# The Attorney General of Texas March 17, 1980 MARK WHITE Attorney General
Colonal James R.Adams, Director Texas Department of Public Safety 5805 N.LamarBoulevard Austin, Texas 78773 Opinion No. RW- 149 Re: Constitutionality of prahibitions of political activity by Department of Public Safety Employees. Dear CoL Adams: You have requested our opinion regarding the constitutionality of section (2), article 4413(S),V.T.C.S., and you ask whether certain activities are prohibited bythe statute. The statute provides inpertinent part:

. . . No person in the Department shall contribute any money cr other thing of value for political purposes, nor shall any person in the Department engage in political activities or campaign for or against any candidate for any public office in this state. Any perscmviolating any provision of this subsection shall forfeit hisposition with the Department. You first ask whether such a limitation on political activity is constitutional. The Supreme Court tws held that political activity of public employees may be restrained. United Public Workersof America v. Mitchell, 330 U.S. 75 (1947). A statute regulating political activity of public employees does not fail for vagueness even though it does not specify every type of activity prohibited. United States Civil Service Commission v. National Association

. . . may be susceptible of some other improper applications . . . [Wle do not believe that [the statute] must be discarded in toto because some persons*arguably protected corixay or may not be caught w chilled by the statute., -
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413U.S. at 618. Weconclude that section (a), article 44113(S), V.T.C.S., is constitutional. It must, however, be construed so asnot to infringe uponareas of protected con@ct. Prohibitions against political activity by public employees are commcn. See, e.g. The Hatch Act, 5 U.S.C. SS1501et. seq.; V.T.C.S. arts. 895(c) S34 1269(m) S22; 3207(ef The obvious purpose ofsuch statutes is to isolate political interests of employees from the public interest inenefficient public service. United Public Workersv. Mitchell, 330 U.S. 75, 99 (l947), quoted in United States Civil Service Commission v. National Association of Letter Carriers, 413U.S. 548; 555 (1973);Attorney ~General0pinion M-1099 (l972L T this end, Attorney General Opinion M-1099 Q972) construed a prohibition s&in& “participat[ionl in any politicaLactivity” (V.T.C.S. art. 695c, S31, applicable to the State Department of Public Welfare) as prohibiting only partisan political activity. Section (21, article 4413(S),V.T.C.S., similarly forbids employees of the Department of Public Safety from engaging only inpartisan political activities. You next ask what effect, if any, the Texss Constitution, article XVI,sections 33 and40 mayhave insofar as this statute is concerned. Section 33 prohibits compensation to persons holding more than one civil office, while section 40 prohibits holding more than one such office, sub&et to the following exception:,

. . . State employees . . . shsll not be barred from serving as

members qf the governing bodies of school districts, cities, towns, or other local governm+ntal districts; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies. . . . Article XVI,section 40 of the Texss Constitution protects state employees from dismissal on the groundsthat they are candidates for one of the specified local offices or hold such an office. Attorney General Opinion H-659 (1975). The activity is protected andthus not prohibited bysection (2), article 4413(S),V.T.C.S. Younext ask: Can an employee of the Texas Department of Public Safety tier this statute be a member of an organization which: a) b) endorses apolitical candidate; ,actively supports a political candidate by either working in the candidate’s campaign or contributing funds to the candidate; or c) contributes to and supports another organization which actively endorses andwarts apolitical candidate? Would the answer to the whole question be any different if the employee took no part in the activities of either the perent organization or the organization supporting the candidate?

P. 478.’ .

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Article 4413(S), V.T.C.S., does not address membership in cfganizathms. It ‘merely prohibits individu& from engag@ in political activity. Webelieve that the statute does not necessarily prohibit membership or activity in an organixation which endorsea candidates. The prohibitian sgainst engqing in political activity would, however, preclude a Department of Public Safety employee from actively participating in the orrzanixationOactivities which are designed to further a partisan candidate’s Campaign. usper v. Pontikes, 414U.S. 51,56-57 (l973);

391U.S. 563 (l968); NAACP v. u976). The purpose of article 4413(S),V.T.C.S., to isolate the partisan pohtical interests of employees from the public interest in an efficient public service, does not prohibit membership alone in a political organization or a group which ,supports such ~I’I organization. Younext ask: Can an employee work in a political candidate’s campaign (by giving speeches, making contributions, making telephone calls, transporting voters to the polls, andother related activities)? We believe that the language of article 4413(S), section (2x V.T.C.S., as stated below, prohibits such activity in partisan political campaigns:

. . . No person . . . shall. . . campaign 

### for cc against any candidate for any public office in this state. You next ask whether an employee can runfor apaidpolitical office. An employee of the Department may not accept compensation 

### forholding any political office, but mayrunfor andhold those offices specified in article XVI,section 40 of the Texas Constitution. An employee, however, is prohibited byarticle 4413(S),section 2, V.T.C.S., from runningfor apartisan political office unless the office ,isone covered by article XVI,section 40. See Broaderick v. Oklahoma, 413U.S. SOI,617;Willis V. City of Fort Worth,380 S.W.2d 81mex. Civ. App.- Fort Worth1964, writ ref’dM.e.)j Ramirez Plores, 505 S.W.2d406 (Tex. Civ. App.- &iiGZOpiniat H-659 (1975). San Antonio 1973, writ r&d nr.e.)i m
Younext ask:

‘se;.officers must take the constitutional oath of office (Art. XVI, 1). Is there anything in this oath of office that either permits or forbids political activity? Section 1,article XVIof the Texas Constitution is

&signed to promote the selection of appointees on the basis of merit only, and to assure that no officer has purchased hisposition

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by promises 

### of

direct orindirect reward to those responsible for his selection Attorney General Opinion H-1027 (l977) at 2. An appointee may not engage in polltical activity as direct orindirect payment for his selection. YOUIWZXtMkZ We would also like to know whether the Hatch Act (5 U.S.C.A. Sec. 1501,et. seq.) wouldhave any effect onyour answers Q any of the situations set out above? Employees 

### oftha Department of Public Safety are subject to 5 U.S.C. section 1502since federal funds are used by the Department. welhardt v. United States Civil Service Commission, 197F. Supp. 866 (Ala. 19611, m 304 F.2d 882 (5th Cir. l962). Secti l502 prohibits certain political activities bystate employees, but is not intended to pmgpt or supersede any state law, regulating political activities. Administration News 5587,566s. 1974 U.S. congress &


### SUMMARY Section (21, article 4413(S),V.T.C.S., which limits political activity by Department of Public Safety personnel is constitutional.

MARK WHITE Attorney General of Texas JOHNW.FAINTER,JR. First Assistant Attorney 

### General TEDL. HARTLEY Executive Assistant Attorney General Prepared byBobGammage Assistant Attorney General APPROVED: OPINIONCOMMITTEE C. Robert Heath, Chairman David B. Brooks

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RobGammage SusanGarrison Rick Gilpin WilliamGReid

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