April 16, 1975 

The Honorable William T. “Bill” Moore 

Chairman, State Affairs Committee 

The Senate of the State of Texas 

Austin. Texas 78711 

Dear Senator Moore: 

Opinion No. H- 583 

Re: Interpretation of the 

Lobby Control Act 

You have asked our opinion on 45 questions involving the Lobby Control 

Act, article 6252-9~. Your questions are too numerous to list separately, 

but many of them are arranged in groups dealing with single subjects. In 

the interest of brevity, we have consolidated and summarized your questions 

wherever possible. 

Your first group of questions involves the circumstances under which 

an individual who is employed by another and who communicates with a 

public official to influence legislation is required to register under section 3 

of the Act. Section 3 provides: 

(a) The following persons must register,with the 

secretary as provided in Section 5 of this Act: 

(1) a person who makes a total expenditure in 

excess of $200 in a calendarquarter, not including 

his own travel, food, or lodging expenses, or his 

own membership dues, for communicating directly 

with one or more members of the legislative or executive branch to influence legislation: and 

(2) a person who receives compensation or reimbursement from another to communicate directly with 

a member of the legislative or executive branch to 

influence legislation. 

p. 2595 
. 

. . . 

. . 

The Honorable William T. “Bill” Moore, page 2 (H-563) 

_. 

(b) A person. other than a member of the judicial, 

legislative, or executive branch, who, as part of hi6 

regular employment, communicate6 directly with a 

member of the legislative or executive branch to 

influence legislation, whether or not any compeneation in addition to the salary for that regular 

employment is received for the communication, must 

register under Subsection (a), Paragraph (2), of thie 

section. 

There are five questions in your first group but they are effectively 

rummarized by your quertion l(e) which i6: 

What is the test for determining whether a 

6alaried individual communicate6 directly with a 

member of the legislative or executive branch to 

influence legislation “as a part of his regular 

employment, ” as the quoted phrase ie used in 

Section 3(b)? 

It i6 our view that a person communicates with a public official or 

candidate within the acope of his regular employment when the ccrmmtnication 

i6 on behalf of and at the exprers or implied direction of hi6 employer or 

is ratified by his employer. We do not believe that it io necessary that a 

specific portion of hi6 salary be allocable to hi6 role of communicating with 

members of the legislative and executive branches. It is sufficient that he 

be employed andthat he communicate with public officials or candidates to 

influence legislation a6 an incident of his employment. Rrrthermore, an 

individual who receives compensation or reimbursement from another person 

to communicate directly with a member of the legislative or executive branch 

to influence legislation must register pursuant to section 3(a)(2). Whether 

he receives a salary is not determinative. 

Your second series of question6 concerns registration by “a group of 

person6 who are voluntarily acting in concert.” Such groups are “persone” 

required to register under section 3. See section 2(l). We believe that the 

test for whether a group is within this definition is that contained in Rock 

Creek Oil v. Moore, 41 S. W. 2d 501 (Tex. Civ. App. --Amarillo 1931); rev’d. 

on other grounds, 59 S. W. 2d 815 (Tex. Comm. 1933). 

p. 2596 
The Honorable William T. “Bill” Moore, page 3 (H- 583) 

[Cbcerted action ia: ‘Action that has been planned, 

arranged, adjuclted, agreed upon and 6ettled between 

parties acting together in pursuance of some design 

or in accordance with some scheme.’ 41 S. W. 2d at 504. - 

Thus, when persons are acting pursuant to agreement and in pursuit of some 

common goal they would constitute “a group ‘of persons who are voluntarily 

acting in concert. I’ A group may designate any member or employee to 

actually prepare, sign and file the report, Attorney General Opinion H-311 

(1974). 

Your third series of questions involves communications between an 

individual and a public official when the communication i6 initiated by the 

public official. You offer example6 of a legislator placing a telephone call 

to a citizen or sending the citizen a questionnaire to ascertatn. hi6 position 

on proposed legislation. You ask if this type. contact constitutes a direct 

communication to inQuence legislation for purposes of registration under 

the Act. As a practical matter, the only instance in which a question might 

arise is when the citizen is contacted in the course of hi6 employment. You 

also ask whether registration is requi’red o.f an individual who is~requested 

to appear before a legislative committee and receives reimbursement from 

the State for hi6 expenses while at the same time being compensated by his’ 

employer. 

