a registrant
directly communicates with members of the legislative or executive depart-
ments for the purpose of influencing legislation.   This standard io virtually
identical to the one upheld against a similar contention in United States v.
Harrisa,  347 U.S. 612 (1953). and given the holding of that case we believe
there is no constitutional problem.   See also Attorney General Opinion
H-18 (1973).

                               SUMMARY

             Expenditure6 required to be reported under
        article 6252-9~.   V. T. C. S., are those which are
        made for directly communicating with a member
        of the legislative or executive branch for the purpose
        of influencing legislation.




                                       p. 2603
The Honorable William    ‘I. “Bill”   Moore,    page 10    (H- 583)




           Persons who merely respond to a legisfator’s
       inquiries are not required to register unlces they
       do so as part of their usual course of employment.
       Members of the legislative,  executive and judicial
       branches who contact legislators as part of their
       governmental duties are not required to register.

                                         Very truly yours,




                                         Attorney     General of Texas

APPROVED:




DAVID M. KENDALL,        First Assistant



                                                  .
C. ROBERT HEATH,        Chairman
Opinion Committee




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