                                  August    29, 1089



Dr. William H. Cunningham                Opinion    No.   JM-1091
President
University  of Texas System              Re:    Use of campus mail    ser-
201 W. 7th Street                        vices   at  state   universities
Austin, Texas 78701                      (RQ-1644)


Dear   Dr.    Cunningham:

      you have requested          the   advice     of this   office     on    the
following matter:

                We request your       opinion as     to whether     a
             faculty or staff       organization    that has    been
             certified   by an official of the University         to
             be   an   organization      whose   activities      and
             purposes   'are    academically    relevant    to   the
             educational    mission of the University'       may be
             permitted   to   use    the   campus    mail   service
             without violating      Section    51 of Article     III
             of the Texas       Constitution     or   the   federal
             statutes relating to the private carriage            of
             letters without the payment of postage.

      you do    not describe     any particular      faculty or     staff
organization.     We assume from your letter, however,          that you
are asking about      organizations    that    are neither     supported
nor sponsored     by the    university    but   whose activities       and
purposes   the   university     has   recognized     as   "academically
relevant to the educational       mission"    of the university.       See
aenerallv   Attorney    General     Opinion H-511      (1975)    (use    of
university     facilities     by     student     organizations        with
religious   affiliation).

      We turn first  to 'your question                about  article         III,
section 51, of the Texas Constitution,               which provides:

                 The Legislature     shall    have no    power   to
             make any grant or authorize       the making of any
             grant of    public    moneys to    any    individual,
             association     of   individuals,     municipal     or
             other    corporations      whatsoever;      provided,
             however,   the   Legislature     may grant     aid  to



                                         p. 5707
Dr. William    H. Cunningham     - Page   2   (JM-1091)




          indigent and      disabled     Confederate     soldiers
          and   sailors     under     such    regulations      and
          limitations    as may be deemed by the         Legisla-
          ture as    expedient,    and    to their    widows    in
          indigent circumstances       under such regulations
          and limitations       as   may   be   deemed    by   the
          Legislature    as expedient:      provided   that    the
          provisions     of   this    Section    shall    not   be
          construed   so as to     prevent the grant of        aid
          in cases of public calamity.

Article III,     section 51,     has   been construed    to   prohibit
donations   of public      property    as  well   as   public    funds.
Rhoads Drillina      Co. v.   Allred, 70    S.W.Zd 576,     582   (Tex.
1934);    Attorney    General    Opinions   MW-373    (1981);   WW-790
 (1960); WW-153    (1957).     The use of   the campus mail     system
would be the use of public property.

      Article    III, section 51, does not prohibit          all uses      of
public property      by   private entities.      Such    use is     pennis-
sible if    it    is for    a public      purpose and     if    there     are
controls   to    assure    that    the public    purpose     is    actually
achieved.     Attorney     General Opinions      WW-373    (1981);     M'W-89
(1979); H-1309, H-1260        (1978).    The determination      of whether
the use of campus       mail by a private organization           serves     a
public purpose is to be made, in the first instance,                by   the
university.      Attorney     General Opinion     MW-373    (1981).      The
fact that     an   organization       is  a private      one    would    not
preclude   a finding that       the use of the      campus mail by       the
organization     serves a public purpose.        On the other hand,         a
determination     that    the   purposes   of   the   organization       are
*'academically relevant to         the educational     missionV* of      the
university    is not the equivalent       of a determination      that the
use of the campus mail by that organization             serves a public
purpose.    Indeed, it is certainly         possible    that the use       of
the campus mail by an organization           for a particular     type     of
mailing would serve a public purpose, whereas the use of the
campus mail by       the same     organization   for    another type       of
mailing would not.

      You also    ask about    the federal      Private Express      Sta-
tutes, 18 U.S.C. 55 1693-1699;         39 U.S.C. 55 601-606,        which
"establish   the postal    monopoly    and   generally   prohibit     the
private carriage    of letters    over postal routes without          the
payment of    postage to    the United      States Postal      Service."
Reaents of Univ. -of California        v.   Public EmDlOVment       Rela-
tions Bd., 108 S.Ct. 1404, 1405 (1988).           See aenerallv      U.S.
House of Representatives,      Committee    on Post Office and Civil
Service,   Statutes Restrictina     Private    Carriaae    of Mail    and
Their Administration      (1973).      The statutes     of    particular




                                     P.   5708
Dr. William    H. Cunningham      - Page    3     (JM-1091)




concern   to you are  sections       1694       and   1696    of title   18   and
section   601 of title 39.