We do not believe that the Lobby Control Act was intended to require 

regietration by a person merely because in the course of his employment, 

he responded to a legislator’s telephone call or letter or appeared before a 

committee at the committee’6 specific request. However, neither do we 

believe that the Act can be construed to permit a subterfuge by which persons 

can avoid registration by making certain that the communication was initiated by the public official. Persons are required to register under the Act 

when,they communicate directly with a member of the legislative or executive branch for the purpose of influencing legislation and (1) spend more than 

$200 in a calendar quarter for that purpose, (2) receive compensation or 

reimbursement from another for those activities. or (3) do so as part of their 

regular employment. The Act is designed to require registration by those 

persons who spend substantial sums of money for lobbying activities and those 

who ark .paId by other persons to represent their interests before the legislative or executive branch of the government, Persons who lobby on behalf of 

. . 

p. 2597 
The Honorable William T. “Bill” Moore, page 4 (H-583) 

their employer in the course of their r.egular employment fall into thi6 

latter group; however, we do not believe that perron who merely respond 

to a legislator’s inquiry necessarily do 50 a6 part of their regular employment. In most cases re6ponding to the inquiry by the public official will 

not be part of the person’5 regular employment. On the contrary, it will 

be an unusual and unanticipated duty. Some persons, however, may be 

expressly or impliedly designated by their employer to handle comrnunications with public officials and such dutieo will be a usual part of their 

employment, These persons normally would be within the ambit of the 

registration provisions of the Act. 

You aleo ask whether a person who communicate5 with a public official 

for the purpose of providing factual information which may have an effect on 

legislation or. for the purpose of delivering a campaign contribution to the 

official would be required to register under the Act. The necessity to register 

would depend on the occurrence of a direct communication with the public 

official to influence legislation. In the cases you cite the answer generally 

would depend on a factual’determin6,tion in the particular instance of whether 

the communication was made to influence ,legilrlation. 

You next ask if section 3(a)(2) requires registration of a person who 

receive6 reimbureement from another to communicate directly with a public 

official to influence legislation if the individual does not ,make a total expenditure in exceso of $200 in a calendar quarter. An individual who i6 compen6ated or reimbursed by another person to communicate with members of the 

legislative or executive branch to influence legirlation is required to register 

under section 3(a)(2). Unlike rection 3(a)(l) this provision include6 no minimum expenditure which triggers the registration requirement. 

You also ask what expenditure6 are to be included under section 3(a)(l) 

in determining whether a person has 6pent in excess of $200 in a calendar 

quarter. That section refer5 to “a total expenditure in excess of $200 in 

a calendar quarter, not including hi6 own travel, food, or lodging expenses, 

or his own membership dues, for communicating directly with one or more 

members of the legislative or executive branch to influence legislation.” We 

believe this would include any expenditure, other than those specifically 

excepted, which are reasonably related to communication to influence legislation. Whether a specific expenditure is made for that purpose depends on 

the facts of the individual case, but for an example of some of the types of 

expenses which might qualify see section 6(b)(l). 

p. 2598 
The Honorable William T; “Bill” Moore, page 5 (H-583) 

You next ark if rection 3(b) exempt6 a member of the judicial, 

legi6lative or executive branch from the operation of section 3(a)(l) 

55 well as from the operat ion of 6ection 3(a)(2). Section 3(b)(l) require5 

regi6tration of perron 6pending a certain amount of money to influence 

legi6lation. Section 3(a)(2) requires regi6tration of per6ons who lobby oh 

behalf of another for compensation or reimbursement. Section 3(b) provider that a perron other than a member of the legislative, executive, or 

judicial branch who, a6 a part of hi6 regular employment, directly communicates with a public official to influence legislation is required to 

register under section 3(a)(2). Due to it6 specific reference to section 

3(a)(2) ad the explanatory nature of it6 contents, in our opinion section , 

3(b) wa6 intended to modi& only section 3(a)(2) and doe6 not apply to 

section 3(a)(l). However, the responclibilities of members of the legislative and executive departments may necessarily entail the expenditure 

of money to communicate with other members of these departments. Thi6 

ie particularly true iit regard to members of the Legislature. In addition, 

the policy expreosed in 6ection 1 concern6 communications by non-member5 

with members of the executive and legi6lative departments. Consequently, 

we feel that members of the legislative and executive departments acting 

in the course of their official duties are impliedly exempted from the 

requirements,of section 3(a)(l), just as they are expressly exempted from 

3(a)(2). And see Attorney General Opinion H-297 (1974). 

You next ask if an individual who has regi6tered because of hi6 attempt 

to influence legislation ir required to register again when he communicate5 

with a public offtcial in an attempt to influence legislation on behalf of 

another person, You indicate that you are specifically concerned with the 

situation in which registration is clearly required for the first contact but 

where the second contact standng alone would not have required registration. 

