       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-02-00447-CV



                     Veterans of Foreign Wars, Texas Division, Appellant

                                                 v.

                      Greg Abbott, Attorney General of Texas,1 Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
          NO. GN103799, HONORABLE ROSE SPECTOR, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This appeal relates to video-game machines offering the chance to win prizes, known

as “eight-liners.” Several member posts of appellant Veterans of Foreign Wars, Texas Division,

(“VFW”) have installed eight-liners for fund raising purposes. After appellee the Attorney General

of Texas made statements explaining his interpretation of the statute governing eight-liners, VFW

sued, seeking a declaratory judgment and injunction. The Attorney General filed a plea to the

jurisdiction, and the trial court granted the plea and dismissed VFW’s suit. On appeal VFW contends

that the trial court erred in dismissing the suit because its petition did not contain an incurable

jurisdictional defect and alleged sufficient facts to invoke the trial court’s jurisdiction. VFW also




        1
         This suit was filed against former Attorney General John Cornyn. We have substituted the
current Attorney General, Greg Abbott, as a party. See Tex. R. App. P. 7.2(a).
contends that the trial court erred in failing to hold an evidentiary hearing before dismissing the suit.

We will affirm the trial court’s dismissal of VFW’s suit.



                                             Background

               In its petition, VFW alleged that the Attorney General’s statement of the law related

to eight-liners was incorrect and threatened VFW’s legal rights and privileges; the Attorney General

had overstepped his statutory authority by giving legal advice to persons such as local police

departments; VFW as a taxpayer sought to enjoin the further illegal expenditure of public funds; and

the Attorney General had promulgated a rule without complying with the government code’s

rulemaking procedures and thus the rule was invalid. VFW sought to have the Attorney General

enjoined from giving legal advice about the legality of eight-liners to anyone not specifically

authorized to receive such advice and from expending further public funds on any such activity.

VFW also asked the trial court to issue a declaratory judgment (1) stating that the government code

prohibited the Attorney General from giving legal advice on criminal law matters directly to police

departments or police officers, (2) stating that the Attorney General’s interpretation of the law was

incorrect, and (3) declaring and defining section 47.01(4)(B) of the penal code, the statute that relates

to eight-liners. See Tex. Pen. Code Ann. § 47.01 (West 2003).

               The Attorney General filed a plea to the jurisdiction asserting sovereign immunity

against claims made against him in his official capacity and that (1) VFW was not a taxpayer and thus

was not entitled to injunctive relief, (2) the activities VFW sought to enjoin were specifically

authorized by statute and cannot be enjoined, (3) no justiciable controversy existed between the



                                                   2
parties, (4) VFW did not have property or personal rights at issue because it did not own eight-liners

and had not been threatened with legal action, and (5) an injunction against future spoken or written

words would be an impermissible restraint on speech.


                                          Standard of Review

                A plea to the jurisdiction seeks to dismiss a cause of action without regard to the merits

of the plaintiff’s claims. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). In

reviewing a dismissal pursuant to a plea to the jurisdiction, we liberally construe the pleadings in

favor of the plaintiff and look to the plaintiff’s intent. City of San Angelo v. Smith, 69 S.W.3d 303,

307 (Tex. App.—Austin 2002, pet. denied); see Texas Ass’n of Bus. v. Texas Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993). To prevail on a plea to the jurisdiction, a defendant must show that,

even if all the factual allegations in the plaintiff’s pleadings are true, there is a defect apparent on the

face of the pleadings, such that it would be impossible to cure the defect so as to confer jurisdiction

on the trial court. Smith, 69 S.W.3d at 306; Texas Dep’t of Transp. v. City of Sunset Valley, 8 S.W.3d

727, 729 (Tex. App.—Austin 1999, no pet.). A trial court should hear evidence as necessary to

determine the jurisdictional issues, but plaintiffs need not preview their case on the merits simply to

establish jurisdiction. Blue, 34 S.W.3d at 554-55.


                                               Discussion

                The Attorney General is a constitutionally created office with the responsibility to

“represent the State in all suits and pleas in the Supreme Court of the State in which the State may

be a party,” and to “give legal advice in writing to the Governor and other executive officers, when



                                                     3
requested by them, and perform such other duties as may be required by law.” Tex. Const. art. IV,

§ 22. The legislature has further defined the Attorney General’s duties and powers to include, among

others: the authority to employ peace officers as investigators to assist in carrying out the Attorney

General’s duties “relating to prosecution assistance and crime prevention,” Tex. Gov’t Code Ann.

