                             The Attorney General of Texas
                                              September     22,    1980

MkRK WHITE
Attorney General
                         Honorable James B. Adams                       Opinion No. NW-2 4 3
                         Director
                         Department of Public Safety                    Re: ,Political activities of Depart-
                         5805 N. Lamar Boulevard                        ment of Public Safety officers
                         Austin, Texas 78773

                         Dear Mr. Adams:

                                You ask whether commissioned officers of the Texas Department of
                         Public Safety are eligible for appointment as a judge, clerk, or watcher of an
                         election mder article 3.04 of the Election Code. Article 3.04 provides, in
                         pertinent part:

                                     Except ss otherwise provided herein, no cne who
                                     holds an office of profit op trust under.. . this
12x hl(u Ave..suite202               state. . . shall act as judge, clerk, or watcher of any
Hanton.TX.77ooz                      election, general, speci& or primary. . . .
71-                -..
                   ..
                                Courts have held that policemen are public officers. Sawyer v. City of
                         San Antonio, 234 S.W. 2d 398 (Tex. 1950). Along with deputy sheriffs and
                         constables, they hold offices of trust or profit. Attorney General Opinion H-
                         1027 (1977). Article 2.12 of the Code of Criminal Procedure provides that
                         rangers and officers commissioned by the Department of Public Safety sre
                         peace officers.   Accordi@y,    we think it is clear that commissioned officers
                         of the Department    of Public Safety hold an “office of trust or profit” within
                         the meaning of article 3.04 of the Election Code.           They are therefore
                         ineligible to Serve as a judge, clerk, or watcher of a general, special, or
                         primary election.

                                  You also ask whether employees and officers of the department may
                          place bumper stickers endorsing political candidates      on their personal
                          automobiles, place campaign signs in their yards, or wear badges endorsing
                          political candidates while on or off duty.

                                Article 4413(g), section (2), V.T.C.S., provides that:

                                      No person in the Department        shalL . . engage in
                                      political activities or campaign for or against any
                                      candidate for any public office in this State.     Any
                                      person violating any provision of this subsection shell
                                      fafeit his position with the Department.




                                                            p.    766
         Honorable James B. Adems - Page Two             (I’tw-243)




                 Attorney General Opinion MW-149 (1979) held that section (2) is constitutional,
         proviocd that it is construed “so as not to infringe upon areas of protected conduct.”
         See also Attorney      General Opinion M-1099 (1972) (construing similar provision
         applicable to Department of Public Welfare). The purpcce of prohibitions like those
         found in article 4413(g) is to promote the efficiency and integrity of public service.
         United States Civil Service Commission v. National Associationof ictter Carriers, 413
         U.S. 548, 555 (1973); United Public Workers v. Mitchell, 330 U.S. 75 (1947); Gray v.
         Toledo, 323 F. Supp. 1281 (N.D. Ohio 1971). Attorney General Opinion MW-149 noted
         that article 4413(g) does not necCSSarib prohibit membershin in a Dolitical orcanization
         or a group which slpports such an organization,       but held that- employee; may not
         legally     work in a political   candidate’s  campaign by giving speeches, making
         contributions and telephone calls, or engaging in similar activities.

                The display of yard signs and bumper stickers and the wearing of badges
         endorsing political candidates may be political activities within the meaning of section
         (Z), article 4413(g), but they may also be expressions of personal opinion protected by
         the First Amendment.       The Supreme Court has not considered whether a state may
         constitutionally   prohibit its employees from wearing political buttons or displaying
         bumper stickers.     In Broadrick v. Oklahoma, 413 U.S. 601 (l973), the court suggested
         that a rule banning political buttons or bumper stickers might be impermissible, but did       .
         not reach this issue. 413 U.S. at 617, 622. The employee in question had engaged in
         fund raising, which the state could constitutionally      prohibit. See also Connealy v.
         m,       412 F. Supp. 146 (W.D. MO. 1976).
                   ~                            ..
-.   .          The Hatch Act reserves to federal employees the right to vote and to express
         opinions on political subjects and candidates.  5 U.S.C. §7324(b). Federal regulations
         interpret this provision as permitting employees to display a political picture, sticker,
         badge or button. 5 CFR S733.1lL

                In cur opinion, section (2) of article 4413(g) should not be construed as prohibiting
         an employee from wearing a political button while off duty, placing a campaign sign in
         his yard, or displaying a bumper sticker in his private automobile which is not used on
         state business. Broadrick raises a question as to whether these activities constitute
         protected    conduct.   Such private and passive expressions of political opinion would
         seem, moreover, to have only a minimal effect, if any, on the efficiency and integrity
         of the public service.    Finally, a prohibition against bumper stickers and yard signs in
         many cases would reach political expressions by a state employee’s spouse who owns a
         community property interest in the house or car. We will avoid construing article
         4413(g) to. prohibit conduct which appears to be protected by the First Amendment.
         Accordingly, employees of your agency may legally display partisan political emblems
          while off duty.

