The Attorney General of Texas
September 22, 1980
MkRK WHITE
Attorney General
Honorable James B. Adams Opinion No. NW-2 4 3
Director
Department of Public Safety Re: ,Political activities of Depart-
5805 N. Lamar Boulevard ment of Public Safety officers
Austin, Texas 78773
Dear Mr. Adams:
You ask whether commissioned officers of the Texas Department of
Public Safety are eligible for appointment as a judge, clerk, or watcher of an
election mder article 3.04 of the Election Code. Article 3.04 provides, in
pertinent part:
Except ss otherwise provided herein, no cne who
holds an office of profit op trust under.. . this
12x hl(u Ave..suite202 state. . . shall act as judge, clerk, or watcher of any
Hanton.TX.77ooz election, general, speci& or primary. . . .
71- -..
..
Courts have held that policemen are public officers. Sawyer v. City of
San Antonio, 234 S.W. 2d 398 (Tex. 1950). Along with deputy sheriffs and
constables, they hold offices of trust or profit. Attorney General Opinion H-
1027 (1977). Article 2.12 of the Code of Criminal Procedure provides that
rangers and officers commissioned by the Department of Public Safety sre
peace officers. Accordi@y, we think it is clear that commissioned officers
of the Department of Public Safety hold an “office of trust or profit” within
the meaning of article 3.04 of the Election Code. They are therefore
ineligible to Serve as a judge, clerk, or watcher of a general, special, or
primary election.
You also ask whether employees and officers of the department may
place bumper stickers endorsing political candidates on their personal
automobiles, place campaign signs in their yards, or wear badges endorsing
political candidates while on or off duty.
Article 4413(g), section (2), V.T.C.S., provides that:
No person in the Department shalL . . engage in
political activities or campaign for or against any
candidate for any public office in this State. Any
person violating any provision of this subsection shell
fafeit his position with the Department.
p. 766
Honorable James B. Adems - Page Two (I’tw-243)
Attorney General Opinion MW-149 (1979) held that section (2) is constitutional,
proviocd that it is construed “so as not to infringe upon areas of protected conduct.”
See also Attorney General Opinion M-1099 (1972) (construing similar provision
applicable to Department of Public Welfare). The purpcce of prohibitions like those
found in article 4413(g) is to promote the efficiency and integrity of public service.
United States Civil Service Commission v. National Associationof ictter Carriers, 413
U.S. 548, 555 (1973); United Public Workers v. Mitchell, 330 U.S. 75 (1947); Gray v.
Toledo, 323 F. Supp. 1281 (N.D. Ohio 1971). Attorney General Opinion MW-149 noted
that article 4413(g) does not necCSSarib prohibit membershin in a Dolitical orcanization
or a group which slpports such an organization, but held that- employee; may not
legally work in a political candidate’s campaign by giving speeches, making
contributions and telephone calls, or engaging in similar activities.
The display of yard signs and bumper stickers and the wearing of badges
endorsing political candidates may be political activities within the meaning of section
(Z), article 4413(g), but they may also be expressions of personal opinion protected by
the First Amendment. The Supreme Court has not considered whether a state may
constitutionally prohibit its employees from wearing political buttons or displaying
bumper stickers. In Broadrick v. Oklahoma, 413 U.S. 601 (l973), the court suggested
that a rule banning political buttons or bumper stickers might be impermissible, but did .
not reach this issue. 413 U.S. at 617, 622. The employee in question had engaged in
fund raising, which the state could constitutionally prohibit. See also Connealy v.
m, 412 F. Supp. 146 (W.D. MO. 1976).
~ ..
