The Attorney General of Texas
July 29, 1983
JIM MATTOX
Attorney General
Honorable Gerald Hill opinion No. JM-50
Supreme Court Building
P. 0. Box 12546
Chairman
Austin, TX. 78711~2548 Elections Committee I&: Whether a corporation may
51214752501 Texas House of Representatives contribute to a non-profit
T&X 9101674-1367 P. 0. Box 2910 organization which serves as a
TelecoiYer 51214750266 Austin, Texas 78769 research arm of a legislative
csucus
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 Dear Representative Hill:
2141742-6944
You have requested our opinion as to whether a corporation may
4624 Alberta Ave.. Suite 160
contribute to a non-profit organization that conducts research for a
El paso. TX. 79905-2793 legislative caucus. You submitted as representative of the question a
9151533.3484 description of a contribution by a business corporation to such a
P non-profit corporation. We assume that your question relates only to
contributions by corporations organized or operating under authority
lLLo Dallas Ave.. Suite 202
Houston, TX. 77002-6966
of the Texas Business Corporation Act and to contributions that will
7131650-0666 be used by a non-profit corporation for nonpartisan research, the
subjects of which are suggested by a legislative caucus. We
understand that the research data and reports of the non-profit
606 Broadway, Suite 312 corporation are disseminated to all members of the legislature and
L”btxxk. TX. 79401.3479
other interested persons.
606/747-5238
In forming our opinion, we considered the possible effect of the
4309 N. Tenth, Suite B Texas Business Corporation Act, article 1349 of the Revised Statutes,
McAllen. TX. 76501-1665 the Political Funds Reporting and Disclosure Act, the Lobby Act, and
5121662-4547
Penal Code provisions dealing with bribery and corrupt influence.
200 Main Plaza, Suite 400 One aspect of your question concerns the authority of a business
San Antonio, TX. 78205-2797 corporation to make a gift of the corporation’s assets. Under general
5121225-4191 law, a corporation may make donations for the public welfare and for
purposes that are charitable, scientific, or educational, unless the
An Equal Opportunityl donation is inconsistent with limitations in the corporation’s
Affirmative Action Employer articles of incorporation. Bus. Corp. Act art. 2.02(A)(14), 2.02(B).
Contributions of the assets or property of a corporation, however, may
not be made to organizations that are in any manner or to any extent
directly or indirectly engaged in the following: (1) furthering the
cause of a political party; (2) aiding in the election or defeat of a
candidate for office; (3) aiding in defraying the expenses of a
candidate for office; or (4) defraying or aiding in defraying the
expenses of a political campaign or political headquarters. V.T.C.S.
art. 1349.
p. 212
Honorable Gerald Hill - Page 2 (JM-50)
7
we believe a non-profit research organization operating as you
described does not directly or indirectly participate in the election
of a candidate for office or further the cause of a political party.
Accordingly, a business corporation may make contributions of its
assets to a research organization. The fact that the research is
performed for a legislative caucus does not alter this conclusion.
The Political Funds Reporting and Disclosure Act, codified in
chapter 14 of the Texas Election Code, regulates political campaign
financing and contributions to candidates, officeholders, and
political committees. A contribution within the meaning of chapter 14
is something of value transferred to a candidate or political
committee with the intent that it be used in an election or
transferred to an officeholder for use in financing the duties and
functions of his office that are not reimbursable out of public money.
Elec. Code art. 14.01(D). Article 14.06 prohibits certain corporate
contributions, including contributions from a corporation organized or
operating under authority of the Business Corporation Act. The
article also prohibits a candidate, officeholder, or political
committee from knowingly accepting a corporate contribution. The
donations about which you inquire are not made by the corporation to s
candidate or officeholder, but to a separate research organization.
To be deemed a political committee, that research organization must
collect contributions or make expenditures for candidates to public
office or for officeholders. Elec. Code art. 14.01(O). See also
Attorney General Opinions MW-48 (1979); H-743 (1975); H-486, H-252
(1974); H-189 (1973). Since the Political Funds Reporting and
Disclosure Act is a penal statute that requires strict construction,
we do not believe that the dissemination of information based on the
organization's nonpartisan research and study constitutes a prohibited
contribution or expenditure under article 14.06 of the Election Code.
e State v. Duke, 137 S.W. 654, 655 (Tex. 1911); Texas State Board of
Medical Examiners v. McClellan, 307 S.W.2d 317 (Tex. Civ. App. -
Houston 1957, writ ref'd n.r.e.). Further, section 14.06 expressly
authorizes corporations to make contributions or expenditures to
support or oppose measures, which are defined as proposals "submitted
to the people for their approval or rejection at an election,
including any proposed law, Act or part of an Act of the legislature,
revision of or amendment to the constitution." See Elec. Code art.
14.01(M); First National Bank of Boston v. Bellxi, 435 U.S. 765
(1978); Attorney General Opinions MW-48 (1979); H-1175 (1978).
The Lobby Act, article 6252-9c, V.T.C.S., requires persons,
including corporations, to register as lobbyists and report their
contributions if they make certain expenditures and communications to
influence legislation. Id. §3. The contribution or expenditure is
not prohibited, but must be reported to the secretary of state. This
office several times has reiterated the following:
The Lobby Act, as a penal statute, is carefully
drafted to reach only those persons who make
p. 213
Honorable Gerald Hill - Page 3 (JM-50)
contributions or expenditures for 'communicating
directly' with one or more members of the
Legislative or Executive branches to influence
legislation. Section 1 states the policy of the
Lobby Act to be the public disclosure of
activities and expenditures made to urge 'specific
actions' with respect to legislation.
Attorney General Opinions MW-48 (1979); H-252 (1974). For purposes of
the Lobby Act, "direct communication" with members of the legislative
or executive branches means a "contact in person or by telephone,
telegraph, or letter." V.T.C.S. art. 6252-9c, 52(S). Therefore, it
is consistent with prior opinions of this office to conclude that
corporate contributions to a non-profit corporation for nonpartisan
research on subjects suggested by a legislative caucus are not lobby
expenditures for purposes of article 6252-9c. See Attorney General
Opinions MW-48 (1979); H-743 (1975); H-486, H-252 (1974); H-191
(1973).
Certain conduct similar to lobbying could constitute a crime if
it included the elements of bribery or other offenses under chapter 36
of the Texas Penal Code, such as intentionally or knowingly offering,
conferring, soliciting, or accepting a pecuniary benefit as
consideration for the recipient's decision, opinion, recommendation,
vote, or other exercise of discretion as a public servant or party
official. See Tex. Const. art. XVI, 841; Penal Code §§36.01, 36.02,
36.08(f), 36.10; Attorney General Opinion H-265 (1974). In our
opinion, the factual situation that you presented does not involve
violations of chapter 36 of the Texas Penal Code dealing with bribery
and corrupt influence.
SUMMARY
A contribution by a business corporation to a
non-profit organization conducting non-partisan
research for a legislative caucus is not
necessarily prohibited by or subject to the Texas
Business Corporation Act, article 1349 of the
Revised Statutes, the Political Funds Reporting
and Disclosure Act, the Lobby Act, or chapter 36
of the Texas Penal Code.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
p. 214
. . .
Honorable Gerald Hill - Page 4 (JM-50)
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
David Brooks
Colin Carl
Susan Garrison
Nancy Sutton
p. 215
Untitled Texas Attorney General Opinion
Combined Opinion