Untitled Texas Attorney General Opinion

The Attorney General of Texas
March 17, 1980
MARK WHITE
Attorney General

Colonal James R. Adams, Director Opinion No. RW-14 9
Texas Department of Public Safety
5805 N. Lamar Boulevard Re: Constitutionality of prahibi-
Austin, Texas 78773 tions of political activity by
Department of Public Safety
Employees.

Dear CoL Adams:
You have requested our opinion regarding the constitutionality of
section (2), article 4413(S), V.T.C.S., and you ask whether certain activities
are prohibited by the statute. The statute provides in pertinent part:

. . . No person in the Department shall contribute any
money cr other thing of value for political purposes,
nor shall any person in the Department engage in
political activities or campaign for or against any
candidate for any public office in this state. Any
perscm violating any provision of this subsection shall
forfeit his position with the Department.

You first ask whether such a limitation on political activity is
constitutional.

The Supreme Court tws held that political activity of public employees
may be restrained. United Public Workers of America v. Mitchell, 330 U.S.
75 (1947). A statute regulating political activity of public employees does
not fail for vagueness even though it does not specify every type of activity
prohibited. United States Civil Service Commission v. National Association

. . . may be susceptible of some other improper
applications . . . [Wle do not believe that [the
statute] must be discarded in toto because some
persons* arguably protected corixay or may not
be caught w chilled by the statute.
, -
-”

Colonel James B. Adams - PageTwo (MW-149)

413 U.S. at 618. We conclude that section (a), article 44113(S),V.T.C.S., is constitutional. It
must, however, be construed so as not to infringe upon areas of protected con@ct.

Prohibitions against political activity by public employees are commcn. See, e.g.
The Hatch Act, 5 U.S.C. SS 1501 et. seq.; V.T.C.S. arts. 895(c) S 34 1269(m) S 22; 3207(ef
The obvious purpose of such statutes is to isolate political interests of employees from the
public interest in en efficient public service. United Public Workers v. Mitchell, 330 U.S.
75, 99 (l947), quoted in United States Civil Service Commission v. National Association of
Letter Carriers, 413 U.S. 548; 555 (1973); Attorney ~General 0 pinion M-1099 (l972L T this
end, Attorney General Opinion M-1099 Q972) construed a prohibition s&in&
“participat[ionl in any politicaLactivity” (V.T.C.S. art. 695c, S 31, applicable to the State
Department of Public Welfare) as prohibiting only partisan political activity. Section (21,
article 4413(S), V.T.C.S., similarly forbids employees of the Department of Public Safety
from engaging only in partisan political activities.

You next ask what effect, if any, the Texss Constitution, article XVI, sections 33
and 40 may have insofar as this statute is concerned.

Section 33 prohibits compensation to persons holding more than one civil office,
while section 40 prohibits holding more than one such office, sub&et to the following
exception:,

. . . State employees . . . shsll not be barred from serving as
members qf the governing bodies of school districts, cities,
towns, or other local governm+ntal districts; provided,
however, that such State employees or other individuals
shall receive no salary for serving as members of such
governing bodies. . . .

Article XVI, section 40 of the Texss Constitution protects state employees from dismissal
on the grounds that they are candidates for one of the specified local offices or hold such
an office. Attorney General Opinion H-659 (1975). The activity is protected and thus not
prohibited by section (2), article 4413(S), V.T.C.S.

You next ask:

Can an employee of the Texas Department of Public Safety tier
this statute be a member of an organization which:

a) endorses a political candidate;
b) ,actively supports a political candidate by either working in
the candidate’s campaign or contributing funds to the
candidate; or
c) contributes to and supports another organization which
actively endorses and warts a political candidate?

Would the answer to the whole question be any different if the
employee took no part in the activities of either the perent
organization or the organization supporting the candidate?

P. 478
.’ .

Colonel James B. Adams - PageThree (MW-149)

Article 4413(S), V.T.C.S., does not address membership in cfganizathms. It ‘merely
prohibits individu& from engag@ in political activity. We believe that the statute does
not necessarily prohibit membership or activity in an organixation which endorsea
candidates. The prohibitian sgainst engqing in political activity would, however,
preclude a Department of Public Safety employee from actively participating in the
orrzanixationO activities which are designed to further a partisan candidate’s Campaign.
usper v. Pontikes, 414 U.S. 51, 56-57 (l973);
391 U.S. 563 (l968); NAACP v.
u976).
The purpose of article 4413(S), V.T.C.S., to isolate the partisan pohtical interests of
employees from the public interest in an efficient public service, does not prohibit
membership alone in a political organization or a group which ,supports such ~I’I
organization.

You next ask:

Can an employee work in a political candidate’s campaign (by
giving speeches, making contributions, making telephone calls,
transporting voters to the polls, and other related activities)?

We believe that the language of article 4413(S), section (2x V.T.C.S., as stated below,
prohibits such activity in partisan political campaigns:

. . . No person . . . shall. . . campaign forcc against any candidate
for any public office in this state.

You next ask whether an employee can run for a paid political office.

An employee of the Department may not accept compensation forholding any
political office, but may run for and hold those offices specified in article XVI, section 40
of the Texas Constitution. An employee, however, is prohibited by article 4413(S), section
2, V.T.C.S., from running for a partisan political office unless the office ,is one covered by
article XVI, section 40. See Broaderick v. Oklahoma, 413 U.S. SOI, 617; Willis V. City of
Fort Worth, 380 S.W.2d 81mex. Civ. App. - Fort Worth 1964, writ ref’d M.e.)j Ramirez
Plores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ r&d nr.e.)i m
&iiGZOpiniat H-659 (1975).

You next ask:

officers must take the constitutional oath of office (Art. XVI,
‘se;. 1). Is there anything in this oath of office that either permits
or forbids political activity?

Section 1, article XVI of the Texas Constitution is

&signed to promote the selection of appointees on the basis of
merit only, and to assure that no officer has purchased his position

P. 479
Colonel James 8. Adams - PaSsPour (MW-149)

by promises ofdirect or indirect reward to those responsible for his
selection

Attorney General Opinion H-1027 (l977) at 2. An appointee may not engage in polltical
activity as direct or indirect payment for his selection.

YOUIWZXtMkZ

We would also like to know whether the Hatch Act (5 U.S.C.A.
Sec. 1501, et. seq.) would have any effect on your answers Q any of
the situations set out above?

Employees of tha Department of Public Safety are subject to 5 U.S.C. section 1502 since
federal funds are used by the Department. welhardt v. United States Civil Service
Commission, 197 F. Supp. 866 (Ala. 19611,m 304 F.2d 882 (5th Cir. l962). Secti l502
prohibits certain political activities by state employees, but is not intended to pmgpt or
supersede any state law, regulating political activities. 1974 U.S. congress &
Administration News 5587,566s.

SUMMARY
Section(21, article 4413(S), V.T.C.S., which limits political activity
by Department of Public Safety personnel is constitutional.

MARK WHITE
Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Bob Gammage
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
David B. Brooks

p. 480
,

Coionel James R. Adams - Page Five (m-149)

Rob Gammage
Susan Garrison
Rick Gilpin
William G Reid

p. 481