ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 12, 2011
The Honorable Barbara Cargill Opinion No. GA-0876
Chair, State Board of Education
1701 North Congress Avenue Re: Construction of section 7.l03(c), Education
Austin, Texas 78701-1494 Code, regarding the eligibility of a registered
lobbyist for membership on the State Board of
Education (RQ-0948-GA)
Dear Ms. Cargill:
Your predecessor wrote seeking guidance on subsection 7.103(c), Education Code, as it
relates to a person's eligibility to serve on the State Board of Education ("Board").' She asked many
questions that we are not able to resolve. For instance, many fact-based scenarios were presented
along with questions about subsection 7.1 03( c)' s applicability to each of them. See Request Letter
at 1-4. The opinion committee is not authorized to investigate allegations of illegal conduct, nor
does it have the capacity to resolve disputed questions of fact. See Tex. Att'y Gen. Op. Nos. JC-
0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion
process); JM-813 (1987) at 2 (recognizing that this office is not in a position to determine whether
a criminal violation has occurred). Instead, the role of the opinion committee is to advise authorized
requesters about purely legal questious. See Tex. Att'y Gen. Op. No. 1M-1098 (1989) at 3 (stating
that "Attorney General Opinions address specific legal questions"). Because this office does not
consider, nor does it have the ability to resolve, disputed fact questions in attorney general opinions,
we cannot answer the specific questions about the applicability of subsection 7.1 03( c) in particular
circumstances. See, e.g., Tex. Att'y Gen. Op. No. GA-0751 (2009) at 1 ("This office does not
resolve questions of fact in the opinion process."); accord Tex. Att'y Gen. Op. Nos. JC-0336 (2001)
at 5, MW-292 (1981) at 1. We can, however, address the legal underpinnings of those questions by
construing subsection 7.103(c).
The primary objective in statutory construction is to give effect to the Legislature's intent.
See Tex. Lottery Comm'n v. First State Bank ofDe Queen, 325 S.W.3d 628, 635 (Tex. 2010). Courts
rely on the plain meaning of the statute's text unless a different meaning is supplied by the
Legislature or context. See id.; TEX. GOV'TCODEANN. § 31 1.011 (a)-(b) (West 2005). Courts also
presume the Legislature intended a reasonable result and avoid construing a statute in ways that lead
'See Letter from Honorable Gail Lowe, Chair, State Board of Education, to Honorable Greg Abbott, Attorney
General of Texas at 1 (Mar. 2, 2011), https:llwww.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").
The Honorable Barbara Cargill - Page 2 (GA-0876)
to foolish or absurd consequences. See Hernandez v. Ebrom, 289 S.W.3d 316;321 (Tex. 2009)
(citation omitted).
Subsection 7.1 03(c) provides that
[aJ person who is required to register as a lobbyist under Chapter 305,
Government Code, by virtue of the person's activities for
compensation in or on behalf of a profession, business, or association
related to the operation of the board, may not serve as a member of
the board or act as general counsel to the board.
TEX. EDUC. CODE ANN. § 7.103(c) (West 2006). By its express terms, subsection 7.103(c) applies
to a person who is required to register as a lobbyist under chapter 305, Government Code. See id.
Relevant here, chapter 305 generally provides that registration is required2 of someone who receives
or is eligible to receive compensation or reimbursement of more than a threshold amount and within
a specified time frame "from another person to communicate directly with a member of the
legislative or executive branch to influence legislation or administrative action." TEx. GOV'T CODE
ANN. § 305.003(a)(2) (West Supp. 2010). Because of subsection 7.l03(c)'s express reference to
chapter 305' s registration requirement, we construe its language requiring a person to register as a
lobbyist "by virtue of the person's activities for compensation" to refer to those persons, not
otherwise excepted, who are compensated or who are eligible to be compensated or reimbursed as
specified by the statute, by another person for communicating directly with members of the
legislative or executive branch to influence legislation or administrative action.
Subsection 7.103(c), however, does not preclude all persons who are required to register
under chapter 305 from being eligible to serve on the Board. Compare TEX. EDUC. CODE ANN. §
7 .103(c ) (West 2006), with TEX. GOV'T CODE ANN. § 571.0231 (West 2004) (prohibiting without
condition all persons required to register as lobbyist from serving on the Texas Ethics Commission),
and TEX. NAT. RES. CODE ANN. § 81.01013(c) (West 2011) (prohibiting without condition all
persons required to register as a lobbyist from serving as general counsel to the Texas Railroad
Commission). Rather, subsection 7.103(c) reaches only those persons required to .register as
lobbyists who perform their lobbying activities--communicating with the two branches to influence
legislation or administrative action-"in or on behalf of a profession, business,.or association related
to the operation of the board." TEX. EDUC. CODE ANN. § 7.103(c) (West 2006). The phrase "related
to the operation of the board" is not defined in Texas statutes or judicial opinions, and thus we look
to the common meaning of its terms. See Tex. Lottery Comm'n, 325 S.W.3d at 635; TEX. GOV'T
CODE ANN. § 31 1.0 11 (a)-(b) (West 2005).
