                              QBffice   of the JW.xnep          CBenecat
                                          Mate of ZEexae
DAN MORALES
 ATr”RNEY
       GENERAL                                July 29,1996

      Ms. Nora A Linares                             Opinion No. DM-408
      Executive Director
      Texas Lottery Commission                       Re: Whether Government Code section
      P.O. Box 16630                                 467.025(a)@) prohibits a member of the
      Austin, Texas 787616630                        Texas Lottery Commission t?om, in his or
                                                     her capacity as a private citizen, soliciting
                                                     contributions or advising a contriiution to a
                                                     political candidate     and related ques-
                                                     tion (RQ-882)

      Dear Ms. Linares:

               Government Code section 467.025(a)(S) provides that a member of the Texas
      Lottery &mm&ion may not %ractly or indirecUy coerce. attempt to coerce, command
      or advise a person to pay, lend. or contriie    anything of value to another person for po-
      litical purposes.” You ask whether section 467.025(a)(5) prohibits a commissioner, acting
      in an unofficial, personal uapacity, from participating in the political process by either in-
      dividushy, or as a member of a group, soliciting or advising contributiona be made to
      political candidates. Jfit does, we understand you to ask whether section 467.025(a)(5)
      contravenes the Fkst Amedment of the United States C!onstitutior~

              Section 467.025(a)(5) expressly prohibits a commissioner from advising a person
      to make a political contriiution, and by its terms, the section encompasses unofficial, as
      well as official, conduct. In addition, although section 467.025(a)(5) does not explicitly
      prohiii a commissi oner fkom soliciting a political contriiutio~ we construe the statute to
      preclude it. The section thus prohibits a commissioner Sam soliciting a political contriiu-
      tion in his or her personal capacity. Piiy,    we do not believe a court would Snd section
      467.025(a)(5) uncxmstitutional on its face, although certain applications of the statute may
      be unconstitutional.

               We begin by briefly descriii   the provision in question. Government Code sec-
      tion 467.025(a) generally lists conduct that is prohibited to a member of the commission.
      With the exception of subsection (4), section 467.025(a) applies to personal, as well as
      official, conduct:

                     A commission member may not:

                             (1) accept any employment or remuneration from [certain
                entities];
Ms. Nora A. Linares - Page 2                      @M-408)




                       (2) play any lottery or bingo game conducted in this state;

                      (3) accept or be entitled to accept any part of the winnings
             to be paid from a lottery or bingo game conducted in this state;

                       (4) use the member’s offid authority to affect the result
             of an election or nomination for public office; or
                       (5) directly or indirectly coerce, attempt to coerce, com-
             mand, or advise a person to. . contribute. . to another person for
             political purposes. [Emphasis added.]
A member who violates these prohibitions is subject to removal by the governor.1 Be-
cause the legislature explicitly has limited section 467.025(a)(4) to a commissioner’s
official authority, we believe that the legislature likewise expressly would have restricted
the scope of subsection (a)(S) to conduct in the member’s official capacity if the legisla-
ture had desired to except actions taken in the commissioner’s personal capacity.
Particularly in the absence of such an explicit limitation, we must construe section
467.025(a)(5) to apply to a commissioner’s official and unofficial conduct.

         Section 467.025(a)(5) thus explicitly forbids a commissioner, in his or her personal
capacity, from advising a person to contribute for political purposes. The statute does
not, however, expressly forbid a commissioner to solicit a political contribution. Further-
more, while the terms “coerce,” ‘command,” and “advise” may imply a relationship in
                                        l


which one party is perceived as superior to the other, the term “solicit” may suggest a
straightforward request in a relationship of equals. 2 We therefore proceed to consider
whether section 467.025(a)(5) precludes solicitation.

         In our opinion, the legislature patterned section 467.025(a)(5) after 5 U.S.C.
$ 1502(a)(2), which is part of the Batch Act.3 Section 1502(a)(2), 5 U.S.C., forbids an
officer or employee of a state or local agency that receives federal funds’ to “diiectly or
indiiectly coerce, attempt to coerce, command, or advise” another state or local offi&r to
make a political contribution. The phrase “directly or indirectly coerce., attempt to coerce,
command, or advise” appears verbatim in Government Code section 467.025(a)(5).
Given that the federal provision originally was enacted in 1940,5 while the Lottery Com-

        ‘Gw’t Coda5 467.026(a)(3).

        2cdmpore     WEBSIER’NINTH
                             S    NEWC~ILFG~TEDICTIONARY   59, 256. 264 (1990) (defining
%dvise,” “ccaco,”                              1122 (defining “solicit”).
                    sad “command,” respectively) with id. at


        35   U.S.C. ch. 15.

        4See 5 U.S.C. 5   1501(4);Bouersv. Cornerr,865 F.2d 1517, 1520 (8th Cir. 1989).