-. . The Hatch Act reserves to federal employees the right to vote and to express
opinions on political subjects and candidates. 5 U.S.C. §7324(b). Federal regulations
interpret this provision as permitting employees to display a political picture, sticker,
badge or button. 5 CFR S733.1lL
In cur opinion, section (2) of article 4413(g) should not be construed as prohibiting
an employee from wearing a political button while off duty, placing a campaign sign in
his yard, or displaying a bumper sticker in his private automobile which is not used on
state business. Broadrick raises a question as to whether these activities constitute
protected conduct. Such private and passive expressions of political opinion would
seem, moreover, to have only a minimal effect, if any, on the efficiency and integrity
of the public service. Finally, a prohibition against bumper stickers and yard signs in
many cases would reach political expressions by a state employee’s spouse who owns a
community property interest in the house or car. We will avoid construing article
4413(g) to. prohibit conduct which appears to be protected by the First Amendment.
Accordingly, employees of your agency may legally display partisan political emblems
while off duty.
The wearing of a political button while on duty, and the display of a bumper
sticker on an automobile used on state business, raise different questions. Courts have
found valid state interests in forbidding this kind of conduct MI the job. In Smith v.
United States, 502 F. 2d 512 (5th Cir. 1974), a psychologist challenged his dismissal
from the staff of a Veterans Administration hospital for wearing a peace button while
treating veterans. The court upheld the firing because display of the button, although
. p. 767
.f<. ’ .
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Honorable James B. Adams - Page Three (HI+243)
symbolic speech protected by the First Amendment, resulted in substantial inter-‘.“‘
ference with the employee’s duties. In another case, a social worker who counseled
juvenile probationers at their homes and schools was dismissed for displaying a partisan
bumper sticker on the personal car she &ove to these interviews. Connealy v. Walsh,
412 F. Supp. 146 (W.D. MO. 19761. The court held that this expression of opinion could
be forbidden because it would interfere with her job effectiveness.
.
We believe that section (2) of article 4413(g) should be construed to prohibit the
display of political buttons whIIe on drty and of bumper stickers on cars used in
connection with work when such activities will interfere with the effectiveness of your
employees.
Your last question is whether officers and employees of the department may
serve as officers of local, state a national conventions. Article 13.34(b) of the
Election Code provides that:
No person shall be ineligible to serve as a delegate to any
county, senatorial distirct, state or national convention of any
political party by reason of his holding any public office.
You advise that the department has interpreted article 13.34(h) as applyiq to
” employees as well as to officers. We believe this is a reasonable construction. We can
think of 110reason why the legislature would have intended to permit public officers to
participate in conventions as delegates but not allow employees to dc so, and we dc not
think article 13.34(h) should be construed in that manner.
A literal construction of article 13.34(h) would alsc produce the rather odd result
that individuals could serve ss delegates to conventions but not be eligible for any of
the offices which convention delegates hold Convention officers are chosen from the
body of delegates, and we do not think the legislature intended to permit individuals to
serve as delegates but then limit them strictly to that role. Accordingly, we conclude
that although article 13.34(h) refers to “delegates,” that pmvision creates an exception
to the general prohibition against participation in political activity set forth in article
4413(g), V.T.C.S., which should be liberally construed to permit individuals to perfarm
any functions and be eligible for any pasitions which convention delegates typically
hold Thus, the answer to your question is that officers and employees of the
department may serve as officers of local, state and national conventions.
SUMMARY
Commissioned officers of the Department of Public Safety
are ineligible to serve as a judge, clerk, or watcher of a general,
special, or primary election tmder article 3.04 of the Election
Code. Section (2) of article 4413(g), V.T.C.S., does not prohibit
officers and employees of the department from placing bumper
stickers endorsing candidates for political office on their
personal automobiles, placing campaign signs in their yards, or
P. 760
. .
Honorable James B. Adams - Page Four (Mw-243)
wearing badges endorsirg political &mdi&tes whiie off duty,
but does prohibit them from displaying partisan bumper stickers
or political buttons while an &rty when such conduct would
interfere with their effectiveness as public employees. Officers
and employees of the department may serve as officers of
political party conventions.
.
&Zy&l
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Jon Bible 61Susan Garrison
Assistant Attorneys General
APPROVED:
OPmIGN COMMlTTEE .
. -
-* . C. Robert Heath, Chairman
Jim Allison
Jon Bible
Susan Garrison
Rick Gilpin
.