December 29, 1986

HonorableOscar H. Mauzy OpinionNo. .JM-597 Chairman committeeon Jurisprudence Texas State Senate Re: Legalityunder article 6252-9f, V.T.C.S., of political campaign P. 0. Box 12068 activities by community college Austin, Texas 78711 students as optional course work assignment

Dear SenatorMauzy:

You request an opinion about the applicationof article 6252-9f, V.T.C.S., which prohibits state employees from engaging in certain political activities, to political campaign activities undertakenby community college students as an optional assignment in a government course. Article 6252-9f,V.T.C.S.,provides inpart:

sec. 2. Except as expresslyprohibitedby this Act, a state employee has the full rights of freedom of associationandpoliticalparticipation guaranteedby the state and federal constitutions.

Sec. 3. (a) A state employeemay not:
(1) use official authority or influence or permit the use of a program administered by the state to interferewith or affect theresult of an election or nomination of a candidate, or to achieveany otherpoliticalpurpose; or (7-I coerce, attempt to coerce, command, restrict, attempt to restrict, or prevent the payment, loan, or contribution of any thing of value to a person or political organization for a politicalpurpose. (b) For purposes of this section, a state employee does not interfere with or affect the results of an election or nomination if the employee's conduct is permittedby a law relating to his office or employment and is not otherwise unlawful.

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Sec. 4. A state employeewho violates Section 3 of this Act is subject to immediate termination of employment.

You enclose a memo written by the attorney of a public community college which states that section 3 of article 6252-9f. V.T.C.S.. brings into question the practice of allowing students to work in political campaigns as optional assignments in government courses. Thememo recommends thatno candidateor politicalparty shouldhave a disproportionatenumber of students from a classworking in a campaign

-- that is, an approximatelyequal number of students shouldwork for each of two candidatesrunning for the same office.Your two questions
are directedat thisrecommendation:

Does the prohibition against certain political activity by state employees in article 6252-9f. section 3(a)(l) in turn limit the freedom of a student in a state-supported school's government class to choose a particularpolitical campaign to work for when attaining credit in an internship program?
If not, does article 6252-9f. section 3(a)(l) prohibit a teacher or school .administratorfrom specifying a particular campaign, or from allocating students at random, more or less equally among competing campaigns, i.e., would such an allocation method constitur

. . 'use [of] officialauthorityor influence

. . . to interfere with or affect the result of an election or nominationof a candidate?'
Before we can reach questions about how such internshipprogramsmay be conducted,we must dealwith the threshold issue: Whether section 3(a) of article 6252-9f, V.T.C.S., absolutely prohibits teachers, administrators, and other employees of state supported schools from offering optional coursework which involves student participation in political campaigns. We turn to an examination of article 6252-9f, V.T.C.S., and theprohibitionsof section 3 of that statute.
The legislature enacted article 6252-9f, V.T.C.S., in 1983 as Senate Bill No. 762. Acts 1983, 68th Leg., ch. 579, at 3763. The bill was recommended by the Public Servant Standards of Conduct Advisory Committee establishedby the Sixty-seventhLegislature. Acts 1981, 67th Leg., ch. 151, at 370. The Advisory Committee stated in its final report that Senate Bill No. 762 removed the existing restrictions on political activity of state employees, except for employees of the Department of Public Safety, and outlines the extent to which all employeesmay participate in political activity. Final Report of the Public Servant Standards of Conduct Advisory Committee

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at IA (August1983). The report expressedthe opinion that theUnited States Constitutionprotected political activity of public employees to the extent that the activity occurs outside of office hours and does not involve official duties or entail use of state property. Background Report on Proposed Changes to Law Concerning Political Activity of State Employees, completed in Final Report of the Public Servant Standards of ConductAdvisory Committee at IB (August 1983); see generally, Buckley v. Valeo, 424 U.S. 1 (1976); Broadrick v. Oklahoma, 413 U.S. 601 (1973);Attorney General Opinion MW-243 (1980) (Broadrick raised but did not answer questions as to whether First Amendment protected employee in wearing campaign button off duty). The AdvisoryCommitteenoted that

[t]raditionally, the need to protect employees from coercionby supervisorshas beenmentioned as justification for prohibition of political activity. Also the state may impose some restraint on the political activities of its public employees in order to promote efficiency and integrity in public service. Nevertheless, subcoxsaittee

and full committeemembers felt that the underlyingbasis for the statutoryrestrictionsis removedwhen thepublic employee isnot on duty or performinghis official duties or utilizing state property.
Final Report of the Public Servant Standards of Conduct Advisory Committeeat IA;but seeUnited PublicWorkers ofAmerica v. Mitchell, 330 U.S. 75 (1947). 

