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                THE         A-JTORNEW                 GENERAL.
                                   OP~XAS




Honorable  Pat Beene                              Opinion   No.   M-1262
County Attorney
Fannin County Courthouse                          Re: Constitutionality  of a portion
Bonham, Texas      75418                              of Section (g) of Article 11. 22,
                                                      Texas Education Code

Dear   Mr.   Beene:

       You have requested      an opinion of this office concerning the constitu-
tionality  of that portion of Section (g) of Article 11. 22, Texas Education
Code, pertaining     to election   to the State Board of Education,  and which
reads as follows:
                  ,1
                    ~ . ~ It shall likewise be unlawful for anyone
                  interested     in selling bonds of any type whatso-
                  ever to make a financial         contribution      to or
                  takepart     in, directly   or indirectly,       the
                  campaign      of any person seeking election to
                  the board.       Anyone convicted       of violating the
                  provisions      of this subsection     shall be punished
                  as prescribed       by the penal laws of this state. ”
                  (Emphasis       added).

       You also have asked two other questions    which we do not reach in view
of our conclusion   that the challenged   portion of the statute is unconstitu-
tionally vague and overbroad      and hence unenforceable.

     Under the above statute “anyone interested               in selling bonds of any type
whatsoever”    is expressly     barred from exercising           his political   rights in
the campaign of a candidate        seeking election to the State Board of Education.
Such infringements     on the political     ri,ghts of citizens      must be “carefully
and meticulously    scrutinized:’     since   “any   unjustified    discrimination     in
determining    who may participate        in political   affairs or in the selection       of




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Honorable    Pat Beene,     page 2             (M-1262)




public officials    undermines     the legitimacy    of representative    government.   ”
Kramer v. Union Free School District,             395 U. S. 621, 626 (1969).      In
this case, the Supreme Court held that the Equal Protection               Clause of the
Fourteenth    Amendment       requires   examination     of such a statute to determine
whether those citizens       excluded from political      participation   are in fact
substantially    less affected than those the statute includes.

                   “If the exclusions     are necessary      to promote
                   the articulated    state interest,     we must then
                   determine     whether the interest      promoted    by
                   limiting the franchise     constitutes     a compelling
                   state interest.   ” 395 U. S. 632.

       From the language of the penal statute under consideration,                    it is
apparent that any citizen is excluded from the exercise                  of his political
rights if he is interested        in selling bonds of another or if he owns any kind
or type of bonds himself,          even municipal        or government    bonds, and is
interested     in selling them.       Thus, the class of such citizens           is substantial,
indeed, and includes not only numerous                 persons who have, at best, a
remote and indirect        interest    in State Board of Education        affairs but also
includes those who may have a distinct                and direct interest    in the Board
decisions.       We are unable to justify such an overbroad             and vague classi-
fication or statutory      exclusion      of citizens    from the exercise      of their
political   rights.     No compelling       state interest    can be found to support it.
Where a statute or ordinance            is so vague as to be unenforceable           because
lacking in an ascertainable          standard     of guilt, it will be held unconstitu-
tional.    See Palmer v. Enclid, 91 S. Ct. 1563 (1971); City of Carmel-by-
the-Sea v. Young, 466 P. 2d 225 (Cal. Sup. 1970); Attorney General Opinion
No. M-1039 (1972).

       We also observe that the term “anyone interested             in selling bonds
of any type whatsoever”         is ambiguous    and taken literally    would cover a
vast majority      of the citizens.     We find ourselves    unable to supply, by
construction,      any legally identifiable    group with reasonable        certainty
against which a criminal         prosecution   would be legally enforceable          under
the legal standards       required.     The extent of interest    and kind of interest
are left to speculation.        The Supreme Court has declared          that statutes
inflicting    criminal   penalti,es “must be so precise and unambiguous               that




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Honorable      Pat Beene,     page 3,         :       (M-1262),



the ordinarv     person can know how to avoid unlawful conduct” and thus cannot
 be infected-w‘ith    vagueness.      United States v. Sullivan,    332 U. S. 689 (1948):
 Musser v. Utah, 333 U. S. 95 (1948); Bouie v. Columbia,              378 U. S. 347
 (1964).    A statute inflictine     criminal  nenalties  will be sustained    onlv if a
 reasonable    and practical     construction    can be given to the legislative
 language which identifies        the citizen concerned    and gives fair notice of the
 practices   to be avoided.       See U. S. v. Harris,     347 U.S. 612 (1954);
 Chaplinsky    v. New Hampshire,          315 U. S. 568 (1942); Boyce Motor Lines,
 Inc. v. United States,      342 U. S. 337 (1952).

       Finally,     the classification        of persons excluded from political              partici-
pation violates equal protection               and the equality of law provisions             of the
Constitution      because the classification           is not reasonably        related to the
state interest       to be protected        and is therefore      arbitrary     and unreasonable,
not being based on a real and substantial                 relation     to the subject of legis-
lation.     12 Tex. Jur. 2d 458, Constitutional             Law, Sec. 111. There is no
conceivable       relationship        or basis for barring citizens          from participating
in an election       of a candidate       for the State Board of Education             simply
because they are interested               in selling government         bonds or bonds of
private entities        which have no business          or relationship        with the discharge
of the duties of the members               of the State Board of Education.              An undefined
“interest”      in the sale of any type of bonds is an insufficient                  legal criterion
or standard       upon which to base penal violations               and is a potently overbroad
and arbitrary        classificati,on.

     Accordingly        it is our opinion         that the challenged   portion of Section (g)
of Article 11.22,       Texas Education           Code, is unconstitutional    and unenforceable.

                                          SUMMARY

                    That portion of Section (g) of Article 11.22,
                    Texas Education       Code, which makes it unlawful
                    and a penal violation     for anyone interested      in
                    selling any bonds of any type from making a
                    financial  contribution    or taking any part in the
                    election  campaign of any person seeking election
                    to the State Beard of Education      is unconstitutional
                    and unenforceable.




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Honorable   Pat Beene,   page 4       (M-1262)



                                    Very truly   yours,




                                                     . MARTIN
                                                  neral of the State of Texas

Prepared    by John H. Banks
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,      Chairman
W. E. AlIen,      Co-Chairman

Gerald Ivey
Robert Flowers
Ben Harrison
Bob Lattimore

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED      WALKER
Executive   Assistant

NOLA WHITE
First Assistant




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