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HE L~TTCBRNES GENERAL 

QblF?!kXAS 

Honorable J. W. Edgar 

Commissioner of Education 

Texas Education Agency 

201 East 11th Street 

Austin , ,Texas 

Dear Mr. Edgar: 

Opinion No. M-417 

Re: Whether the State Board 

of Education may require a 

loyalty oath, as prescribed 

in Sections 1, 2 and 3 of 

Article 6252-7, V.C.S., of 

authors bidding for state 

adoption and purchase of 

textbooks and teaching 

aids? 

You have asked whether the oath, required by Article 6252-7, 

Sections 1, 2, and 3, Vernon's Civil Statutes, as a condition 

precedent to consideration of any ,textbook, is constitutionally 

permissible. Paragraph 23 of the proposed Proclamation of the 

State Board of Education, advertising for bids on textbooks, is 

in accord with Article 6252-7, Section 3, and reads as follows: 

"Authors of all textbooks and teaching aids 

offered for adoption under this proclamation shall 

sign the non-subversive oath in compliance with the 

provisions of Article 6252-7. Revised Civil Statutes 

of Texas. The bid of a publisher will not be considered unless there has been compliance with the 

terms of the, foregoing statute." 

It is our opinion that Article 6252-7, Sections 1, 2, and 3, 

violates several provisions of both the State and Federal Constitutions: therefore, the Board of Education may not require 

the prescribed oath as a condition precedent to consideration of 

a textbook. 

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. 

Honorable J. W. Edgar, page 2 (M-417) 

Article 6252-7, Section 3, requires that the State Board of 

Education "neither adopt nor purchase any textbook for use in 

the schools of this State unless and until the author of such 

textbook files with the Board an oath or affirmation reciting 

the matters set forth in Subdivisions 1, 2 and 3 of Section 1" 

of the statute. 

Section 1 of Article 6252-7'provides that "no funds of 

the State of Texas shall be paid to any person . . . unless and 

until such person has filed . . . an oath or affirmation stating: 

'8 1. That the affiant is not, and has never 

been, a member of the Communist Party. (The term 

'Communist Party' as used herein means any organization which (a) is substantially directed, dominated or controlled by the Union of Soviet Socialistic Republics, or its satellites, or which (b) 

seeks to overthrow the Government of the United 

States, or of any State, by force, violence or any 

other unlawful means); and 

"2 . That the affiant is not, and, during the 

preceding five year period, has not been a member 

of any organization, association, movement, group 

or combination which the Attorney General of the 

United States, acting pursuant to Executive Order 

No. 9835, March 21, 1947, 12.Federal Register 

1935, has designated as totalitarian, fascist, 

communist or subversive, or as having adopted a 

policy of advocating or approving the commission 

of acts of force or violence to deny others their 

rights under the Constitution of the United 

States, or as seeking to alter the form of Government of the United States by unconstitutional 

means: or, in the event that the affiant has 

during such five year period been a member of any 

such organization, association, movement, group 

or combination, he shall state its name, shall 

state in detail the circumstances which led him 

to join it, and shall state that, at the time when 

he joined and throughout the period during which 

- 2081- 
Honorable S. W. Edgar, page 3 (M-417) 

he was a member, he did not know that its purposes were the purposes which the Attorney General 

of the United States has designated: and 

"3 . That the affiant is not, and, during 

the preceding five year period, has not been, a 

member of any 'Communist Political Organization' 

or 'Communist Front Organization' registered 

under the Federal Internal Security Act of 1950 

(50 U.S.C.A., sec. 781, et seq.) or required to 

so register under said Act by final order of the 

Federal Subversive Activities Control Board: or, 

in the event that the affiant has during such 

five year period been a member of any such 

organization, he shall state its name, shall state 

in detail the circumstances which led him to join 

it, and shall state that, at the time when he 

joined it and throughout the period during which 

he was a member, he did not know that its purpose 

was to further the goals of the Communist Party 

or that it was controlled by the Communist Party." 

The Federal court in Gilmore v. James, 274 F.Supp. 75 

(N.D. Tex. 1967) affirmed, 389 U.S. 572, held Article 6252-7, 

Section 1, unconstitutional. The Gilmore case involved extraction of the oath as a condition precedent to employment. 