It should be noted that thi6 particular rituation will rarely, if ever, 

occur. If a perron is lobbying on behalf of another and is reimbursed for 

that service, he i6 required to register regardlea of the amount of reimbureement or compensation he recsives unless he fall5 in the very narrow 

exception of section 3(b), NOnethele66, the regirtration requirement i6 a 

personal one. Once a person is required to register he mu6t furni6h 

certain data outlined in 6ection 5 indicating, inter alta, the name and address 

of each person by whom he is reimbureed, retained or employed to communicate directly with public official6 to influence legi6lation. He also is 

required to update the information periodically. 

p. 2599 
The Honorable William T. “Bill” Moore, page 6 (H-583) 

You next call our attention to section 5 of the Act which requires that 

a person regieter within five day6 after the first undertaking requiring 

registration. You ask when the first’undertaking requiring registration 

OCCUr6. It is ourview that a person is not required to register until he 

satisfies each element requiring him to register under any particular ’ 

6Ub6eCtiOn. For purposes of section 3(a)(l) he would be required to’register 

within five days after he had directly communicated with a public official 

and had spent in exce6s of $200 for that purpose. For purposes of section 

3(a)(2) and 3(b) he would be required to register a6 soon as he had directly 

communicated with a public offtcial either on behalf of another who is 

reimbursing-or compensating him or as a part of hi6 regular employment. 

Section 5(b)(.3) requires the filing of the “name and.addre68 of each 

person who made a contribution or paid a memberehip fee ia excess of 

$500 during the.preciding 12 month period to the registrant or to the p%rson 

by whom the regirtrant it3 . reimbureed, retained, or employed. . . . ” 

Section 5(d) require6 that a supplemental regirrtration be filed indicating any 

change in the registration within ten daya after the dste of the change. You 

. ask if, afteran initil registration,’ any contributions or membership fee in 

exc.ess of $500 must be reported withid.ten days of receipt. It is our opinion 

that the statute .clearly require5 an affirmative ‘answer. . 

_’ 

Section 5(b)(4)(A) requires that a registrant list the name of the person 

who ha6 retained or employed him. YoU ask whom a salaried associate in 

a law firm 6hoUld.li6t a6 the person who retains or employ6 him. 

An associate generally is employed by the firm, and the client’e’contract 

for.services to be rendered is with the firm r&her than the as6,ociate.. Nevertheless, we’think the..Act contemplates that individuals requi.red to register 

liet the per6ons whom they are representing. Thus, the associate in a law 

firm, a6 well96 it6 partne.r6, should li6t tha,fir?U’S Client as the person 

who is employing; reimbursing or retaining him. Additionally,’ the attorney 

who i6 acting on,behalf.ef his law firm ‘may need to-list the name .of the firm 

’ a6 well. Of. course, compliance will be as&ad when,the names of both 

the firm and. the client are.listed. ... 

Section 5(c) require6 that thesinformation. filed by a ‘registrant who performs 

hi6 activities on behalf of a group other than a corporation include a description 

.of the method6 by which the “registrant” develop6 &nd makes decisions on 

policy. The actual registrant is the lobbyist and not necessarily the client who’ 

.: p. 2600 
The Honorable William T. “BillV~ Moore, page 7 (H-583) 

emp!Oy6 him! Attorney General Opinion H-191 (1973). You suggest that perhape 

only the fact that the lobbyi6t : registrant follows the policy set by hi6 client 

!s @l that need be reported. We believe the Legislature intended that the decipiontmaking practice6 of the employer be described for otherwiee there would 

be no full descr/ption of the method by which policy decision6 are made. 

You finally ask several question6 about section 6 which provides: 

Sec. 6, (a) Every person registered under Section 5 

of this Act shall file with the secretary a report concerning 

the activities set out in Subsection (b) of this section. The 

report mu& be filed: 

(1) between the 1st and 10th day of each month sub6equent $0 a month in which the legislature is in session 

. . . .., 

coygring the actje$je6 during the previous month; and 

(2) between the 1st and 10th day of each month 

immediately subsequent to the last month in a calendar 

qerter covering the activities during the previous quarter. 

(b) The report shall be written, verified, and contain the 

fopqwing information: 

(1) the total expendituresmade by the registrant for 

directly communicating with a member of the legislative or 

executive branch to influence legislation, including expenditures .made by other6 on behalf of the registrant for thoee 

direct communications if the expenditure6 were made with 

hi6.expresr or implied coneent or were ratified by him. 

