Can a Texas state university let an outside faculty or staff group use its campus mail system for free?

Texas AG Opinion JM-1091: Can Outside Faculty Groups Use Campus Mail?

Plain-English summary

The President of the University of Texas System asked the Attorney General whether a faculty or staff organization that a university official had certified as "academically relevant to the educational mission" could be allowed to use the campus mail service for free, without running afoul of either the Texas Constitution or the federal statutes that protect the U.S. Postal Service's monopoly. The opinion assumed the question was about outside groups: organizations the university neither supports nor sponsors, but whose activities it has recognized as academically relevant.

On the Texas constitutional question, the opinion started from a simple point: the campus mail system is public property, and article III, section 51 of the Texas Constitution bars gifts of public money or property to individuals or private associations. That does not mean a private group can never use public property. Such use is allowed when it serves a public purpose and there are controls to make sure the public purpose is actually achieved. The university decides, in the first instance, whether a given use serves a public purpose. The key holding is that certifying a group as "academically relevant to the educational mission" is not the same thing as finding that a particular mailing by that group serves a public purpose. The same group might send one kind of mail that serves a public purpose and another kind that does not.

On the federal question, the opinion walked through the Private Express Statutes (18 U.S.C. sections 1693 to 1699 and 39 U.S.C. sections 601 to 606), which generally forbid private carriage of letters over postal routes without paying postage. The Supreme Court had recently addressed the university-mail problem in the Regents of Univ. of California case, and the opinion applied that decision to three possible exceptions. The "letters-of-the-carrier" exception (for mail relating to the carrier's own current business) is narrow and requires a very close connection between the university's business and the content of the letters, so an academic-relevance finding does not by itself bring a group's letters within it. The "private-hands" exception applies only when the carrier receives no compensation of any kind from the sender. And a Postal Service regulation, 39 C.F.R. section 320.4, suspends the postal monopoly to let colleges carry the letters of their own bona fide student or faculty organizations to campus destinations, but it reaches only organizations affiliated with the university. Whether a specific group's mail fits any of these is a fact question governed by federal law, and the opinion suggested directing those questions to the Postal Service, which issues advisory opinions on the point.

Currency note

This opinion was issued in 1989. 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.

The federal Private Express Statutes and the Postal Service regulations in title 39 of the Code of Federal Regulations have been revised since 1989, and the public-purpose doctrine under article III, section 51 of the Texas Constitution has continued to develop in the Texas courts. Anyone dealing with a present-day question about outside groups using a public university's mail or other facilities should work from current federal postal rules and current Texas case law rather than the 1989 provisions described here.

Who this opinion affected (as of 1989)

Public universities: The opinion meant a university could not treat its "academically relevant" certification as automatic permission to use campus mail. Before letting an outside group use the system, the university had to make a separate, use-specific finding that the mailing served a public purpose, and had to keep controls in place to ensure it did.

Outside faculty and staff organizations: Groups that were recognized as academically relevant but were not university-sponsored learned that recognition alone did not entitle them to free campus mail. Their access depended both on a public-purpose finding under state law and on fitting a federal Private Express Statutes exception.

University mail administrators: The opinion pointed them toward the U.S. Postal Service for the federal fact questions, noting the Postal Service issues advisory opinions under parts 310 and 320 of the Code of Federal Regulations on whether particular carriage is permitted.

Common questions

Is campus mail considered public property in Texas?
Yes. The opinion treated a state university's campus mail system as public property, which is why letting a private group use it raised a question under article III, section 51 of the Texas Constitution.

Does calling a group "academically relevant" let it use campus mail?
No, not by itself. The opinion held that a finding that a group is "academically relevant to the educational mission" is not the equivalent of a finding that a particular use of campus mail serves a public purpose. The public-purpose finding is separate and use-specific.

Doesn't federal law also restrict who can carry letters?
Yes. The federal Private Express Statutes generally prohibit private carriage of letters over postal routes without paying postage. A university mail system operates under narrow exceptions, and whether a given group's letters qualify is a fact question under federal law.

What is the "private-hands" exception?
It is a federal exception allowing letters to be carried by private hands "without compensation." The opinion, following the Supreme Court, read it to apply only when no benefit of any kind flows from the sender to the carrier.

Who decides whether a specific group's mail qualifies?
For the state public-purpose question, the university decides in the first instance. For the federal questions, the opinion recommended seeking an advisory opinion from the U.S. Postal Service, which issues them under 39 C.F.R. section 310.6.

