August 29, 1089

Dr.William H. Cunningham Opinion No. JM-1091 President University ofTexas System Re: Use of campus mail ser201W. 7th Street vices at state universities Austin, Texas 78701 (RQ-1644)

Dear Dr. Cunningham:

you have requested the advice ofthis office on the following matter:

We request your opinion as towhether a faculty or staff organization that has been certified by anofficial ofthe University to be an organization whose activities and purposes 'are academically relevant to the educational mission oftheUniversity' may be permitted to use the campus mail service without violating Section 51ofArticle III 

### ofthe Texas Constitution or the federal statutes relating to the private carriage of letters without the payment ofpostage.

you do not describe anyparticular 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 tothe educational mission" ofthe university. See aenerallv 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, ofthe Texas Constitution, which provides:

The Legislature shall have no power to make any grant orauthorize themaking 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

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indigent and disabled Confederate soldiers and sailors under such regulations and limitations asmay bedeemed by the Legislature as expedient, and to their widows in indigent circumstances under such regulations and limitations as may be deemed by the Legislature asexpedient: provided that the provisions of this Section shall not be construed soasto prevent the grant of aid incases ofpublic calamity.

Article III, section 51, has been construed to prohibit donations 

### of public property as well as public funds. Rhoads Drillina Co.v. Allred, 70 S.W.Zd 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 ofpublic property.

Article III, section 51, does not prohibit all uses of public property by private entities. Such use is pennissible 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); M'W-89 (1979); H-1309, H-1260 (1978). The determination ofwhether the use ofcampus mail by a private organization serves a public purpose istobemade, inthe first instance, by the university. Attorney General Opinion MW-373 (1981). The fact that an organization is a private one would not preclude afinding that the use of the campus mail by the organization serves apublic purpose. On the other hand, a determination that the purposes of the organization are *'academically relevant to the educational missionV* of the university isnot the equivalent of adetermination that the
use ofthe campus mail by that organization serves a public purpose. Indeed, it iscertainly possible that the use of the campus mail by anorganization for aparticular type of mailing would serve apublic purpose, whereas the use ofthe campus mail by the same organization for another type of mailing would not.

You also ask about the federal Private Express Statutes, 18U.S.C. 55 1693-1699; 39U.S.C. 55 601-606, 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." Reaents ofUniv. -ofCalifornia v. Public EmDlOVment Relations Bd., 108 S.Ct. 1404, 1405 (1988). See aenerallv U.S. House ofRepresentatives, Committee onPost Office and Civil Service, Statutes Restrictina Private Carriaae ofMail and Their Administration (1973). The statutes of particular

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concern toyou are sections 1694 and 1696 oftitle 18 and section 601 oftitle 39.

Section 1694 oftitle 18provides:
.Whoever, having charge or control of any conveyance operating by land, air, or water, which regularly performs trips at stated periods on anypost route, or from one place to another between which the mail ’ regularly carried, carries, otherwise than ti themail, any letters orpackets, except such asrelate to some part ofthe cargo of such conveyance, orto the current business of the carrier, or to some article carried at the
same time by the same conveyance, shall, except asotherwise provided by law, be fined notmore than $50.

Section 1696 oftitle 18provides:

(a) Whoever establishes any private express for the conveyance of letters or packets, or inanymanner causes or provides for the conveyance of the same ,by regular trips or at stated periods over any post route which isormay be established by law,
or from any city, town, orplace to any other city, town, orplace, between which the mail isregularly carried, shall be fined notmore than $500 or imprisoned notmore than six months, orboth.

This section shall not prohibit any person from receiving and delivering to,the nearest post office, postal car, orother authorized depository for mail matter anymail matter properly stamped.
(b) 

### Whoever transmits byprivate express or other unlawful means, ordelivers to any agent thereof, or deposits atany appointed place, for the purpose ofbeing so transmitted any letter or packet, shall be fined notmore 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

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than twenty-five such letters orpackets are conveyed or transmitted by such special messenger, the requirements of section 601 of title 39, shall be observed asto each piece.

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

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

(1) it isenclosed inanenvelope:
(2) the amount of postage which would have been charged onthe letter if ithad 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 itwithout defacing the envelope;
(5) any stamps on the envelope are canceled in inkby the sender: and
(6) the date of the letter, of its transmission or receipt by the carrier is endorsed onthe envelope in ink.
(b) The Postal Service may suspend the operation of'any part of this section upon anymail route where the public interest requires the suspension. *

InReaents ofUniv. of California v. Public Emvlovment Relations Bd., suvra, the Supreme Court considered whether the use ofthe internal mail service ofthe University of California by apublic employees union would violate the private express statutes. The court pointed out that the exception insection 1694 oftitle 18 for letters orpackets relating "to the current business of the carrie?? -- also known asthe "letters-of-the-carrier" exception --was what allowed the university tooperate an internal mail system at