Such report ehall include a breakdown of expenditures into 

the following categories: 

(A) postage and telegraph; 

(B) publication and advertising; 

(C) travel and fee6; 

(D) entertainment; 

(E) gifts, loanr, and political contributions; and 

(F) other expenditure6; 

p. 26dl 
The Honorable William T. “Bill” Moore, page 8 (H-583) 

(2) a list of legislation supported or opposed by the 

registrant, by any person retained or employed by the 

registrant to appear on his behalf, or by any other 

person appearing on his behalf, together with a statement 

of the registrant’s position for or against .such legislation. 

(c) Each person who made expenditures,on behalf of 

a registrant that are required to be reported by Subsection 

(b) of this section or who has other information required to 

be reported by the registrant under this section or Section 5 

shall provide a full, verified account of his expenditures to 

the registrant at least seven day6 before the regietrant’s 

report is due to be filed. 

,. ., . 

Your first question in this series asks if a registrant is required to make 

both quarterly and monthly reports during a legislative session. Section 

6(a)(2) requires that a registrant make reports each quartei and section’6(a)(l) 

requires monthly reports during a legislative session. There is nothing in 

the Act to-suggest that the ffing.of monthly report6 obviate6 the necessity 

of filing the quarterly report6 which cover the ‘same period. Indeed the lang- I 

uage of the statute indicates that the reports are to be filed monthly during the 

legislative session and to be filed each quarter> 

- 

: * 

Your next question asks if an expenditure made for directly communicating 

with a member of ,the Legislature must be reported even though no legislation 

is mentioned or. discussed. The statutory test a6 to whether an expenditure ” 

must be reported is whether it was made for direct communication to influence i 

legislation. Although most communications which are designedto influence 

legislation will include ,discussion of a particular bill, it is conceivable that 

some communications which are designed to influence legislation will not ~,, 

directly involve a particular bill. In any event, if the communication is for 

that purpose it meets the statutory test and should be reported. 

You ask several quest* concerning’how and whether a publication expense’ 

is required to be reported. You pose different situations in which a publications 

is distributed to public officials as wellas to private citizens. As in the case 

of all expenditures, costs of publication and advertising must be reported if 

they are for directly communicating with a public official for the purpose of 

influencing legislation. Direct communication is defined in section 2(5) as 

p. 2602 
The Honorable William ‘I. “Bill” Moore, page 9 (H-583) 

“contact in person or by telephone, telegraph, or letter.” Thus, it is 

probable that an advertisement placed in a newspaper of general circulation 

would not constitute an expenditure for directly communicating with an 

official 50 long as no special action was taken to call the advertisement to 

the official’s attention. Whether a registrant should report the full or only 

a pro rata cost of adverti6ements or publications directed toward both 

private citizens and public officals depends on the facts of each case. Of 

course, report of the full cost would always be in compliance with the statute. 

An advertising .campaign designed solely to encourage private citizens to 

contact legislators is not required to be reported. Attorney General Opinion 

H-18(1973). 

You next ask several questions concerning the reporting of entertainment, 

travel, fees, gifts, loans, political contributions and other expenditures. 

You present several specific examples and ask if reporting is required in 

each instance. As indicated above, whether any particular expenditure is 

required to be reported depends on the facts surrounding that expenditure. 

If it is made for direct communication with a member of the legislative or 

executive branch for the purpose of influencing legislation then it must be 

reported. If, as a factual matter, the expenditure is not made for that 

purpose, ‘then it need not be reported. 

You finally ask if the requirement that “other expenditures” be reported 

is so vague as to cause the act to be unconstitutional. As we have indicated, 

the expenditure6 which must be reported are those incurred when a registrant 

directly communicates with members of the legislative or executive departments for the purpose of influencing legislation. This standard io virtually 

identical to the one upheld against a similar contention in United States v. 

Harrisa, 347 U.S. 612 (1953). and given the holding of that case we believe 

there is no constitutional problem. See also Attorney General Opinion 

H-18 (1973). 

SUMMARY 

Expenditure6 required to be reported under 

article 6252-9~. V. T. C. S., are those which are 

made for directly communicating with a member 

of the legislative or executive branch for the purpose 

of influencing legislation. 

p. 2603 
The Honorable William ‘I. “Bill” Moore, page 10 (H- 583) 

Persons who merely respond to a legisfator’s 

inquiries are not required to register unlces they 

do so as part of their usual course of employment. 

Members of the legislative, executive and judicial 

branches who contact legislators as part of their 

governmental duties are not required to register. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

. 

Opinion Committee 

pm 2604