Background and statutory framework

The request came from the University of Texas System and concerned faculty or staff organizations certified by a university official as academically relevant to the educational mission but neither supported nor sponsored by the university. See Attorney General Opinion H-511 (1975) (use of university facilities by student organizations with religious affiliation).

On the state constitutional question, article III, section 51 provides that the Legislature shall have no power to make grants of public money to any individual or association of individuals. It has been construed to prohibit donations of public property as well as public funds. Rhoads Drilling Co. v. Allred, 70 S.W.2d 576, 582 (Tex. 1934); Attorney General Opinions MW-373 (1981); WW-790 (1960); WW-153 (1957). The use of the campus mail system would be a use of public property. Article III, section 51 does not prohibit all uses of public property by private entities; such use is permissible if it is for a public purpose and there are controls to assure the public purpose is actually achieved. Attorney General Opinions WW-373 (1981); MW-89 (1979); H-1309, H-1260 (1978). The determination whether a private organization's use of campus mail serves a public purpose is to be made, in the first instance, by the university. The opinion stressed that a determination that an organization's purposes are academically relevant to the educational mission is not the equivalent of a determination that a particular use of campus mail serves a public purpose.

On the federal question, the Private Express Statutes (18 U.S.C. sections 1693 to 1699; 39 U.S.C. sections 601 to 606) establish the postal monopoly and generally prohibit the private carriage of letters over postal routes without payment of postage to the United States Postal Service. Regents of Univ. of California v. Public Employment Relations Bd., 108 S.Ct. 1404, 1405 (1988). The statutes of particular concern were section 1694 and section 1696 of title 18 and section 601 of title 39. Section 1694 penalizes a carrier that regularly runs a post route and carries letters otherwise than in the mail, except letters relating to the current business of the carrier. Section 1696 penalizes establishing a private express for the conveyance of letters over a post route, with an exception in subsection (c) for conveyance "by private hands without compensation." Section 601 of title 39 permits a letter to be carried out of the mails when it is enclosed in a properly addressed and sealed envelope bearing canceled postage-equivalent stamps and the required endorsement.

In the Regents of Univ. of California case, the Supreme Court considered whether use of the University of California's internal mail service by a public employees union would violate the Private Express Statutes. The Court explained that the "letters-of-the-carrier" exception in section 1694 was what allowed the university to operate an internal mail system at all, but that the exception is a narrow one requiring a very close connection between the business of the carrier and the content of the letters. It warned that otherwise "a State could define delivery of mail to all its citizens as the 'current business' of some state agency and thereby defeat the postal monopoly." 108 S.Ct. at 1409. On that reasoning, the opinion concluded that a finding that an organization is academically relevant to the educational mission is insufficient by itself to bring its letters within the letters-of-the-carrier exception; whether particular letters qualify is a fact question resolved under federal law standards.

The opinion noted that a Postal Service regulation purports to create a letters-of-the-carrier exception from the Private Express Statutes generally, 39 C.F.R. section 310.3(b)(1), and that at least one circuit had held the Postal Service may promulgate regulations affecting the criminal as well as civil provisions of the statutes. Associated Third Class Mail Users v. United States Postal Serv., 600 F.2d 824, 826 n.5 (D.C. Cir.), cert. denied, 444 U.S. 837 (1979).

As for the private-hands exception, the Supreme Court held it is available only when there is no compensation of any kind flowing from the sender to the carrier, and found the union's letters would not be carried "without compensation" because delivering them would be part of the benefits the employer provided in exchange for services. 108 S.Ct. at 1410, 1412. The Attorney General concluded the private-hands exception applies only if the carrier receives no quid pro quo, a fact question under federal law to which an academic-relevance finding is irrelevant.

Finally, the opinion addressed 39 C.F.R. section 320.4, which suspends the operation of 39 U.S.C. section 601(a)(1) through (6) and 39 C.F.R. section 310.2(b)(1) through (6) to permit colleges and universities to carry, in their internal mail systems, the letters of their bona fide student or faculty organizations to campus destinations. The opinion read that regulation to reach only organizations in some way affiliated with the university, and noted the suspension does not cover section 1694 or section 1696 of title 18. Whether the organizations in question came within the provision raised fact questions appropriate for the Postal Service. See 39 C.F.R. section 310.6 (Postal Service advisory opinions).