§ 402.009 (West Supp. 2003); the prosecution and defense of “all actions in which the state is

interested before the supreme court and courts of appeals,” id. § 402.021 (West 1998); and the

provision of requested assistance to district or county attorneys in criminal prosecutions, id.

§ 402.028(a) (West 1998). The legislature has also enacted statutes governing written opinions issued

upon request to various state officials and employees. See id. §§ 402.041-.045 (West 1998).

               VFW attacks the correctness of the Attorney General’s legal determinations related

to eight-liners and contends that he acted illegally in giving legal advice to law enforcement agencies

and officers and that his opinions amounted to illegally promulgated rules.

               Whether the Attorney General’s legal interpretation related to eight-liners is correct

is not a proper issue for this suit for declaratory judgment.2 A civil court may not issue “naked

declarations of ‘rights, status or other legal relationships arising under a penal statute.’” State v.

Morales, 869 S.W.2d 941, 947 (Tex. 1994) (quoting Malone v. City of Houston, 278 S.W.2d 204, 206

(Tex. Civ. App.—Galveston 1955, writ ref’d n.r.e.)). A civil court may declare a penal statute

unconstitutional and enjoin its enforcement only under very limited circumstances. Id. at 942.

VFW’s issues related to the Attorney General’s interpretation of the law seek the very kind of


        2
          In a letter brief, the Attorney General noted a recent supreme court case on the subject of
eight-liners. See Hardy v. State, 46 Tex. Sup. Ct. J. 555, 560-61, 2003 Tex. LEXIS 40, at *22-25
(Apr. 3, 2003).

                                                  4
“naked declaration” disallowed by the supreme court. The trial court did not err in dismissing VFW’s

suit as far as it requested a declaration of the meaning of section 47.01 of the penal code.

               As for VFW’s contention that the Attorney General acted illegally in consulting and

sharing documents with law enforcement authorities, we disagree that such actions amounted to the

giving of “legal advice” or opinions, as defined by statute. VFW did not attach to its response to the

Attorney General’s plea the document of which it complains, but at the hearing on the plea and on

appeal, VFW generally described a manual or booklet interpreting the penal code related to eight-

liners. VFW also complains of the Attorney General’s “Gambling Prosecution Unit,” which gives

legal advice to law enforcement authorities.

               The Attorney General argues, and we agree, that the sharing of his interpretation of

the law does not constitute “legal advice” as used in the statute. “Legal advice” is generally

considered advice given by a lawyer to a client in the course of an attorney-client relationship;

communications associated with the giving of such advice are confidential and protected from

disclosure. See Dewitt & Rearick, Inc. v. Ferguson, 699 S.W.2d 692, 693 (Tex. App.—El Paso 1985,

no writ) (quoting Ray, 1 Texas Law of Evidence § 421 (3d ed. 1980)) (“Where legal advice of any

kind is sought from a professional legal adviser in his capacity as such, the communications relating

to that purpose, made in confidence by the client, are at his instance permanently protected from

disclosure by himself or by the legal adviser . . . .”); Tex. R. Evid. 503 (communications between

lawyer and client are confidential); Black’s Law Dictionary 55 (7th ed. 1999) (“advice” defined as

“[g]uidance offered by one person, esp. a lawyer, to another”; “advice of counsel” defined as

“guidance given by lawyers to their clients”). VFW does not allege that the Attorney General was



                                                  5
acting as legal counselor to the law enforcement agencies with which he shared his interpretations.

We do not believe that the Attorney General, the State’s chief legal representative, is so constrained

in the discussion of his legal interpretations as to only be permitted to share such interpretations in

the context of an attorney-client relationship.

               VFW attempts to characterize the Attorney General’s legal interpretations of the law

related to eight-liners and the means by which he shares those interpretations as opinions governed

by the government code. The government code’s provisions govern formal, written opinions issued

by the Attorney General upon request to particular state officials. See Tex. Gov’t Code Ann.

§§ 402.041-.045. They do not apply to every policy determination developed by the Attorney General

in the course of his duties as chief attorney for the State. To so hold would handicap the Attorney

General in the performance of his duties, barring him from developing and pursuing legal

interpretations in the majority of situations in which they could be helpful. Such a handicap could

be stretched to bar him from giving speeches and perhaps even from sharing legal conclusions with

his assistant attorneys general. The legal interpretations and materials of which VFW complains are

not formal, written opinions governed by the government code’s opinion provisions, but are actions

within the Attorney General’s broad constitutional powers and not subject to a suit for declaratory and

injunctive relief. VFW may not sustain a declaratory judgment action merely because it dislikes the

way the Attorney General runs his office or one of his policy determinations.

