The Attorney General of Texas 

March 17, 1980 

MARK WHITE 

Attorney General 

Colonal James R. Adams, Director 

Texas Department of Public Safety 

5805 N. Lamar Boulevard 

Austin, Texas 78773 

Opinion No. RW- 14 9 

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 by the statute. The statute provides in pertinent 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 

perscm violating any provision of this subsection shall 

forfeit his position 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 Workers of 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. 
, - 

-” 

Colonel James B. Adams - PageTwo (MW-149) 

413 U.S. at 618. We conclude that section (a), article 44113(S), V.T.C.S., is constitutional. It 

must, however, be construed so as not to infringe upon areas of protected con@ct. 

Prohibitions against political activity by public employees are commcn. See, e.g. 

The Hatch Act, 5 U.S.C. SS 1501 et. seq.; V.T.C.S. arts. 895(c) S 34 1269(m) S 22; 3207(ef 

The obvious purpose of such statutes is to isolate political interests of employees from the 

public interest in en efficient public service. United Public Workers v. Mitchell, 330 U.S. 

75, 99 (l947), quoted in United States Civil Service Commission v. National Association of 

Letter Carriers, 413 U.S. 548; 555 (1973); Attorney ~General 0 pinion 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, S 31, 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 in partisan political activities. 

You next ask what effect, if any, the Texss Constitution, article XVI, sections 33 

and 40 may have 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 grounds that 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 and thus not 

prohibited by section (2), article 4413(S), V.T.C.S. 

You next ask: 

Can an employee of the Texas Department of Public Safety tier 

this statute be a member of an organization which: 

a) 

b) 

endorses a political 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 and warts a political 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 
.’ . 

Colonel James B. Adams - PageThree (MW-149) 

Article 4413(S), V.T.C.S., does not address membership in cfganizathms. It ‘merely 

prohibits individu& from engag@ in political activity. We believe 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 

orrzanixationO activities which are designed to further a partisan candidate’s Campaign. 

usper v. Pontikes, 414 U.S. 51, 56-57 (l973); 

391 U.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. 

You next ask: 

Can an employee work in a political candidate’s campaign (by 

giving speeches, making contributions, making telephone calls, 

transporting voters to the polls, and other 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 run for a paid political office. 

An employee of the Department may not accept compensation for holding any 

political office, but may run for and hold those offices specified in article XVI, section 40 

of the Texas Constitution. An employee, however, is prohibited by article 4413(S), section 

2, V.T.C.S., from running for a partisan political office unless the office ,is one covered by 

article XVI, section 40. See Broaderick v. Oklahoma, 413 U.S. SOI, 617; Willis V. City of 

Fort Worth, 380 S.W.2d 81mex. Civ. App. - Fort Worth 1964, writ ref’d M.e.)j Ramirez 

Plores, 505 S.W.2d 406 (Tex. Civ. App. - 

&iiGZOpiniat H-659 (1975). 

San Antonio 1973, writ r&d nr.e.)i m 

You next 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 XVI of 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 his position 

P. 479 
Colonel James 8. Adams - PaSsPour (MW-149) 

by promises of direct or indirect 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 or indirect payment for his selection. 

YOUIWZXtMkZ 

We would also like to know whether the Hatch Act (5 U.S.C.A. 

Sec. 1501, et. seq.) would have any effect on your answers Q any of 

the situations set out above? 

Employees of tha Department of Public Safety are subject to 5 U.S.C. section 1502 since 

federal funds are used by the Department. welhardt v. United States Civil Service 

Commission, 197 F. Supp. 866 (Ala. 19611, m 304 F.2d 882 (5th Cir. l962). Secti l502 

prohibits certain political activities by state 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 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Bob Gammage 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

David B. Brooks 

p. 480 
, 

Coionel James R. Adams - Page Five (m-149) 

Rob Gammage 

Susan Garrison 

Rick Gilpin 

William G Reid 

p. 481