     Section    1694   of title    18 provides:

             .Whoever, having charge        or control of      any
          conveyance    operating   by land, air, or       water,
          which    regularly     performs    trips   at    stated
          periods on any post route, or from one            place
          to   another     between     which    the   mail       ’
          regularly   carried, carries, otherwise        than ti
          the mail, any letters or packets,         except such
          as relate to some part        of the cargo of      such
          conveyance,    or to the current business        of the
          carrier, or to      some article     carried at     the
          same time     by   the   same   conveyance,      shall,
          except as otherwise      provided by law, be fined
          not more than $50.

     Section    1696   of title   18 provides:

              (a) Whoever      establishes     any    private
          express for    the   conveyance   of   letters    or
          packets,  or in any manner causes or      provides
          for the   conveyance   of   the same ,by regular
          trips or   at   stated periods    over   any    post
          route which is or may be established      by    law,
          or from any city, town, or place to any other
          city, town, or place, between which the        mail
          is regularly   carried, shall be fined not more
          than $500    or imprisoned    not more   than    six
          months, or both.

              This section shall not prohibit     any person
          from receiving    and delivering  to,the   nearest
          post office, postal car, or other       authorized
          depository   for    mail matter  any mail    matter
          properly   stamped.

              (b) Whoever transmits     by private    express
          or other unlawful means,      or delivers to     any
          agent thereof, or    deposits at any      appointed
          place, for   the purpose     of being    so  trans-
          mitted any letter or     packet, shall be      fined
          not more than $50.

              (c) This chapter shall      not prohibit      the
          conveyance   or   transmission     of   letters     or
          packets by   private hands     without     compensa-
          tion, or   by special    messenger    employed    for
          the particular   occasion only.     Whenever     more



                                     P. 5709
Dr. William    H. Cunningham     - Page     4   (JM-1091)




         than twenty-five    such letters or packets    are
         conveyed   or   transmitted    by  such   special
         messenger,  the requirements    of section 601 of
         title 39, shall be observed as to each piece.

      Section 601 of title  39, which permits                  private     postal
services under some circumstances,   provides:

             (a) A letter       may   be carried         out    of   the
         mails when --

                    (1)   it is enclosed        in an envelope:

                    (2) the      amount   of   postage    which
              would have been charged        on the letter    if
              it had    been   sent    by  mail    is  paid   by
              stamps, or     postage meter     stamps, on   the
              envelope;

                    (3)   the    envelope       is     properly      ad-
              dressed:

                    (4) the envelope  is             so sealed   that
              the letter cannot be taken             from it without
              defacing  the envelope;

                    (5) any stamps on   the envelope                 are
              canceled  in ink by the sender: and

                    (6) the date of      the letter, of              its
              transmission   or receipt by the carrier                is
              endorsed   on the envelope   in ink.

             (b) The Postal    Service may     suspend    the
         operation of'any   part of     this section     upon
         any mail  route   where    the   public    interest
         requires the suspension.                                             *

      In Reaents of Univ. of California     v. Public    Emvlovment
Relations   Bd., suvra, the    Supreme Court considered     whether
the use of the     internal mail service    of the University     of
California   by  a public    employees union    would violate    the
private express statutes.       The court pointed    out that    the
exception   in section 1694 of title 18 for letters or packets
relating   "to the   current business   of  the carrie??   --   also
known as the "letters-of-the-carrier"      exception  -- was    what
allowed the university     to operate an internal mail system at




                                      P. 5710
Dr. William   H. Cunningham    - Page   5   (JM-1091)




all.1   The question  in the Universitv of California  case was
whether that   exception   would permit  the  university   mail
system to carry letters from the union to certain university
employees.

      The union argued     that California       had made    harmonious
labor relations   the business      of its state university.          The
court commented   that the state could define the business             of
its institutions    as it saw fit but that, for purposes          of the
federal postal    statutes,     that principle       had   its   limits.
Otherwise,   the court wrote,      'la State could define      delivery
of mail to    all its   citizens as the        'current business'      of
some state agency and      thereby defeat the postal         monopoly."
108 S.Ct., at    1409.    The   court declined       to delineate     the
exact scope of    the "letters-of-the-carrier"         exception,     but
it concluded    that   the    exception     was   a narrow     one    and
that the union's     letters    were    not   close    enough    to   the



    1.   On its face,   the V'letters-of-the-carrierll       exception
appears to be an exception        from the prohibition     set out    in
section 1694    of   title 18,     not   from the    Private   Express
Statutes generally.      In the    Universitv   of California     case,
however,   the Supreme    Court treated the      exception   as if    it
would exempt    a carrier     from the    Private Express     Statutes
generally.

