Can a Texas Lottery Commission member solicit political contributions as a private citizen?

Plain-English summary

The Texas Lottery Commission's executive director asked the Attorney General about a free-speech problem facing the commission's members. A statute, Government Code section 467.025(a)(5), says a commissioner 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 purposes." The director wanted to know whether that bar applied to a commissioner acting as a private citizen, away from the job, who wanted to ask friends to give money to a candidate or to recommend that they do. And if it did apply, did such a restriction violate the First Amendment?

On the first question, the office said the statute reaches a commissioner's personal political activity, not just official acts. It pointed out that the neighboring provision, subsection (a)(4), is written to cover only a member's "official authority" to affect an election. Because the legislature limited that subsection to official conduct but did not similarly limit subsection (a)(5), the office read (a)(5) as covering both official and personal conduct. So a commissioner was barred from advising someone to make a political contribution even on his or her own time.

The statute's wording prohibits coercing, commanding, or advising a contribution, but it does not use the word "solicit." The office still read the ban to cover soliciting. Its reasoning was that the Texas legislature lifted the operative phrase straight out of the federal Hatch Act (5 U.S.C. section 1502(a)(2)), and a federal court had already read the Hatch Act language to cover solicitation. To keep the state and federal provisions in step, the office construed section 467.025(a)(5) the same way. The upshot: a commissioner could not solicit political contributions either, in an official or a personal capacity.

On the constitutional question, the office concluded a court probably would not strike the statute down on its face. It leaned on two United States Supreme Court decisions upholding restrictions on the political activity of government workers (Broadrick v. Oklahoma and the Letter Carriers case), which hold that a law regulating conduct as well as speech is not facially overbroad unless the overbreadth is "substantial," and is not void for vagueness if an ordinary person can understand it. The office did add an important caveat: while the statute survived a facial attack, particular applications of it might still be unconstitutional, and that had to be sorted out case by case.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion read Government Code section 467.025(a)(5) as it stood in 1996, three years after the Lottery Commission's enabling statute was enacted. The section numbers, the membership rules, and the constitutional case law on public-employee political activity can all change. The federal Hatch Act provisions the office relied on were themselves amended in 1993 and have been amended since. Read this page for the office's 1996 reasoning, and verify the current Government Code and the current First Amendment case law before relying on any specific rule.

What the opinion meant at the time

For Texas Lottery commissioners: The opinion meant the political-activity bar followed the commissioner home. Advising or soliciting a political contribution was off limits whether the commissioner was acting in an official role or purely as a private citizen, and a violation exposed the member to removal by the governor.

For other appointed state officials: The opinion turned on a drafting comparison (subsection (a)(4) was limited to "official authority," subsection (a)(5) was not) and on the statute's federal Hatch Act ancestry. Officials governed by similarly worded statutes copied from the Hatch Act could expect the same reading: the restriction reaches personal as well as official conduct, and "advise" was read to include "solicit."

For lawyers and anyone weighing a challenge: The opinion held the ban was not facially unconstitutional as a matter of law, relying on Broadrick v. Oklahoma and United States Civil Service Commission v. National Association of Letter Carriers. But it expressly left the door open to as-applied challenges: whether the statute was overbroad or vague in a particular situation had to be decided case by case, not resolved in the abstract.

Common questions

Could a Texas Lottery commissioner ask people to donate to a candidate on personal time?
Under this opinion, no. The office read section 467.025(a)(5) to apply to a commissioner's personal conduct as well as official conduct, so soliciting or advising a political contribution was barred even when the commissioner was acting as a private citizen.

The statute says "advise," not "solicit." Did it really cover asking for money?
The office said yes. It found the legislature had copied the operative phrase from the federal Hatch Act, which a federal court had already read to cover solicitation. To keep the two laws consistent, the office construed the Texas provision to reach solicitation too.

Why did the office read the ban to cover personal conduct at all?
Because of how the surrounding subsections were written. Subsection (a)(4) was expressly limited to a member's "official authority." Subsection (a)(5) had no such limit. The office reasoned that if the legislature had wanted to confine (a)(5) to official conduct, it knew how to say so, and it did not.