Citations

Statutory and constitutional authorities:

• Texas Constitution art. III, § 51 (no grant of public money or property to individuals or private associations)
• 18 U.S.C. §§ 1693-1699 (Private Express Statutes)
• 39 U.S.C. §§ 601-606 (Private Express Statutes); § 601 (conditions for carrying a letter out of the mails)
• 18 U.S.C. § 1694 (carriage otherwise than in the mail; letters-of-the-carrier exception); § 1696 (private express; § 1696(c) private-hands exception)
• 39 C.F.R. § 310.3(b)(1) (letters-of-the-carrier regulation); § 310.3(c) (private-hands regulation); § 310.6 (Postal Service advisory opinions); § 320.4 (suspension for college and university internal mail); § 310.2(b)(1)

Cases:

• Rhoads Drilling Co. v. Allred, 70 S.W.2d 576, 582 (Tex. 1934) (art. III, § 51 bars donations of public property as well as funds)
• Regents of Univ. of California v. Public Employment Relations Bd., 108 S.Ct. 1404 (1988) (scope of Private Express Statutes exceptions for university mail)
• Associated Third Class Mail Users v. United States Postal Serv., 600 F.2d 824 (D.C. Cir.), cert. denied, 444 U.S. 837 (1979) (Postal Service rulemaking authority)

Attorney General materials referenced:

• Referenced: H-511 (1975); MW-373 (1981); WW-790 (1960); WW-153 (1957); MW-89 (1979); H-1309 (1978); H-1260 (1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1091
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1091.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative. (The scan mis-renders the issue year as "1089"; from the surrounding sequence and the running headers it is 1989.)

August 29, 1989

Dr. William H. Cunningham
President
University of Texas System
201 W. 7th Street
Austin, Texas 78701

Opinion No. JM-1091

Re: Use of campus mail services at state universities (RQ-1644)

Dear Dr. Cunningham:

You have requested the advice of this office on the following matter:

We request your opinion as to whether a faculty or staff organization that has been certified by an official of the University to be an organization whose activities and purposes "are academically relevant to the educational mission of the University" may be permitted to use the campus mail service without violating Section 51 of Article III of the Texas Constitution or the federal statutes relating to the private carriage of letters without the payment of postage.

You do not describe any particular faculty or staff organization. We assume from your letter, however, that you are asking about organizations that are neither supported nor sponsored by the university but whose activities and purposes the university has recognized as "academically relevant to the educational mission" of the university. See generally Attorney General Opinion H-511 (1975) (use of university facilities by student organizations with religious affiliation).

We turn first to your question about article III, section 51, of the Texas Constitution, which provides:

The Legislature shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever; provided, however, the Legislature may grant aid to indigent and disabled Confederate soldiers and sailors under such regulations and limitations as may be deemed by the Legislature as expedient, and to their widows in indigent circumstances under such regulations and limitations as may be deemed by the Legislature as expedient: provided that the provisions of this Section shall not be construed so as to prevent the grant of aid in cases of public calamity.

Article III, section 51, has been construed to prohibit donations of public property as well as public funds. Rhoads Drilling Co. v. Allred, 70 S.W.2d 576, 582 (Tex. 1934); Attorney General Opinions MW-373 (1981); WW-790 (1960); WW-153 (1957). The use of the campus mail system would be the use of public property.

Article III, section 51, does not prohibit all uses of public property by private entities. Such use is permissible if it is for a public purpose and if there are controls to assure that the public purpose is actually achieved. Attorney General Opinions WW-373 (1981); MW-89 (1979); H-1309, H-1260 (1978). The determination of whether the use of campus mail by a private organization serves a public purpose is to be made, in the first instance, by the university. Attorney General Opinion MW-373 (1981). The fact that an organization is a private one would not preclude a finding that the use of the campus mail by the organization serves a public purpose. On the other hand, a determination that the purposes of the organization are "academically relevant to the educational mission" of the university is not the equivalent of a determination that the use of the campus mail by that organization serves a public purpose. Indeed, it is certainly possible that the use of the campus mail by an organization for a particular type of mailing would serve a public purpose, whereas the use of the campus mail by the same organization for another type of mailing would not.

You also ask about the federal Private Express Statutes, 18 U.S.C. §§ 1693-1699; 39 U.S.C. §§ 601-606, which "establish the postal monopoly and generally prohibit the private carriage of letters over postal routes without the payment of postage to the United States Postal Service." Regents of Univ. of California v. Public Employment Relations Bd., 108 S.Ct. 1404, 1405 (1988). See generally U.S. House of Representatives, Committee on Post Office and Civil Service, Statutes Restricting Private Carriage of Mail and Their Administration (1973). The statutes of particular concern to you are sections 1694 and 1696 of title 18 and section 601 of title 39.