      We note   that  the  Postal   Department    has   adopted     a
regulation  that purports  to create a    letters-of-the-carrier
exception  from the Private Express Statues generally.          That
regulation  provides:

               The sending    or carrying   of letters     is
         permissible   if they are sent by or     addressed
         to the person carrying them.      If the    indivi-
         dual actually carrying the letters is not the
         person sending    the letters    or to   whom    the
         letters are addressed,     then such    individual
         must be an officer or employee of such person
         and the letters    must relate    to the   current
         business   of such person.

39 C.F.R.   5 310.3(b)(l)     (citation omitted).     At least     one
circuit court has held      that it is within the authority         of
the Postal Service to      promulgate   regulations  affecting     the
criminal,  as well   as the civil, provisions       of the    Private
Express Statutes.      Associated     Third Class   Mail   Users    v.
United States   Postal   Serv.,     600 F.2d   824, 826   n.5    (D.C.
Cir.), cert. denied, 444 U.S. 837 (1979).




                                   p. 5711
Dr.   William   H. Cunningham     - Page   6 (JM-1091)




university's     affairs   to come    within   the   exception.     Id.   at
1410.

       Your question     is whether the       "letters-of-the-carrier"
exception    permits the use of       campus mail     at the    University
of Texas     by groups     that the     university    determines      to  be
 "academically    relevant to      the educational      mission"    of   the
university.      The Universitv     of California     decision     requires
that, in order for letters          to come within the        10letters-of-
the-carrier"     exception,    there must     be a very close       connec-
tion between the business         of the carrier and the content          of
the letters.      Consequently,     we think that a finding that          an
organization     is   academically      relevant to     the    educational
mission of the University         of Texas is insufficient       by itself
.to bring letters of the organization           within the "letters-of-
the-carrier"     exception     to   the   Private     Express     Statutes.
Whether particular        letters    of   a particular        organization
would come     within     the   exemption    is   a   fact    question    to
be resolved      in   accordance     with    applicable     federal      law
standards.2

      You   next    ask   about    the     effect  of  the    so-called
"private-hands"     exception,    which    is based on section 1696(c)
of title 18:

              This   chapter   shall     not   prohibit     the
          conveyance     or  transmission     of   letters   or
          packets by    private hands     without    compensa-
          tion.

See al      39   C.F.R.   s 310.3(c)     (regulation    containing
OqprivaFz-handsll exception).    The Supreme Court discussed    the
"private-hands"   exception   in the   Universitv    of California
case :

              Congress     used   unambiguous     language     to
          accomplish    its    goals.   Persons    or   entities
          other than the United States Postal           Services
          -- l.e., 'private hands' -- may carry letters
          without      violating      the    Private     Express
          Statutes   only so long as they do not         receive
          any form of benefit       from the sender --     i.e.,
          'without compensation.'         While    the   pivotal
          term, 'compensation,'       is not further defined,



    2. We note   that  the   postal   service  issues advisory
opinions on questions  arising under parts 310 and 320 of the
Code of Federal Regulations.     39 C.F.R. 5 310.6.




                                     p. 5712
Dr. William   H. Cunningham     - Page   7    (JM-1091)




         Congress in no way        qualified   its reach.       We
         therefore    give effect to congressional         intent
         by giving the language        its normal meaning.       A
         dictionary      from   the    period    during     which
         the private-hands         exception      was    enacted
         illustrates    the general      nature of the      term:
         it   defines     compensation      to   include    'that
         which supplies the        place of something       else'
         and 'that which       is given or     received as      an
         equivalent    for    services,   debt,    want,    loss,
         or suffering.'        N.    Webster,     An    American
         Dictionary    of   the English      Language   235    (C.
         Goodrich   ed.    1849).     Accordingly,      we   hold
         that the private-hands        exception   is available
         only when     there is no compensation          of   any
         kind flowing from the sender to the carrier.

108 S.Ct. at 1410.      The court then examined the relationship
between the    union   and   the  university   and  concluded     that
carriage    of  the    union#s   letters   would   not   be   without
compensation:

         By delivering     the Union's letters,        appellant
         would perform      a   service for      its   employees
         that they would otherwise        pay for themselves;
         through their union dues.         This service would
         become part of       the package     of monetary      and
         nonmonetary    benefits that appellant          provides
         to   its   employees      in   exchange     for     their
         services.      In    our   view,    carriage     of   the
         Union's   letters pursuant to such an           exchange
         of   benefits     necessarily       means    that     the
         carriage    is     not    'without      compensation.'
         Accordingly,    it    does   not    fall    within    the
         private-hands     exception.