'Chapter 305 also expressly excepts specified persons from its registration requirement. See generally TEX.
GOV'TCODEANN. § 305.004(1)-(7) (West2005) (excepting, among others, persons who own, publish, or are employed
by a newspaper, persons whose direct communication is in an appearance before or testimony to members of the
legislative or executive branches, persons communicating with a member of the two branches on behalf of a political
party).
The Honorable Barbara Cargill - Page 3 (GA-0876)
In common usage "related to" means "pertaining to," "associated with," or "connected with."
See Tex. Att'y Gen. Op. No. GA-0673 (2008) at 3 (citing Univ. of Tex. Law Sch. v. Tex. Legal
Found., 958 S W.2d 479,483 (Tex. App.-Austin 1997, no pet. ) (citation omitted); see also E.l. Du
Pont de Nemours & Co. v. Shell Oil Co., 259 S.W.3d 800,806 (Tex. App.-Houston [lst Dist.]
2007, pet. denied) (defining "related to" to mean to "have reference to" or "concern" (citation
omitted)). The term "operation" is commonly defined to mean "a doing or performing action; work;
a deed." Pan Am. Ins. Co. v. Cooper Butane Co., 300 S.W.2d 651, 654-55 (Tex. 1957) (defining
the term according to its "usual and accepted meaning" and recognizing the term can be a synonym
with the word "work"). Under these common definitions, "related to the operation ofthe board" can
be construed to mean to pertain to or be associated or connected with the action, work, or deeds of
the Board. Considering this phrase in conjunction with the specific activities for which a person
must register as a lobbyist under chapter 305, we thus construe subsection 7.l03(c) to refer to a
person whose direct communications, for compensation, with the legislative or executive branch to
influence legislation or administrative action are undertaken in or on behalf of a profession, business,
or association on a matter that pertains to or is associated or connected with the action, work, or
deeds of the Board.
The Education Code prescribes the powers and duties of the Board. See TEX. EDUC. CODE
ANN. §§ 7.102(b) (West 2006) ("The board has the powers and duties provided by Subsection (c),
which shall be carried out with the advice and assistance of the commissioner."); 7 .102(c)(1 )-(34)
(listing the myriad powers and duties of the board). We will not opine on the full scope of the work
the Board may perform, but we believe at the very least that the express list of powers and duties
given to the Board by the Legislature constitutes the action, work, or deeds of the Board.
In sum, we conclude that a person who is required to register as a lobbyist by virtue of being
retained to communicate directly with the legislative or executive branch to influence legislation or
administrative action in or on behalf of a profession, business, or association on a matter that pertains
to or is associated or connected with any of the statutorily enumerated powers or duties of the Board
is not eligible to serve on the Board. To paraphrase, a registered lobbyist who has been paid to lobby
the legislative or executive branch on a matter relating to Board business is ineligible to serve on the
Board. The question of whether a person is ineligible under this construction of subsection 7.1 03(c)
is a fact question that is inappropriate to an attorney general opinion. See Tex. Att'y Gen. Op. No.
GA-0751 (2009) at 1 ("This office does not resolve questions of fact in the opinion process.").
The final question presents a purely legal issue that we can address: Whether a member of
the Board may cure a violation of subsection 7.1 03(c). See Request Letter at 4. There is no language
in subsection 7. 103 (c) to indicate any legislative intent to authorize a person who is ineligible to
serve on the Board to cure a violation. See TEX. EDUC. CODE ANN. § 7. 103 (c) (West 2006). The
absence of such a mechanism in the statute is not illogical given a presumption that a person who
is ineligible for Board service is not serving on the Board. Cf Hernandez, 289 S.W.2d at 321
(recognizing that Courts avoid construing a statute in ways that lead to foolish or absurd
consequences). Accordingly, we cannot advise that a member of the Board may cure his or her
ineligibility under subsection 7.103(c).
The Honorable Barbara Cargill - Page 4 (GA-0876)
SUMMARY
Subsection 7 .103(c), Texas Education Code, precludes certain
registered lobbyists from serving on the State Board of Education
("Board"). A person who has been retained to communicate directly
with the legislative or executive branch to influence legislation or
administrative action in or on behalf of a profession, business, or
association on a matter that pertains to or is associated or connected
with any of the statutorily enumerated powers or duties of the Board
is not eligible to serve on the Board. Thus, a registered lobbyist who
has been paid to lobby the legislative or executive branch on a matter
relating to Board business is ineligible to serve _on the Board. The
question of whether any person engaged in lobbying activity is
ineligible under subsection 7.103(c) is a fact question that is
inappropriate to an attorney general opinion.
Absent a mechanism to cure a violation in subsection
7.103(c), we cannot advise that a member of the Board may cure his
or her ineligibility under the subsection.
Very truly yours,
Attorney General of Texas
-DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee