                          May 25, 1990


    Honorable John Vance            Opinion No.   JM-1180
    District Attorney
    Frank Crowley Courts Bldg.      Re:   Applicability   of the
    Dallas, Texas 75207-4313        Cha,ritable Raffle Enabling
                                    Act, article 179f, V.T.C.S.,
                                    to a nonprofit    corporation
                                    whose purpose   is to oppose
                                    construction of a landfill
                                    (RQ-1962)

    Dear Mr. Vance:

         You ask two questions about whether a certain organiza-
    tion in Dallas County is authorized    to conduct a raffle
    under the Charitable  Raffle Enabling Act [hereinafter the
    act], article 179f, V.T.C.S.  You tell us that the organiza-
-   tion, a nonprofit corporation, opposes the construction of a
    landfill near the group's community.  You also tell us that
    the organization would use the proceeds of the raffle to pay
    for representation before the Texas Department of Health  in
    order to oppose the construction of the landfill because the
    members feel that the landfill would be detrimental to the
    health of the community.

         In your first question, you ask:

            Does the group's purpose for conducting   the
            raffle meet the definitions   of 'charitable
            purpose' under art. 179f, 5 2(a)(2) where the
            purpose is to raise money to pay for repre-
            sentation before the Texas Department      of
            Health?

         Section 3(a) of the act allows a qualified organization
    to conduct a raffle, and section 3(d) requires that all
    proceeds from the sale of raffle tickets be spent for the
    charitable purposes  of the organization.   Section  2(a)(2)
    defines "charitable purposes** as follows:

               (A) benefiting needy or deserving persons
            in this state, indefinite     in number, by
            enhancing their opportunity for religious   or
            educational advancement, relieving them from
            disease, suffering, or distress, contributing
            to their physical well-being, assisting   them


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            in establishing themselves in life as worthy
            and useful citizens,    or increasing their
            comprehension  of   and   devotion   to  the
            principles on which this nation was founded
            and enhancing their loyalty to their govern-
            ment; or

                (B) initiating, performing, or fostering
            worthy public works in this state or enabling
            or furthering the erection or maintenance  of
            public structures in this state.

    V.T.C.S. art. 179f, 5 2(a)(2).

         Along with your first question, YOU indicate your
    impression that the goal of this organization raises the
    issue of a possible conflict between subsections (A) and (B)
    in that the organization is attempting to contribute to the
    physical well-being of the populace through the defeat of
    the construction of a public work.1

         We do not believe that there is any conflict between
    the two subsections.  The use of the word "o??* to connect
    the two subsections of the definition clearly signifies that
    an organization  need not find its purpose in both sub-
P   sections.

         The act's definition   of "charitable purposes*' closely
    tracks definitions   used by the courts relative to the
    establishment of charitable    trusts.   Se.  ea     Bovd v.
    Frost,             196 S.W.Zd 497, 502 (Tet. 1946;; Powers v.
    First Nat'1 Bank of Corsicana,   161 S.W.Zd 273 (Tex. 1942);
    Carr v. Jones, 403 S.W.2d 181 (Tex. Civ. App. - Houston [lst
    Dist.] 1966, writ ref'd n.r.e.): u         Zollman, American
    Law of Charities, § 185 et sea.

         The Texas Supreme Court has determined   that the term
    "charitable purposes" has a fixed meaning in the law. Bovd,
    suora, at 501. The meaning of that term, described as fixed
    in 1946, appears no less fixed in 1990, when we compare the
    definition found in the act with that offered by Perry  (in



         1.    There is authority   for the proposition that the
    construction of a landfill is the construction of a "public
    work." See, e.a ., e,                          479 S.W.Zd 257
    (Tex. 1972) (for liability purposes, garbage disposal is a
    governmental function): Schulman v. Citv of Houston,      406
    S.W.2d 219 (Tex. Civ. App. - Tyler 1966), pet. overruled,
    412 S.W.2d   34 (Tex. 1967)    (manner, method, and site of
    garbage disposal within       discretion of city    council):
    see also Health & Safety Code chs. 361, 363, 364.