108 S.Ct.   at 1412.                     .

      In short, the      "pr'ivate-hands" exception    is   applicable
only if the carrier receives no quid pro guo.           The   question
of what    constitutes    a quid    pro guo    for purposes    of   the
Private Express      Statutes    is   a question   of   federal    law.
Whether a quid pro guo exists in a particular          situation   is a
fact   question.       A   finding     that   an   organization       '
"academically    relevant to     the educational    mission"   of   tit:




                                    p. 5713
Dr. William    H. Cunningham       - Page    8   (JM-1091)




university  is irrelevant         to the     question   of whether        a    quid
pro guo exists.3

      You also     ask    about     39     C.F.R.    section   320.4,         which
provides:

              The   operation      of   39 U.S.C.         601(a)    (1)
          through    (6) and § 310.2(b)(l)        through     (6)    of
          this chapter is suspended         on all post        routes
          to permit colleges and universities             to     carry
          in their     internal mail       systems the       letters
          of   their     bona fide      student       or     faculty
          organizations     to   campus destinations.             This
          suspension    does    not    cover    the    letters       of
          faculty members,       students,     or   organizations
          other    than    bona fide     student      or     faculty
          organizations      of    the   carrying      college       or
          university.        Colleges       and      universities
          choosing    to provide their student or            faculty
          organizations     access to      their internal         mail
          systems are      responsible      for    assuring       that
          only letters of bona fide student or               faculty
          organizations      addressed       to     campus        des-
          tinations    are   carried.      (See    5 310.4)         For
          purposes    of this    suspension,      'internal       mail
          systems' are      those which      carry letters          on,
          between,    and among the various campuses             of   a
          single    college     or     university      and       which
          operate in accordance        with the Letters of the
          carrier exception        in 39 CFR 310.3(b).

Whether the   organizations you  ask about  come within    that
provision raises fact questions.   It would be appropriate   to
seek the opinion of the postal service in regard to    whether



    3.   In order for use of-university         property   by a private
organization     to'pass muster     under article III, section          51,
of the Texas      Constitution,    the university      must receive       an
adequate   quid pro quo.       See aenerally    Braden, The     Constitu-
tion of the State of Texas, vol. 1, at 229-36 (1977).                  What
constitutes    a   quid pro     guo for    purposes   of   article     III,
section 51, might not be the same as what constitutes              a quid
pro quo for purposes       of   18 U.S.C., section 1696(c).         It    is
possible,   ,however, that the existence        of a quid pro guo that
would make     use of     campus mail    by a private       organization
permissible    for purposes     of  article III, section 51,         would
make   the   use     impermissible     under    the   Private     Express
Statutes.




                                         p. 5714
Dr. William   H. Cunningham        - Page     9 (JM-1091)




specific organizations      come within that exception.       We note,
however,    that   the   regulation     refers    to  colleges       and
universities   providing    access   to "thei??' faculty    organiza-
tions.   That language    indicates that the regulation        applies
to organizations    that    are in some   way affiliated    with     the
university.    We also note that the regulation       only    purports
to suspend the     application    of 39 U.S.C. section      601(a) (1)
through   (6) and 39    C.F.R. section 310.2(b)(l)     through     (6) -
It does not    purport to     suspend the    application   of   either
section 1694 or section 1696 of title 18.

                                SUMMARY

               Article III,     section 51,     of the    Texas
         Constitution,   would    permit    the use    of   the
         campus mail system of the University         of Texas
         by a private organization       if the use is for a
         public purpose.     A   finding that the      private
         organization    in    question    is   "academically
         relevant to the     educational    mission*@ of    the
         university   is not the equivalent      of a finding
         that a particular       use of    the   campus    mail
         system serves a public purpose.

               Determinations  as   to whether   organiza-
         tions come within    various exceptions    to  the
         Private Express Statutes,    18 U.S.C.    §§ 1693-
         1699: 39 U.S.C. 55 601-606, involve questions
         of fact that are to be resolved     in accordance
         with federal law standards.




                                             JIM      M-A T T 0 X
                                             Attorney  General of Texas

MARY KELLER
First Assistant      Attorney     General

LCU MCCREARY
Executive  Assistant     Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant  Attorney         General

RICK GILPIN
Chairman,  Opinion     Committee

Prepared by Sarah Woelk
Assistant Attorney General


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