                 The wearing of a political button while on duty, and the display of a bumper
          sticker on an automobile used on state business, raise different questions. Courts have
          found valid state interests in forbidding this kind of conduct MI the job. In Smith v.
          United States, 502 F. 2d 512 (5th Cir. 1974), a psychologist challenged his dismissal
          from the staff of a Veterans Administration hospital for wearing a peace button while
          treating veterans.  The court upheld the firing because display of the button, although




                                                .   p.    767
         .f<.   ’   .
..
     ,
                    Honorable James B. Adams - Page Three            (HI+243)




                    symbolic speech protected by the First Amendment, resulted in substantial inter-‘.“‘
                    ference with the employee’s duties. In another case, a social worker who counseled
                    juvenile probationers at their homes and schools was dismissed for displaying a partisan
                    bumper sticker on the personal car she &ove to these interviews. Connealy v. Walsh,
                    412 F. Supp. 146 (W.D. MO. 19761. The court held that this expression of opinion could
                    be forbidden because it would interfere with her job effectiveness.
                        .
                               We believe that section (2) of article 4413(g) should be construed to prohibit the
                        display of political buttons whIIe on drty and of bumper stickers on cars used in
                        connection with work when such activities will interfere with the effectiveness of your
                        employees.

                               Your last question is whether officers and employees      of the department may
                        serve as officers of local, state a national conventions.         Article 13.34(b) of the
                        Election Code provides that:

                                   No person shall be ineligible to serve as a delegate          to any
                                   county, senatorial distirct, state or national convention     of any
                                   political party by reason of his holding any public office.

                               You advise that the department has interpreted article 13.34(h) as applyiq       to
         ”              employees as well as to officers. We believe this is a reasonable construction.  We    can
                        think of 110reason why the legislature would have intended to permit public officers    to
                        participate in conventions as delegates but not allow employees to dc so, and we dc    not
                        think article 13.34(h) should be construed in that manner.

                              A literal construction of article 13.34(h) would alsc produce the rather odd result
                        that individuals could serve ss delegates to conventions but not be eligible for any of
                        the offices which convention delegates hold Convention officers are chosen from the
                        body of delegates, and we do not think the legislature intended to permit individuals to
                        serve as delegates but then limit them strictly to that role. Accordingly, we conclude
                        that although article 13.34(h) refers to “delegates,” that pmvision creates an exception
                        to the general prohibition against participation in political activity set forth in article
                        4413(g), V.T.C.S., which should be liberally construed to permit individuals to perfarm
                        any functions and be eligible for any pasitions which convention delegates typically
                        hold     Thus, the answer to your question is that officers and employees of the
                        department may serve as officers of local, state and national conventions.

                                                              SUMMARY

                                        Commissioned officers of the Department of Public Safety
                                    are ineligible to serve as a judge, clerk, or watcher of a general,
                                    special, or primary election tmder article 3.04 of the Election
                                    Code. Section (2) of article 4413(g), V.T.C.S., does not prohibit
                                    officers and employees of the department from placing bumper
                                    stickers    endorsing candidates    for political  office on their
                                    personal automobiles, placing campaign signs in their yards, or




                                                              P.   760
             .   .



             Honorable James B. Adams - Page Four       (Mw-243)




                        wearing badges endorsirg political &mdi&tes whiie off duty,
                        but does prohibit them from displaying partisan bumper stickers
                        or political buttons while an &rty when such conduct would
                        interfere with their effectiveness as public employees. Officers
                        and employees of the department        may serve as officers of
                        political party conventions.
             .
                                                      &Zy&l



                                                         Attorney   General of Texas

             JOHN W. FAINTER, JR.
             First Assistant Attorney General

             Prepared by Jon Bible 61Susan Garrison
             Assistant Attorneys General

             APPROVED:
             OPmIGN COMMlTTEE                     .
. -
      -* .   C. Robert Heath, Chairman
             Jim Allison
             Jon Bible
             Susan Garrison
             Rick Gilpin




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