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i



     2 Perry, Trusts and Trustees     5 697 (7th ed. 1929)) and
     approvingly quoted by the supreme court.     Id.at502.   In
     the Powers opinion, the commission     of appeals knowingly
     applied charitable use law derived from tax statutes to a
     charitable trust established in a will. Powers. sunra, at
     280. Thus, we can see no reason not to apply charitable
     purpose law derived   from taxation statutes and the law of
     trusts to the relatively new use of the term "charitable
     purposesl* in the charitable raffle act.

          Although we can review relevant legal principles,       we
     cannot make a determination  as to whether the expenditures
     you ask about would be for a charitable     purpose.   Such a
     determination would depend on findings of fact, which we
     cannot make   in the opinion process.     The fact that an
     organization is a nonprofit  corporation is not, by itself,
     dispositive of the question of charitable purpose.       River
     Oaks Garden Club v. Citv of Houston     370 S.W.Zd 851   (Tex.
     1963). To determine whether the purpose of the organization
     is charitable, a court would examine at least the organiza-
     tion's statement of purpose in its charter or articles       of
     incorporation, and the ultimate beneficiaries.   See Blocker
     V. State,   718 S.W.2d 409 (Tex. Civ. App. - Houston       [lst
     Dist.] 1986, writ      ref'd n.r.e.)   (charitable   identity
     permanently   established  in corporate charter);      powers,
-    suora, (orphanage devoted to all orphans, regardless         of
     their religious affiliation, is charitable).

          Local prosecuting attorneys are better equipped to make
     preliminary factual determinations   in regard to whether
     certain conduct violates state gambling laws. Section   5(a)
     of the act authorizes county, district and criminal district
     attorneys, as well as the attorney general, to bring action
     in a county or district court for an injunction or re-
     straining order.

          In your second question, you ask:

             Does the act's exclusion of lobbying organi-
             zations, contained  in 5 6(a)(3), 5 6(b) (3),
             and 5 6(c)(3), apply to a citizen's     group
             which is raising funds in order to appear
             before an administrative board or agency,  in
             this case the Texas Department of Health?

          The act and the constitutional amendment that authorize
     charitable raffles permit a 'Qualified nonprofit    corpora-
     tion" to conduct a raffle for "charitable         purposes.*t
     Section 6 of the act defines the term "qualified nonprofit
     organiz.ationt' and includes requirements   in addition to
     incorporation as a nonprofit corporation.     V.T.C.S.  art.
/-
     179f, 5 6(a).




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     The three provisions about which you ask require that
to be qualified to hold a raffle, neither the organization
nor its parent organization "devote a substantial part of
its activities to attempting to influence legislation.1'

     These prohibitions on "attempting to influence legisla-
tion" are limited to exactly that. The lobby regulation act
includes both traditional,   legislative lobbying and, since
1983, attempts to influence administrative        action.    w
my        Gov't Code ch. 305. Inasmuch as that chapter's
various provisions   repeatedly   contain the expression     "to
influence   legislation         administrative    action,"
believe that the legislaE&e      intended,   in the Charitabyz
Raffle Enabling Act, to prohibit only attempts to influence
legislation.    S ed         Gov't    Code    85 305.003(a)(l),
305.004(l), 305.:05(tj; 'see also Gov't Code 5 305.002(l)
(definition of administrative    action), 305.002(6)    (defini-
tion of legislation).   Therefore, we conclude that opposing
approval of a landfill before the Department of Health would
not constitute an attempt to influence legislation under the
act.

                        SUMMARY
           The opposition   of the approval    of
        landfill~before the Department of Health doe:
        not constitute  lobbying and does not, by
        itself, disqualify an organization from being
        a qualified nonprofit  corporation under the
        Charitable Raffle Enabling Act.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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