The flaw in the oath provided by Article 6252-7 is stated in 

the following excerpt from the opinion in the Gilmore case, 274 F. 

SUPP. at 92: 

"Oaths in support of the government are not abhorrent 

to the Constitution. Indeed, the Constitution provides 

one. The vice of the oath condemned here is that it 

equates membership or association with non-allegiance. 

A statute which automatically disqualifies applicants on 

the basis of membership alone ensnares the innocent with 

the guilty. While such membership may furnish a basis for 

further inquiry into an applicant's present or past 

activities, it does not in itself constitute a threat 

to the state. An individual is entitled to be judged by 

his own conduct, not that of his associates. To the extent that Article 6252-7 disqualifies passive or dissenting members of such organizations, it is too broadly 

- 2082 - 
Honorable J. W. Edgar, page 4 (M-417) 

drawn. Even as to ignorant members, the statutory 

exculpation, if any, is vague in its implementation. 

See Speiser v. Randall, 1958, 357 U.S. 513, 78 S.Ct. 1332 

2 L.Ed.2d 1460, with contemporary elucidation by Keyishian 

v. Board of Regents . .." (385 U.S. 589,607, 1967) 

The individual who writes a book possesses the same constitutional rights possessed by the individual seeking public 

employment. The fact that Article 6252-7, Section 3, imposes 

the oath as a condition precedent to consideration or purchase 

of an individual's written work does not furnish any basis for 

distinguishing the holding in Gilmore v. James, supra. 

Article 6252-7, Section 3, presents an additional constitutional question not present in Gilmore v. James, supra. 

In Gilmore the question is not whether any oath may be 

extracted from a public employee, but is whether the particular 

oath may be extracted as a condition precedent to employment. 

There is some relationship between the motive for the oath and 

the desired and permissible objective. The motive is to bar 

certain classes of people from public employment and the desirable 

and permissible objective is to prevent subversion in government. 

The fact that the oath used is overly broad and therefore 

violative of constitutional rights does not obscure the fact 

that a rational connection between means and end does exist. 

Section 3 of Article 6252-7 presents the additional question 

whether any oath may be required as a condition precedent to 

consideration of a book. It is doubtful that there is any 

reasonable connection between means and end in this context. 

A book may be judged on its own merit regardless of the associations of its author. Two cases by the United States Supreme Court 

indicate that using an oath to determine whether a person can 

qualify for a right of citizenship is an unfair method of classification, because it places on the claimant of the right the 

burden to prove that he is a proper person to exercise the right. 

The case of Speiser v. Randall, 357 U.S. 513 (1958), presents a 

- 2083 - 
Honorable J. W. Edgar, page 5 (M-417) 

situation closely analogous to the problem presented by Article 

6252-7, Section 3. In Soeiser, the thing desired was a state 

property tax exemption provided veterans of World War II. In 

order to obtain the exemption, the State required a loyalty 

oath reading as follows, 357 U.S. at 515: 

"I do not advocate the overthrow of the Government of the United States or of the State of California 

by force or violence or other unlawful means, nor 

advocate the support of a foreign Government against 

the United States in event of hositilities." 

Exemption was denied solely for refusal to execute the oath. 

The Supreme Court held this to restrict free speech without 

due process of law because it placed on the exemption claimant 

the burden of proving he was a proper person to obtain the 

exemption. 

The Court observed in Speiser, 357 U.S. at 518: 

"It cannot be gainsaid that a discriminatory 

denial of a tax exemption for engaging in speech is 

a limitation on free speech." 

Article 6252-7, Section 3, places on the author of a textbook the burden of proving he is a proper and loyal person in 

order to have his books considered by the Board of Education. 

According to the above cited cases, this is an abridgement of 

the First Amendment rights of free speech, press, and assembly 

without due process of law. 

A companion case to Speiser involving the same problem is 

First Unitarian Church v. County of Los Anqeles, 357 U.S. 545 

(1958). In both Speiser and the First Unitarian Church cases 

the problem concerns not so much the oath itself as the - use 

being made of the oath. 