Section 1694 of title 18 provides:

Whoever, having charge or control of any conveyance operating by land, air, or water, which regularly performs trips at stated periods on any post route, or from one place to another between which the mail is regularly carried, carries, otherwise than in the mail, any letters or packets, except such as relate to some part of the cargo of such conveyance, or to the current business of the carrier, or to some article carried at the same time by the same conveyance, shall, except as otherwise provided by law, be fined not more than $50.

Section 1696 of title 18 provides:

(a) Whoever establishes any private express for the conveyance of letters or packets, or in any manner causes or provides for the conveyance of the same by regular trips or at stated periods over any post route which is or may be established by law, or from any city, town, or place to any other city, town, or place, between which the mail is regularly carried, shall be fined not more than $500 or imprisoned not more than six months, or both.

This section shall not prohibit any person from receiving and delivering to the nearest post office, postal car, or other authorized depository for mail matter any mail matter properly stamped.

(b) Whoever transmits by private express or other unlawful means, or delivers to any agent thereof, or deposits at any appointed place, for the purpose of being so transmitted any letter or packet, shall be fined not more than $50.

(c) This chapter shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation, or by special messenger employed for the particular occasion only. Whenever more than twenty-five such letters or packets are conveyed or transmitted by such special messenger, the requirements of section 601 of title 39, shall be observed as to each piece.

Section 601 of title 39, which permits private postal services under some circumstances, provides:

(a) A letter may be carried out of the mails when --

(1) it is enclosed in an envelope;

(2) the amount of postage which would have been charged on the letter if it had been sent by mail is paid by stamps, or postage meter stamps, on the envelope;

(3) the envelope is properly addressed;

(4) the envelope is so sealed that the letter cannot be taken from it without defacing the envelope;

(5) any stamps on the envelope are canceled in ink by the sender; and

(6) the date of the letter, of its transmission or receipt by the carrier is endorsed on the envelope in ink.

(b) The Postal Service may suspend the operation of any part of this section upon any mail route where the public interest requires the suspension.

In Regents of Univ. of California v. Public Employment Relations Bd., supra, the Supreme Court considered whether the use of the internal mail service of the University of California by a public employees union would violate the private express statutes. The court pointed out that the exception in section 1694 of title 18 for letters or packets relating "to the current business of the carrier" -- also known as the "letters-of-the-carrier" exception -- was what allowed the university to operate an internal mail system at all.1 The question in the University of California case was whether that exception would permit the university mail system to carry letters from the union to certain university employees.

The union argued that California had made harmonious labor relations the business of its state university. The court commented that the state could define the business of its institutions as it saw fit but that, for purposes of the federal postal statutes, that principle had its limits. Otherwise, the court wrote, "a State could define delivery of mail to all its citizens as the 'current business' of some state agency and thereby defeat the postal monopoly." 108 S.Ct., at 1409. The court declined to delineate the exact scope of the "letters-of-the-carrier" exception, but it concluded that the exception was a narrow one and that the union's letters were not close enough to the university's affairs to come within the exception. Id. at 1410.

1. On its face, the "letters-of-the-carrier" exception appears to be an exception from the prohibition set out in section 1694 of title 18, not from the Private Express Statutes generally. In the University of California case, however, the Supreme Court treated the exception as if it would exempt a carrier from the Private Express Statutes generally.

We note that the Postal Department has adopted a regulation that purports to create a letters-of-the-carrier exception from the Private Express Statutes generally. That regulation provides:

The sending or carrying of letters is permissible if they are sent by or addressed to the person carrying them. If the individual actually carrying the letters is not the person sending the letters or to whom the letters are addressed, then such individual must be an officer or employee of such person and the letters must relate to the current business of such person.

39 C.F.R. § 310.3(b)(1) (citation omitted). At least one circuit court has held that it is within the authority of the Postal Service to promulgate regulations affecting the criminal, as well as the civil, provisions of the Private Express Statutes. Associated Third Class Mail Users v. United States Postal Serv., 600 F.2d 824, 826 n.5 (D.C. Cir.), cert. denied, 444 U.S. 837 (1979).

Your question is whether the "letters-of-the-carrier" exception permits the use of campus mail at the University of Texas by groups that the university determines to be "academically relevant to the educational mission" of the university. The University of California decision requires that, in order for letters to come within the "letters-of-the-carrier" exception, there must be a very close connection between the business of the carrier and the content of the letters. Consequently, we think that a finding that an organization is academically relevant to the educational mission of the University of Texas is insufficient by itself to bring letters of the organization within the "letters-of-the-carrier" exception to the Private Express Statutes. Whether particular letters of a particular organization would come within the exemption is a fact question to be resolved in accordance with applicable federal law standards.2

You next ask about the effect of the so-called "private-hands" exception, which is based on section 1696(c) of title 18:

This chapter shall not prohibit the conveyance or transmission of letters or packets by private hands without compensation.