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all.1 The question intheUniversitv 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 itsaw fitbut that, forpurposes ofthe federal postal statutes, that principle had its limits. Otherwise, the court wrote, 'laState could define delivery ofmail to all its citizens asthe 'current business' of
some state agency and thereby defeat the postal monopoly." 108 S.Ct., at 1409. The court declined todelineate the exact scope of the "letters-of-the-carrier" exception, but itconcluded that the exception was a narrow one and that the union's letters were not close enough to the

1. On its face, the V'letters-of-the-carrierll exception appears tobe an exception from the prohibition set out in section 1694 of title 18, not from the Private Express Statutes generally. Inthe Universitv ofCalifornia case, however, the Supreme Court treated the exception as if it would exempt acarrier 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 Statues generally. That regulation provides:

The sending orcarrying of letters is permissible ifthey are sent by or addressed to the person carrying them. Ifthe individual actually carrying the letters isnot the person sending the letters orto 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.
39C.F.R. 5310.3(b)(l) (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, aswell asthe civil, provisions ofthe 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, 444U.S. 837 (1979).

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university's affairs to come within the exception. Id. at 1410.

Your question is whether the "letters-of-the-carrier" exception permits the use of campus mail atthe University ofTexas by groups that the university determines to be "academically relevant to the educational mission" of the university. The Universitv ofCalifornia decision requires that, inorder for letters to come within the 10letters-ofthe-carrier" exception, there must be avery close connection between the business ofthe carrier and the content of the letters. Consequently, we think that afinding that an organization is academically relevant to the educational mission of the University ofTexas is insufficient by itself .tobring letters ofthe organization within the "letters-ofthe-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 isbased on section 1696(c) oftitle 18:

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

See al 39 C.F.R. s310.3(c) OqprivaFz-handsll exception). (regulation containing The Supreme Court discussed the "private-hands" exception inthe Universitv of California
case:
Congress used unambiguous language to

accomplish its goals. Persons or entities other than theUnited States Postal Services

--l.e., 'private hands' --may carry letters without violating the Private Express Statutes only so long as they donot receive any form ofbenefit from the sender -- i.e., 'without compensation.' While the pivotal term, 'compensation,' isnot further defined,

2. We note that the postal service issues advisory opinions onquestions arising under parts 310 and 320 of the Code of Federal Regulations. 39C.F.R. 5310.6.

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### Congress innoway qualified its reach. We therefore give effect to congressional intent bygiving the language itsnormal meaning. A dictionary from the period during which the private-hands exception was enacted illustrates the general nature ofthe term: it defines compensation to include 'that which supplies the place of something else' and 'that which isgiven 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 isavailable 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:

Bydelivering 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 ofmonetary 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. .

Inshort, the "pr'ivate-hands" exception is applicable only ifthe carrier receives noquid pro guo. The question ofwhat constitutes a quid pro guo forpurposes of the Private Express Statutes is aquestion of federal law. Whether aquid pro guo exists inaparticular situation isa fact question. A finding that an organization ' "academically relevant to the educational mission" of tit:

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university is irrelevant to the question ofwhether a pro guo exists.3 quid

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)(l) through (6) of this chapter issuspended onall post routes topermit colleges and universities to carry intheir 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 toprovide their student or faculty organizations access to their internal mail systems are responsible for assuring that only letters 

### ofbona fide student or faculty organizations addressed to campus destinations are carried. (See 5310.4) For purposes ofthis 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 inaccordance with the Letters of the carrier exception in 39CFR 310.3(b).

Whether the organizations you ask about come within that provision raises fact questions. Itwould be appropriate to seek the opinion ofthe postal service inregard to whether

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

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specific organizations come within that exception. We note, however, that the regulation refers to colleges and universities providing access tions. to "thei??'faculty organizaThat language indicates that the regulation applies to organizations that 

### are insome 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)(l) through (6) 

### - Itdoes not purport to suspend the application of either section 1694 or section 1696 oftitle 18.

SUMMARY

Article III, section 51, ofthe Texas Constitution, would permit the use of the campus mail system ofthe University ofTexas by aprivate organization ifthe use is for a public purpose. A finding that the private organization in question is "academically relevant to the educational mission*@ of the university isnot the equivalent of afinding that a particular use of the campus mail system serves apublic purpose.
Determinations as towhether organizations come within various exceptions to the Private Express Statutes, 18U.S.C. §§ 1693- 1699: 39U.S.C. 55601-606, involve questions of fact that are tobe resolved inaccordance with federal law standards.

JIM M-A TT0X Attorney General ofTexas

MARY KELLER First Assistant Attorney General

LCUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Sarah Woelk Assistant Attorney General

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