Did the office say the restriction was constitutional?
It said a court probably would not strike the statute down on its face, citing Supreme Court decisions that upheld limits on government workers' political activity. It did not give the statute a clean bill of health: it noted that specific applications of the ban could still be unconstitutional, to be judged case by case.

What happened to a commissioner who broke the rule?
The statute made a member who violated these prohibitions subject to removal by the governor (Government Code section 467.026(a)(3)).

Background and statutory framework

Government Code section 467.025(a) lists conduct prohibited to members of the Texas Lottery Commission, including accepting certain outside employment, playing the lottery or bingo, taking lottery or bingo winnings, using official authority to affect an election (subsection (a)(4)), and the political-contribution bar in subsection (a)(5). A member who violates these prohibitions is subject to removal by the governor under section 467.026(a)(3).

The office's reading of subsection (a)(5) rested on two moves. First, it compared (a)(5) with (a)(4). The legislature limited (a)(4) to a member's "official authority" but wrote (a)(5) without that limitation, which the office took to mean (a)(5) covers both official and personal conduct. Second, it traced (a)(5) to its source. The phrase "directly or indirectly coerce, attempt to coerce, command, or advise" appears verbatim in 5 U.S.C. section 1502(a)(2), part of the federal Hatch Act, enacted in 1940. The Lottery Commission's version was enacted in 1993. Because the state legislature lifted the phrase from the federal law, the office construed the state statute consistently with it, and since a federal court (Bauers v. Cornett) had read the Hatch Act language to reach solicitation, the office read section 467.025(a)(5) the same way.

On the constitutional question, the office applied the public-employee speech framework from Pickering v. Board of Educ.: the government must balance an employee's interest in commenting on matters of public concern against the state's interest, as an employer, in the efficiency of its public services. The office said that framework also applies to government officers, especially appointed ones. It then turned to overbreadth and vagueness. Broadrick v. Oklahoma upheld an Oklahoma restriction on classified employees' political activity, holding that a statute regulating conduct as well as speech is facially overbroad only if the overbreadth is "substantial," judged against the statute's legitimate sweep, and that lesser overbreadth should be cured case by case. The Letter Carriers decision similarly upheld the federal restriction against vagueness and overbreadth challenges and confirmed that Congress may restrict federal employees' right to solicit political contributions. Drawing on these authorities, the office concluded a court would not find section 467.025(a)(5) facially unconstitutional, while leaving as-applied challenges to be resolved on their facts.

Citations

Constitutional and statutory provisions discussed:

• U.S. Const. amend. I (free speech)
• Government Code § 467.025(a) (prohibited conduct for commission members), including § 467.025(a)(4) (use of official authority to affect an election) and § 467.025(a)(5) (political contributions)
• Government Code § 467.026(a)(3) (removal of a member by the governor)
• Government Code § 556.004(a)(2) (1983 predecessor statute barring state employees from coercing political contributions)
• 5 U.S.C. § 1502(a)(2) (Hatch Act provision the state statute was patterned after)
• 5 U.S.C. § 7324(a) (Hatch Act provision on partisan political activity, amended 1993)

Cases cited:

• Bauers v. Cornett, 865 F.2d 1517, 1520 (8th Cir. 1989) (Hatch Act language reaches solicitation)
• Pickering v. Board of Educ., 391 U.S. 563, 568 (1968) (balancing test for public-employee speech)
• Broadrick v. Oklahoma, 413 U.S. 601, 605-06 (1973) (restriction on classified employees' political activity not facially overbroad)
• United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579 (1973) (federal political-activity restriction not vague or overbroad)
• United States v. Harriss, 347 U.S. 612, 618 (1954) (vagueness standard)
• Smith v. Goguen, 415 U.S. 566, 573 (1974) (heightened specificity where a statute reaches protected expression)
• McNea v. Garey, 434 F. Supp. 95, 106 (N.D. Ohio 1976) (vagueness of heightened concern for speech-impinging statutes)

Attorney General opinion cited:

• DM-42 (1991) (this office generally cannot definitively resolve fact-bound issues absent judicial guidance)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0408
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0408.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 29, 1996

Ms. Nora A. Linares
Executive Director
Texas Lottery Commission
P.O. Box 16630
Austin, Texas 78761-6630

Opinion No. DM-408

Re: Whether Government Code section 467.025(a)(5) prohibits a member of the Texas Lottery Commission from, in his or her capacity as a private citizen, soliciting contributions or advising a contribution to a political candidate, and related question (RQ-882)

Dear Ms. Linares:

Government Code section 467.025(a)(5) provides that a member 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 purposes." You ask whether section 467.025(a)(5) prohibits a commissioner, acting in an unofficial, personal capacity, from participating in the political process by either individually, or as a member of a group, soliciting or advising contributions be made to political candidates. If it does, we understand you to ask whether section 467.025(a)(5) contravenes the First Amendment of the United States Constitution.

Section 467.025(a)(5) expressly prohibits a commissioner from advising a person to make a political contribution, and by its terms, the section encompasses unofficial, as well as official, conduct. In addition, although section 467.025(a)(5) does not explicitly prohibit a commissioner from soliciting a political contribution, we construe the statute to preclude it. The section thus prohibits a commissioner from soliciting a political contribution in his or her personal capacity. Finally, we do not believe a court would find section 467.025(a)(5) unconstitutional on its face, although certain applications of the statute may be unconstitutional.

We begin by briefly describing the provision in question. Government Code section 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];

(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 official authority to affect the result of an election or nomination for public office; or

(5) directly or indirectly coerce, attempt to coerce, command, 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] Because 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)(5) to conduct in the member's official capacity if the legislature 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. Furthermore, while the terms "coerce," "command," and "advise" may imply a relationship in 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 Hatch 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[4] to "directly or indirectly coerce, attempt to coerce, command, or advise" another state or local officer 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 Commission's counterpart was enacted in 1993,[6] we believe the state legislature lifted the quoted phrase 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 solicitation of funds.[7] We accordingly construe Government Code section 467.025(a)(5) to prohibit soliciting, as well as coercing, commanding, or advising a political contribution. Section 467.025(a)(5) thus forbids a member of the Lottery Commission to solicit contributions in either the member's official or unofficial capacity.

You are concerned that, if Government Code section 467.025(a)(5) applies to a commissioner's unofficial conduct, the statute may violate the First Amendment to the United States Constitution. In essence, you suggest that section 467.025(a)(5) unconstitutionally 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 special interest in regulating its employees' speech.[8] Nevertheless, to constitutionally regulate its employees' speech, the government successfully must balance the interests of an employee, 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 individual. Because such an issue is necessarily fact-bound, this office generally is unable to definitively resolve the issue absent definitive judicial guidance.[10] 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.

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 organization, candidacy, or other political purpose."[11] 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 overbroad.[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 overbroad only if the overbreadth is substantial, "judged in relation to the statute's plainly legitimate sweep."[14] 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.[15]

Furthermore, the Court found, the Oklahoma State Personnel Board and Attorney General had construed the statute to prohibit only "clearly partisan political activity."[16] 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, unconstitutional on its face."[17]

Similarly, courts have refused to strike a statute as unconstitutionally vague if "the ordinary person exercising ordinary common sense can sufficiently understand and comply . . . ."[18] Thus, a court will not strike as vague a statute, the terms of which plainly encompass "[t]he general class of offenses to which the provisions are directed . . . , even though marginal cases could be put where doubts might arise."[19] In United States Civil Service Commission v. National Association of Letter Carriers, for example, the United States Supreme Court considered a constitutional challenge to a federal law[20] that prohibited a federal employee from actively participating "in political management or in political campaigns."[21] The Court concluded that the statute was not impermissibly vague.[22] Additionally, the Court determined that the statute was not substantially overbroad.[23] Moreover, in that case the United States Supreme Court stated that Congress constitutionally 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.[24]

In view of Broadrick and the other authorities cited above, we do not believe a court would find Government Code section 467.025(a)(5) unconstitutionally overbroad or vague on its face and as a matter of law. Like the state's interest in regulating classified civil service employees, discussed in Broadrick, 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.[25] The extent to which section 467.025(a)(5) 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 member 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 purposes" applies to activities of commissioners both in their official and personal capacities. Section 467.025(a)(5) expressly prohibits a commissioner from advising a potential donor to contribute to a political cause, and it implicitly prohibits a commissioner from soliciting a contribution.