See also 39 C.F.R. § 310.3(c) (regulation containing "private-hands" exception). The Supreme Court discussed the "private-hands" exception in the University of California case:

Congress used unambiguous language to accomplish its goals. Persons or entities other than the United States Postal Services -- i.e., "private hands" -- may carry letters without violating the Private Express Statutes only so long as they do not receive any form of benefit from the sender -- i.e., "without compensation." While the pivotal term, "compensation," is not further defined, Congress in no way qualified its reach. We therefore give effect to congressional intent by giving the language its normal meaning. A dictionary from the period during which the private-hands exception was enacted illustrates the general nature of the term: it defines compensation to include "that which supplies the place of something else" and "that which is given or received as an equivalent for services, debt, want, loss, or suffering." N. Webster, An American Dictionary of the English Language 235 (C. Goodrich ed. 1849). Accordingly, we hold that the private-hands exception is available only when there is no compensation of any kind flowing from the sender to the carrier.

108 S.Ct. at 1410. The court then examined the relationship between the union and the university and concluded that carriage of the union's letters would not be without compensation:

By delivering the Union's letters, appellant would perform a service for its employees that they would otherwise pay for themselves, through their union dues. This service would become part of the package of monetary and nonmonetary benefits that appellant provides to its employees in exchange for their services. In our view, carriage of the Union's letters pursuant to such an exchange of benefits necessarily means that the carriage is not "without compensation." Accordingly, it does not fall within the private-hands exception.

108 S.Ct. at 1412.

In short, the "private-hands" exception is applicable only if the carrier receives no quid pro quo. The question of what constitutes a quid pro quo for purposes of the Private Express Statutes is a question of federal law. Whether a quid pro quo exists in a particular situation is a fact question. A finding that an organization is "academically relevant to the educational mission" of the university is irrelevant to the question of whether a quid pro quo exists.3

You also ask about 39 C.F.R. section 320.4, which provides:

The operation of 39 U.S.C. 601(a)(1) through (6) and § 310.2(b)(1) through (6) of this chapter is suspended on all post routes to permit colleges and universities to carry in their internal mail systems the letters of their bona fide student or faculty organizations to campus destinations. This suspension does not cover the letters of faculty members, students, or organizations other than bona fide student or faculty organizations of the carrying college or university. Colleges and universities choosing to provide their student or faculty organizations access to their internal mail systems are responsible for assuring that only letters of bona fide student or faculty organizations addressed to campus destinations are carried. (See § 310.4) For purposes of this suspension, "internal mail systems" are those which carry letters on, between, and among the various campuses of a single college or university and which operate in accordance with the Letters of the carrier exception in 39 CFR 310.3(b).

Whether the organizations you ask about come within that provision raises fact questions. It would be appropriate to seek the opinion of the postal service in regard to whether specific organizations come within that exception. We note, however, that the regulation refers to colleges and universities providing access to "their" faculty organizations. That language indicates that the regulation applies to organizations that are in some way affiliated with the university. We also note that the regulation only purports to suspend the application of 39 U.S.C. section 601(a)(1) through (6) and 39 C.F.R. section 310.2(b)(1) through (6). It does not purport to suspend the application of either section 1694 or section 1696 of title 18.

2. We note that the postal service issues advisory opinions on questions arising under parts 310 and 320 of the Code of Federal Regulations. 39 C.F.R. § 310.6.

3. In order for use of university property by a private organization to pass muster under article III, section 51, of the Texas Constitution, the university must receive an adequate quid pro quo. See generally Braden, The Constitution of the State of Texas, vol. 1, at 229-36 (1977). What constitutes a quid pro quo for purposes of article III, section 51, might not be the same as what constitutes a quid pro quo for purposes of 18 U.S.C., section 1696(c). It is possible, however, that the existence of a quid pro quo that would make use of campus mail by a private organization permissible for purposes of article III, section 51, would make the use impermissible under the Private Express Statutes.

SUMMARY

Article III, section 51, of the Texas Constitution would permit the use of the campus mail system of the University of Texas by a private organization if the use is for a public purpose. A finding that the private organization in question is "academically relevant to the educational mission" of the university is not the equivalent of a finding that a particular use of the campus mail system serves a public purpose.

Determinations as to whether organizations come within various exceptions to the Private Express Statutes, 18 U.S.C. §§ 1693-1699; 39 U.S.C. §§ 601-606, involve questions of fact that are to be resolved in accordance with federal law standards.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General