August 29, 1089 

Dr. William H. Cunningham Opinion No. JM-1091 

President 

University of Texas System Re: Use of campus mail ser201 W. 7th Street vices at state universities 

Austin, Texas 78701 (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 

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, 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 

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Dr. William H. Cunningham - Page 2 (JM-1091) 

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 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 of public 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 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 missionV* 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. 55 1693-1699; 39 U.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 of Univ. -of California v. Public EmDlOVment Relations Bd., 108 S.Ct. 1404, 1405 (1988). See aenerallv U.S. 

House of Representatives, Committee on Post Office and Civil 

Service, Statutes Restrictina Private Carriaae of Mail and 

Their Administration (1973). The statutes of particular 

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Dr. William H. Cunningham - Page 3 (JM-1091) 

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 ’ 

regularly carried, carries, otherwise than ti 

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 

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Dr. William H. Cunningham - Page 4 (JM-1091) 

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 Reaents of Univ. of California v. Public Emvlovment 

Relations Bd., suvra, 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 carrie?? -- also 

known as the "letters-of-the-carrier" exception -- was what 

allowed the university to operate an internal mail system at 

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Dr. William H. Cunningham - Page 5 (JM-1091) 

all.1 The question in the Universitv 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, 'la 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 

1. On its face, the V'letters-of-the-carrierll 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 Universitv 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 Statues 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. 5 310.3(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, 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). 

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Dr. William H. Cunningham - Page 6 (JM-1091) 

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 at the University 

of Texas by groups that the university determines to be 

"academically relevant to the educational mission" of the 

university. The Universitv of California decision requires 

that, in order for letters to come within the 10letters-ofthe-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-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 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 al 39 C.F.R. s 310.3(c) 

OqprivaFz-handsll exception). 

(regulation containing 

The Supreme Court discussed the 

"private-hands" exception in the Universitv of California 

case : 

Congress used unambiguous language to 

accomplish its goals. Persons or entities 

other than the United States Postal Services 

-- l.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, 

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. 5 310.6. 

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Dr. William H. Cunningham - Page 7 (JM-1091) 

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 "pr'ivate-hands" exception is applicable 

only if the carrier receives no quid pro guo. The question 

of what constitutes a quid pro guo for purposes of the 

Private Express Statutes is a question of federal law. 

Whether a quid pro guo exists in a particular situation is a 

fact question. A finding that an organization ' 

"academically relevant to the educational mission" of tit: 

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Dr. William H. Cunningham - Page 8 (JM-1091) 

university is irrelevant to the question of whether 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 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 5 310.4) 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 

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 aenerally Braden, The Constitution of the State of Texas, vol. 1, at 229-36 (1977). What 

constitutes a quid pro guo 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 guo 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. 

p. 5714 
Dr. William H. Cunningham - Page 9 (JM-1091) 

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 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)(l) through (6) - 

It does not purport to suspend the application of either 

section 1694 or section 1696 of title 18. 

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. 55 601-606, involve questions 

of fact that are to be resolved in accordance 

with federal law standards. 

JIM M-A T T 0 X 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LCU MCCREARY 

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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