        5Actof July 19, 1940, ch. 640.54 Stat.767 (1940) (codifiedas amendedat 5 U.S.C. 9 1502).




                                                   p. 2243
Ms. Nora A. Linares - Page 3                  (DM-408)




mission’s counterpart was enacted in 1993,6 we believe the state legislature litkd the
quoted pbrase out of the federal law. Consequently, we believe we must construe the
state law consistently with the federal law.

          At least one federal court has construed 5 U.S.C. $ 1502(a)(2) to apply to the so-
licitation of funds.7 We accordingly construe Government Code section 467.025(a)(S) to
prohibit soliciting, as well as coercing, commanding, or advising a political contribution.
Section 467.025(a)(S) thus forbids a member of the Lottery Commission to solicit contri-
butions in either the member’s official or unofficial capacity.

         You are concerned that, if Government Code section 467.025(a)(S) applies to a
commissioner’s unofficial conduct, the statute may violate the Fit Amendment to the
United States Constitution. In essence, you suggest that section 467.025(a)(S) unconsti-
tutionally may impinge upon a commissioner’s right of free speech. We do not believe a
court would find the statute facially unconstitutional for overbreadth or vagueness.

         The United States Supreme Court has determined that the government has a spe-
cial interest in regulating its employees’ speech.* Nevertheless, to constitutionally regulate
its employees’ speech, the government successtirlly must balance tbe interests of an em-
ployee, as a citizen, “in commenting upon matters of public concern” against the “interest
of the State, as an employer, in promoting the efficiency of the public services it performs
through its employees”9 We believe this rule applies also to the rights of officers of the
government, particularly those who are appointed.

         Thus, to determine whether section 467.025(a)(5) facially violates the constitution,
we must balance the state’s interest in legislation against the rights of an affected individ-
ual. Because such an issue is necessarily fact-bound, this office generally is unable to
detinitively resolve the issue absent definitive judicial guidance.rO In this case, however,
we believe the courts have provided sufficient directives, both regarding overbreadth and
vagueness, so that we may resolve this issue as a matter of law.


        6.s Act of May 11, 1993,73d I.e8., RS., ch. 284, 8 1, 1993Tex. Gen Laws 1299, 1300. In
1983,the legislature had enacted a similar statute.prohibiting a state employeefrom %erc[i], at-
temp@8] to coerct, command[iagl.restrict[ing],attempt[ing]to restrid, or prevent[ingl”a conmion
for a political purpose. See Ad of May 28, 1983,68th Leg., RS., ch. 579, 8 3, 1983Twr Gen. Laws
3763.3764, codijiedas Gov’t Code5 556.004(a)(2).

        7See Bauers, 865 F.2d at 1520.

        sPickeringY. BoardofEduc., 391 U.S. 563,568 (1968).

        gId.

        Wee AttorneyGeneralOpinionDM-42(1991) at 2-3.




                                             p. 2244
Ms. Nora A. Linares - Page 4                    (DM-408)




         We consider first whether the statute is overbroad. In Broadrick v. Oklahoma the
United States Supreme Court considered a challenge to an Oklahoma statute forbidding a
classified service employee to solicit or receive a “contribution for any political organiza-
tion, candidacy, or other political purpose.“rr Appellants before the Court, Oklahoma
classified service employees charged with actively engaging in partisan political activities
among their coworkers for the benefit of their superior, contended that the statute
“purports to reach protected, as well as unprotected conduct,” and is therefore over-
broad.12 The Court disagreed.13 According to the Court, particularly with regard to a
statute that regulates conduct as well as speech, the statute is unconstitutionally overboard
only if the overbreadth is substantial, “judged in relation to the statute’s plainly legitimate
sweep. “I4 Absent substantial overbreadth, the Court continued, a court should not strike
the statute in its entirety; rather, the court should cure the overbreadth on a case-by-case
basis.‘5

        Furthermore, the Court found, the Oklahoma State Personnel Board and Attorney
General had wnstrued the statute to prohibit only “clearly partisan political activity.“r6
While the Court conceded that the provisions might be applied improperly to an activity
such as the display of political buttons or bumper stickers, the Court concluded that the
provision is “not substantially overbroad and is not, therefore, unwnstitutional on its
face.“r7

          Similarly, wurts have retbsed to strike a statute as unconstitutionally vague if “the
ordii       person exercising ordii    wmmon sense can sufficiently understand and wm-
ply. . . .“I* Thus, a court will not strike as vague a statute., the terms of which plainly
encompass “[tlhe general class of offenses to which the provisions are directed . . , even



        “Broadrick v. Oklahoma,413 U.S. 601, 605-06 (1973). We note that the statute at issue in
Broodrickwas not limited to a classitiedserviceemployee’son-the-jobor job-relatedconduct. See id. at
603 nl, 605-M

          121d.at 610.

          131d.at 615.

          “1d.

          151d.at 615-16.