               VFW also contends that the Attorney General’s legal determinations amount to

illegally promulgated “rules.” We disagree. Not every opinion expressed by a State official or agency

is a “rule” requiring rule-making procedures and authority. See Texas Educ. Agency v. Leeper, 893



                                                  6
S.W.2d 432, 443 (Tex. 1994); Brinkley v. Texas Lottery Comm’n, 986 S.W.2d 764, 769 (Tex.

App.—Austin 1999, no pet.). Letters, guidelines, and reports can contain statements or interpretations

of law, policy, or procedure, but are not necessarily considered rules. Brinkley, 986 S.W.2d at 769

(letters from Commission to bingo parlors containing “advisory guidelines” related to eight-liners

were not rules); compare Leeper, 893 S.W.2d at 443 (agency resolution recommending guidelines

to school districts were not rules), with Texas Alcoholic Beverage Comm’n v. Amusement & Music

Operators of Tex., Inc., 997 S.W.2d 651, 660 (Tex. App.—Austin 1999, pet. dism’d w.o.j.)

(“AMOT”) (letters “imposing binding instructions” on agency’s law enforcement agents on meaning

of statute were rules). The materials of which VFW complains consist of manuals or booklets

prepared by the Attorney General that contain his legal determinations related to eight-liners; they are

distributed to law enforcement authorities and others as part of educational programs or legal

education courses. VFW has not alleged that they are directives issued to law enforcement agents

under the Attorney General’s control. These materials more closely resemble the letters sent in

Brinkley than the directives discussed in AMOT. The materials and statements of interpretation by

the Attorney General are not rules requiring rule-making authority and procedures. The trial court

properly dismissed VFW’s complaints of improper rule-making.

               Finally, VFW contends that the trial court erred in failing to conduct an evidentiary

hearing on the Attorney General’s plea, instead dismissing the suit after argument and a review of the

pleadings. See Blue, 34 S.W.3d at 555 (trial court should consider evidence when necessary to

determine whether court lacks jurisdiction). First, we note that Blue does not require an evidentiary

hearing, but instead directs trial courts, when necessary, to consider evidence produced by the parties;



                                                   7
VFW did not attach evidence to its response to the Attorney General’s plea.3 See id. Second, we do

not believe an evidentiary hearing would have changed the trial court’s conclusions. As discussed

above, VFW’s pleadings attack actions that are constitutionally and statutorily authorized and the

materials complained of are not rules or opinions. VFW states that it would have shown that the

Attorney General has a unit devoted to gambling prosecutions and gambling machines and would

have presented evidence about the manual in question. However, such evidence would not change

the fact that, as a matter of law, the Attorney General is not acting outside the scope of his legal

authority. The trial court did not err in refusing to conduct an evidentiary hearing.


                                             Conclusion

               In summary, how the Attorney General makes his legal determinations and runs his

office are not subject to declaratory and injunctive relief. As a constitutionally elected official, the

Attorney General enjoys broad powers and is entrusted to develop legal interpretations and represent

the State. Whether his interpretation of this penal statute is correct is not a proper subject for

declaratory judgment. The sharing of a legal interpretation in meetings, conferences, or other




        3
           VFW also contends that it “repeatedly offered to put on evidence to support its pleadings”
 but that the trial court “did not allow the presentation of any evidence from either party.” A review
 of the record does not reflect that such a clear-cut offer and refusal occurred. At the hearing, VFW
 stated that it would offer evidence, and the trial court responded, “No, but in the cases y’all have
 given me, there is a memo or —,” at which point VFW went on with its argument and stated that it
 would “offer into evidence, if I can find it,” the manual published by the Attorney General. Later,
 VFW stated, “We are again kind of premature in the due course of things, because we will introduce
 evidence from a representative of the Attorney General,” but never actually moved to introduce such
 evidence. Finally, VFW stated, “[T]hat will be exactly the proof,” again not moving to introduce
 evidence. Although VFW referred to proof, the record does not indicate that VFW explicitly moved
 to introduce evidence or that the trial court refused to accept such proof.

                                                   8
educational seminars does not amount to a formal opinion or “legal advice.” Nor do the manuals or

verbal interpretations amount to “rules.” The trial court did not err in granting the Attorney

General’s plea to the jurisdiction and dismissing VFW’s suit. We affirm the trial court’s order of

dismissal.




                                             Mack Kidd, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: July 24, 2003




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