April 16, 1975

The Honorable William T. “Bill” Moore Chairman, State Affairs Committee The Senate ofthe 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 on45 questions involving the Lobby Control **Act, article**  6252-9~. Your questions are too numerous to list separately, butmany 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 anindividual who is employed by another andwho communicates with a public official toinfluence legislation is required to register under section 3 of theAct. Section 3provides:

(a) The following persons must register,with the secretary as provided in Section 5of this Act: (1) a person whomakes a total expenditure in excess of $200 in a calendarquarter, notincluding his owntravel, food, or lodging expenses, or his ownmembership dues, for communicating directly with one or more members ofthe 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 amember ofthejudicial,

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 inyour first group but they are effectively rummarized byyour 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 ofhis regular employment, ” as the quoted phrase ie used in Section 3(b)?
Iti6 our view that a person communicates with a public official or candidate within the acope ofhis regular employment when the ccrmmtnication i6 onbehalf ofand at the exprers or implied direction ofhi6 employer or is ratified byhis employer. We do notbelieve that it io necessary thata specific portion ofhi6 salary be allocable tohi6 role of communicating with members ofthe legislative and executive branches. It is sufficient thathe be employed andthat he communicate with public officials or candidates to influence legislation a6 an incident ofhis 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 thatthe 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. 2596The 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 ofquestions involves communications between an individual and a public official when the communication i6 initiated bythe public official. You offer example6 of a legislator placing a telephone call to a citizen or sending the citizen a questionnaire toascertatn. hi6 position onproposed 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 inwhich a question might arise is when the citizen is contacted in the course ofhi6 employment. You also ask whether registration is requi’red o.fan 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 byhis’ employer.
We do notbelieve that the Lobby Control Act was intended to require regietration by a person merely because in the course ofhis employment, he responded to a legislator’s telephone call or letter or appeared before a committee at the committee’6 specific request. However, neither dowe believe that the Act canbe construed to permit a subterfuge bywhich persons can avoid registration by making certain that the communication was initiated bythe public official. Persons are required to register under theAct when,they communicate directly with amember of the legislative or executive branch for the purpose ofinfluencing 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 ofmoney for lobbying activities and those who ark .paIdby other persons to represent their interests before the legislative or executive branch ofthe government, Persons who lobby onbehalf of

. . p. 2597The 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 notbelieve thatperron who merely respond to a legislator’s inquiry necessarily do 50 a6 part of their regular employment. Inmost cases re6ponding to the inquiry by the public official will notbe part of the person’5 regular employment. On the contrary, it will be anunusual andunanticipated duty. Some persons, however, may be expressly or impliedly designated bytheir employer tohandle comrnunications with public officials and such dutieo will be a usual part of their employment, These persons normally would be within the ambit ofthe 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 onthe occurrence of a direct communication with the public official to influence legislation. Inthe cases you cite **the** answer generally would depend ona factual’determin6,tion in theparticular instance ofwhether the communication was made toinfluence ,legilrlation.


### You nextask 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 ifthe 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 ofthe legislative or executive branch toinfluence legirlation is required to register under section 3(a)(2). Unlike rection 3(a)(l) this provision include6 nominimum 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 owntravel, food, or lodging expenses, or his ownmembership 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 ofthe types of expenses which might qualify see section 6(b)(l).

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

You next ark if rection 3(b) exempt6 a member of thejudicial, 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 ofperron 6pending a certain amount ofmoney to influence legi6lation. Section 3(a)(2) 

### requires regi6tration ofper6ons who lobby oh behalf of another for compensation or reimbursement. Section 3(b) provider thata perron other thana member of the legislative, executive, or judicial branch who, a6 a part ofhi6 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 tomodi& only section 3(a)(2) anddoe6 notapply to section 3(a)(l). However, the responclibilities ofmembers of the legislative and executive departments may necessarily entail the expenditure ofmoney to communicate with other members ofthese departments. Thi6 ie particularly true iitregard to members ofthe Legislature. Inaddition, the policy expreosed in 6ection 1concern6 communications by non-member5 with members of the executive and legi6lative departments. Consequently, we feel thatmembers 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 thatyou are specifically concerned with the situation inwhich registration is clearly required for the first contact but where the second contact standng alone would nothave required registration.
It should be notedthat thi6 particular rituation will rarely, if ever, occur. If a perron is lobbying onbehalf ofanother 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 bywhom he is reimbureed, retained or employed to communicate directly with public official6 toinfluence legi6lation. **He** also is required toupdate the information periodically.