          161d.at 617.

          171d.at 618.

          ‘*UnitedStates CivilServ. Cornm’nv. NationalAsh of Letter Canters, 413 U.S. 548, 579
(1973).




                                               p. 2245
Ms. Nora A. Linares - Page 5                    (DM-408)




though marginal cases could be put where doubts might arise.“rg In United Stares Civil
Service Commission v. National Asscciafion of Letter Carriers, for example, the United
States Supreme Court considered a constitutional challenge to a federal laws0 that pro-
hibited a federal employee from actively participating “in political management or in
political campaigns.“** The Court concluded that the statute was not impermissibly
vague.” Additionally, the Court determined that the statute was not substantially over-
broad.23 Moreover, in that case the United States Supreme Court stated that Congress
wnstitutionally may restrict the right of federal employees to solicit political contributions.
The statute at issue in National Association of Letter Carriers did not distinguish between
an employee’s job-related and private conduct.”

       In view of Broadrick and the other authorities cited above, we do not believe a
wurt would find Government Code section 467.025(a)(5) unwnstitutionally overbroad or
vague on its face and as a matter of law. Like the state’s interest in regulating class&d


         lgId.(quotingUnitedStatesv. Hawks, 317 U.S. 612,618 (1954)). Statutoryvagocmss is a con-
cemoaderFii      Amendmentdue-processprinciples. Id. Fkcausea vague s&tote may &ill pmteotcd
speech, however,vaguonesais of heightenedcooccm in statotcaimpinging on speech. See McNeo v. Ga-
rey, 434 F. Sapp. 95, 106 @I.D.Ohio 1976). ‘Whcm a statute’sliteral scope. onaided by a nanwing
stateeomt interpretation,is capableof reachingcxprcssionshelteml by the First Ammdmmt the [doe-
p-J      docbinc demands a greaterdegreeof specificitythat in other contexts.” Smithv. Gogum, 415
U.S. 566,573 (1974).

         so5 U.S.C. 5 7324(a) (amended1993). The portionsof 5 U.S.C. $7324(a) that the NarionolAs-
sociation of Letter CarriersComt sooted were omittedin the revisionsto the HatchAd madeby &on
2(a) of pub. L. No. 103-94.

        211d.at 550.

        221d.at 579-80.

        nId. at 580.

        24See National A&I of Letter Gmtem, 413 U.S. at 550 (quoting 5 U.S.C. $7324(a)(2),
ameaded1993). In NotionalAssociationof Letter Carriersthe Court held that Cmgrcss may prcvcnt
federalemployeesfrom holding a partyoffice, workingat the polls, and acting a partypaymskr for other
partywrkers. Id.at556. Thos,thestatuteatisswwasvalid         Id.Futhe.mo~,thccourtsfatcdthatthe
statutewould be valid even if it plainly aod andeMly     fo-      other pa&an political activitica,in-
cluding ktively participatingin timd-raisingactivitiesfor a @utisaacandidateor political party.” Id.
As the courtstated,“neitherthe First Amendmentnor any otherprovisionof the ConsIitotioninvalidates
a law bar@ this kind of part&anpoliticalcondoctby federalemployees.”Id.

          The supremec!cWtwnrinued by summarizingthe historyof governmentalrestrictionof its cm-
ployces’part&o political activity. See id. at 557-63. Accordingto the Cmrt, that history goes back at
least as tu as ThomasJeffmon, who was, as president,dis&rbedby the political activitiesof some of the
employeesof the executivebranch. Id. at 557 (citing 10 I. RIGHARDSON, bfESSA0F.S AND PAPERS OF ?-“E
FI’ESDENTS   98 (1899)).




                                                p. 2246
Ms. Nora A. Linares - Page 6                 (DM-408)




civil service employees, discussed in Brouhick, we believe a court would find that the
state has a heightened interest in restricting the political activities of commissioners. The
commission has broad authority over state lotteries, as well as over state authorized bingo
games.2s The extent to which section 467.025(a)(S) may be overbroad or vague must be
determined on a case-by-case basis.26

                                    SUMMARY

                Government Code section 467.025(a)(5), providing that a mem-
          ber of the Texas Lottery Commission may not “directly or indirectly
          coerce, attempt to coerce, command, or advise a person to pay, lend,
          or contribute anything of value to another person for political pur-
          poses” applies to activities of commissioners both in their official and
          personal capacities. Section 467.025(a)(S) expressly prohibits a
          commissioner from advising a potential donor to contribute to a po-
          litical cause, and it implicitly prohibits a commissioner from soliciting
          a contribution.

               A court probably would not find section 467,025(a)(5) unwnsti-
          tutional on its face and as a matter of law.




                                                       DAN MORALES
                                                       Attorney General of Texas

JORGE VEGA
Fiist Ass&ant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




        26SeeBroadrick,413 U.S. at 615-16.




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