It is the opinion of this office that the oath required by 

Article 6252-7 is unconstitutional as a condition precedent to 

- 2084 - 
Honorable J. W. Edgar, page 6 (M-417) 

consideration of a book for the same reasons it was held unconstitutional as a condition precedent to employment in Gilmore 

v. James, supra. 

It is also the opinion of this office that the requirements 

of Section 3 of Article 6252-7 provide for an unconstitutional - use 

of the oath for the reasons set out in Speiser v. Randall, supra. 

You have indicated in connection with your request some 

concern as to the scope of valid inquiry which may be made concerning the authors of the textbooks under consideration in 

the event no loyalty oath may be required. Under Article 267533, 

Vernon's Civil Statutes, the duties previously devolving by law 

upon the "State Textbook Commission" are now to be performed by 

the "State Board of Education." The Board shall appoint annually 

a Textbook Committee, whose duty it is to examine all books 

submitted for adoption and to make written recommendations to the 

Board relative to the "teachable value of the books." The Board 

is vested with the broad discretionary authority to adopt those 

textbooks found to be most suitable under any reasonable plan or 

method deemed best by it. Cf: Attorney General Opinions No. 

v-407 (1947) and V-417 (1947). The State Board of Education may 

adopt policies, rules, and regulations for carrying out its 

duties. Article 2654-3, V.C.S. 

In the selection of textbooks, the author's background and 

qualifications to write a particular textbook may be a pertinent 

and legitimate matter of inquiry. Konigsbers v. State Bar, 366 

U.S. 36 (1961) distinguishing Speiser v. Randall, supra, pp 54-56, 

from the cases involving "no attempt directly to control speech 

but rather to protect from an evil shown to be grave, some 

interest clearly within the sphere of governmental concern." 

Such an inquiry, whether by questionnaire or administrative 

interview or hearing, is not prohibited by the Constitution or 

statute. The author should be accorded the right to answer, to 

explain his answer, or make such qualifications thereto as his 

conscience demands, including the right to refuse to answer. 

Consideration by the Board of such matters, along with other 

factors which may bear upon the author's qualifications to write 

an objective and informed work, in the author's particular 

- 2085 - 
. . . 

Honorable J. W. Edgar, page 7 (M-417) 

field of expertise, as well as the work itself, are permitted. 

The State's right to demand a loyalty oath as a condition 

precedent to consideration of the textbook is the prohibited 

act which the foregoing decisions have outlawed. 

In the Koniqsberq case, supra, an applicant for admission 

to the California Bar refused to answer any questions relating to 

his membership in the Communist Party. The Supreme Court found 

that this matter did bear upon the applicant's qualifications and 

upheld the action of the court in refusing to certify him on the 

ground that his refusal to answer had obstructed a full investigation into his qualifications and such inquiry was constitutionally 

permissible. 

Inquiry which showed reasonable cause to believe proceeds 

from textbook royalties were being used to support illegal 

activity, would probably permit refusal to purchase the book, 

regardless of the merit of the book. 

The policies, rules, and regulations in the selection of 

state textbooks to be used have been left to the Board's discretion. Our courts will uphold the action of the State Board 

of Education so long as its rules do not contravene any applicable 

laws or the Constitution. Adkins v. Rogers, 303 S.W.2d 820 

(Tex.Civ: App. 1957, error ref., n.r.e.) 

SUMMARY 

The State Board of Education may not require the loyalty oath prescribed by Article 

6252-7, Section 3, Vernon's Civil Statutes, 

as a prerequisite to consideration of a textbook by the Board of Education. However, the 

State Board of Education is not prohibited from 

making reasonable inquiry into the background 

qualifications of an author to write a particular 

textbook, whenever pertinent, in reaching its 

- 2086 - 
Honorable J. W. Edgar, page 8 (M-417) 

ultimate discretionary determi?ation of which 

textbooks are the most suitable for adoption. 

Yo&very truly, 

D C. MARTIN 

Prepared by Samuel D. McDaniel 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Sally Phillips 

Bob Davis 

Tom Bullington 

James Quick 

W. V. GEPPERT 

Staff Legal Assistant 

HAWTHORNE PHILLIPS 

Executive Assistant 

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