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

You nextcall **our** attention to section 5 ofthe Act which requires that aperson regieter within five day6 after the first undertaking requiring registration. You ask when the first’undertaking requiring registration OCCUr6. It**is** ourview thata 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 wouldbe required to’register within five days after he had directly communicated witha public official andhad spent in exce6s of $200 for thatpurpose. For purposes of section 3(a)(2) and 3(b) hewould be required to register a6 soon as he had directly communicated with apublic offtcial either onbehalf ofanother who is reimbursing-or compensating him or as apart ofhi6 regular employment.
Section 5(b)(.3)requires the filing of the “name and.addre68 ofeach 

### person whomade a contribution or paid a memberehip fee ia excess of $500 during the.preciding 12**month** period to the registrant or to thep%rson bywhom theregirtrant it3

.reimbureed, retained, or employed.

. . . ” Section 5(d) require6 that a supplemental regirrtrationbe 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. Itis our opinion thatthe statute.clearly require5 

### an affirmative ‘ answer. .

_’ Section 5(b)(4)(A) requires thata registrant list the name of the person whoha6 retained or employed him. YoUask whom a salaried associate in a law firm 6hoUld.li6t a6 the person who retains or employ6 him.
An associate generally is employed bythe firm, andthe client’e’contract for.services to be rendered iswith the firm r&her thanthe as6,ociate.. Nevertheless, we’think **the..Act** contemplates that individuals requi.red toregister liet the per6ons whom they are representing. Thus, the associate in a law firm, a6well96 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 .ofthe firm ’ a6well. Of.course, compliance will be as&ad when,the names ofboth the firm and.theclient are.listed.

... Section 5(c) require6 thatthesinformation. filed bya‘registrant who performs hi6 activities onbehalf ofa group other than a corporation include a description .of the method6 bywhich the “registrant” develop6 &ndmakes decisions on policy. Theactual registrant is the lobbyist and not necessarily the client who’

.: p. 2600The 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 thatthe 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 ofthe method by which policy decision6 are made.
You finally ask several question6 about section 6which 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) ofthis section. The report mu& be filed: (1) between the 1st and 10thday 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 10thday of each month immediately subsequent to the last month ina 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 ofthe legislative or executive branch to influence legislation, including expenditures .made by other6 onbehalf 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, andpolitical contributions; and (F) other expenditure6;

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

(2) a list oflegislation supported or opposed bythe registrant, by anyperson retained or employed by the registrant toappear onhis behalf, or byany other person appearing onhis behalf, together with a statement ofthe registrant’s position for or against .suchlegislation. (c) Each person whomade expenditures,on behalf of a registrant thatare required tobe reported by Subsection (b) ofthis section or whohas other information required to be reported by the registrant under this section or Section 5 shall provide a full, verified account ofhis 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 tomake bothquarterly andmonthly reports during a legislative session. Section 6(a)(2) requires thata registrant make reports each quartei and section’6(a)(l) requires monthly reports during alegislative session. There is nothingin theAct to-suggest thatthe ffing.of monthly report6 obviate6 the necessity offiling the quarterly report6 which cover the‘same period. Indeedthe lang- I uage of the statute indicates thatthe reports are tobe filed monthly during the legislative session and tobe filed each quarter> - :* Your nextquestion asks if an expenditure made for directly communicating with amember of ,theLegislature must be reported even thoughnolegislation is mentioned or.discussed. The statutory test a6 towhether an expenditure ” must be reported is whether itwas made for direct communication to influence i legislation. Although most communications which are designedto influence legislation will include ,discussion ofaparticular bill, it is conceivable that some communications which are designed to influence legislation will not ~,, directly involve a particular bill. Inany event, if the communication is for thatpurpose it meets the statutory test and should be reported.
You ask several quest* concerning’how andwhether a publication expense’ is required to be reported. You pose different situations inwhich a publications is distributed to public officials as wellas toprivate citizens. As in the case of all expenditures, costs ofpublication andadvertising must be reported if they are for directly communicating with a public official for thepurpose of influencing legislation. Direct communication is defined in section 2(5) as

p. 2602The 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 takento call theadvertisement 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 onthe 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 andother expenditures. You present several specific examples andask if reporting is required in each instance. As indicated above, whether any particular expenditure is required to be reported depends onthe facts surrounding that expenditure. Ifit is made for direct communication with amember of the legislative or executive branch for the purpose ofinfluencing legislation then it must be reported. If, as a factual matter, the expenditure is notmade for that purpose, ‘then it need notbe reported.
You finally ask if the requirement that “other expenditures” be reported is so vague as to cause theact tobe unconstitutional. As we have indicated, the expenditure6 which must be reported are those incurred when a registrant directly communicates with members ofthe 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 theholding ofthat 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 amember of the legislative or executive branch for thepurpose of influencing legislation.

p. 2603The 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 ofthe legislative, executive andjudicial branches whocontact legislators as part oftheir governmental duties are not required toregister. Very truly yours,

**Attorney** General **of** Texas
APPROVED:

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman . Opinion Committee

**pm 2604**