A court probably would not find section 467.025(a)(5) unconstitutional on its face and as a matter of law.

Yours very truly,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

Footnotes:

[1] Gov't Code § 467.026(a)(3).

[2] Compare WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 59, 256, 264 (1990) (defining "advise," "coerce," and "command," respectively) with id. at 1122 (defining "solicit").

[3] 5 U.S.C. ch. 15.

[4] See 5 U.S.C. § 1501(4); Bauers v. Cornett, 865 F.2d 1517, 1520 (8th Cir. 1989).

[5] Act of July 19, 1940, ch. 640, 54 Stat. 767 (1940) (codified as amended at 5 U.S.C. § 1502).

[6] See Act of May 11, 1993, 73d Leg., R.S., ch. 284, § 1, 1993 Tex. Gen. Laws 1299, 1300. In 1983, the legislature had enacted a similar statute, prohibiting a state employee from "coerc[ing], attempt[ing] to coerce, command[ing], restrict[ing], attempt[ing] to restrict, or prevent[ing]" a contribution for a political purpose. See Act of May 28, 1983, 68th Leg., R.S., ch. 579, § 3, 1983 Tex. Gen. Laws 3763, 3764, codified as Gov't Code § 556.004(a)(2).

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

[8] Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

[9] Id.

[10] See Attorney General Opinion DM-42 (1991) at 2-3.

[11] Broadrick v. Oklahoma, 413 U.S. 601, 605-06 (1973). We note that the statute at issue in Broadrick was not limited to a classified service employee's on-the-job or job-related conduct. See id. at 603 n.1, 605-06.

[12] Id. at 610.

[13] Id. at 615.

[14] Id.

[15] Id. at 615-16.

[16] Id. at 617.

[17] Id. at 618.

[18] United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579 (1973).

[19] Id. (quoting United States v. Harriss, 347 U.S. 612, 618 (1954)). Statutory vagueness is a concern under First Amendment due-process principles. Id. Because a vague statute may chill protected speech, however, vagueness is of heightened concern in statutes impinging on speech. See McNea v. Garey, 434 F. Supp. 95, 106 (N.D. Ohio 1976). "When a statute's literal scope, unaided by a narrowing state-court interpretation, is capable of reaching expression sheltered by the First Amendment, the [due-process] doctrine demands a greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S. 566, 573 (1974).

[20] 5 U.S.C. § 7324(a) (amended 1993). The portions of 5 U.S.C. § 7324(a) that the National Association of Letter Carriers Court quoted were omitted in the revisions to the Hatch Act made by section 2(a) of Pub. L. No. 103-94.

[21] Id. at 550.

[22] Id. at 579-80.

[23] Id. at 580.

[24] See National Ass'n of Letter Carriers, 413 U.S. at 550 (quoting 5 U.S.C. § 7324(a)(2), amended 1993). In National Association of Letter Carriers the Court held that Congress may prevent federal employees from holding a party office, working at the polls, and acting as party paymaster for other party workers. Id. at 556. Thus, the statute at issue was valid. Id. Furthermore, the court stated that the statute would be valid even if it plainly and unmistakably forbade other partisan political activities, including "actively participating in fund-raising activities for a partisan candidate or political party." Id. As the court stated, "neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees." Id. The Supreme Court continued by summarizing the history of governmental restriction of its employees' partisan political activity. See id. at 557-63. According to the Court, that history goes back at least as far as Thomas Jefferson, who was, as president, disturbed by the political activities of some of the employees of the executive branch. Id. at 557 (citing 10 J. RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 98 (1899)).

[25] (Citation in the scanned source is not legible.)

[26] See Broadrick, 413 U.S. at 615-16.