### Thus,a major purpose of Senate Bill No. 762 was to remove restrictionson political activity of public employees. In addition, since state employees had no clearly outlined guide to participation in political activity, SenateBill No. 762 also sought to outline the extent to which they might participate in political activity. Bill Analysis to.S.B. No. 762, prepared for Senate Committee on State Affairs, filed in Bill File to H.B. No. 762, Legislative Reference Library. Section 3, in languagethat tracksprovisionsof the federal Hatch Act applicable to certain state employees, outlines the limits on a state employee'spolitical activity. See 5 U.S.C. §§1501, 1502 (Hatch Act prohibitions applicable to state employees principally employed in connectionwith a federally financed activity);Hum. Res. Code 121.009 (DHR employees subject to Hatch Act); Attorney General OpinionMU-149 (1980) (DPSemployeessubject toHatch Act).
The politicalactivity forbiddenby section 3 of article 6252-9f. V.T.C.S., was not necessarily permitted conduct before that statute became effective. Article III, section 51, of the Texas Constitution prohibits the legislature from using public funds for a nongovernmentalpurpose. Road District No. 4, Shelby County v. Allred,

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68 S.W.2d 164 (Tex. 1934); see Statev. City of Dallas, 319 S.W.2d 767 (Tex.Civ.App. - Austin 1959),aff'd, 331 S.W.2d 737 (Tex. 1960);see also Tex. Const. art. III, §52 (similar prohibition applicable= political subdivisions~); Tex. Const. art. XVI, 16 (no appropriation for private purposes). Numerous Attorney General Opinions disapprove attempts to divertpublic funds and otherpublic resources to private purposes. See, e.g., Attorney General Opinions JM-30 (1983) (state fundsmay not be used toprovideprivate individualswith telecommunications devices for the deaf);MW-532 (1982) (grantof state funds to private landowners to reforest idle lands); MU-89 (1979) (school district policy permitting teachers towork for professional associationswhile receiving salaries from the schooldistrict is unconstitutional);MW-36 (1979) (countymay not spend public funds to purchase and mail Christmas cards); MM-22 (1979) (state funds may not be granted to private individuals to pay their utility costs); M-661 (1970) (county may not donate funds to a private charity). Other provisions of law already prevent a public employee from using his official position to benefit himself in his private capacity. See Penal Code ch. 39 (abuse of office); V.T.C.S. art. 6252-9b, §§6, (provisions guarding against state officer or employee being influencedby private interest).As JusticeDouglas said in dissenting to a Supreme Court opinion that upheld the Hatch Act against challenges that itviolated employees'First Amendmentrights and that itwas void for vagueness,

no one could object if employeeswere barred from using office time to engage in outside activities whether political or otherwise.
United States Civil Service Commission v. National Association of Letter Carriers, 413U.S. 548, 597 (1973).
Thus, sections 3(a)(l) and 3(a)(2) of article 6252-9f do not prohibit conduct thatwas formerlypermissibleunder Texas law. These provisions do expressly inform state employees that they may not divert state resources to privatepolitical interests or direct their official authority to serving such interests; violation of these provisions subjects them to termination. If the college course work you describe involves violations of section 3, article 6252-9f, V.T.C.S., it probablywas also impermissibleunderprior law.

We thus turn to a central question: whether the community college personnel who are responsible for offering the optional coursework assignmentsyou describehave violated section 3(a)(l) of article 6252-9f.V.T.C.S. This sectionprovides that a state employee may not

use official authority or influence or permit the

use of a program administered by the state to interferewith or affect the result of an election

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-

P or nomination of a candidate, or to achieve any otherpoliticalpurpose. . . .
V.T.C.S. art. 6252-9f, 83(a)(l). An employee of a public junior college is a "state employee" within section 3(a)(l). See V.T.C.S. art. 6252-9f. §(l)(B), (2);Educ. Code §61.003(2). (7). - Community college coursesare reviewedby the CoordinatingBoard, Texas College and University System, before they are offered. Community colleges offer both university-parallel programs and occupational programs. Educ. Code 1130.005. A community college course of study in freshman and sophmore college work must be submitted to the Coordinating Board, Texas College and University System, for approval before it is offered. Educ. Code P130.004; see Educ. Code 9130.005 (public junior colleges renamed "commune colleges"). The board of trustees of a community college must each year submit to the Coordinating Board a comprehensive list of all courses,with a description of content and scope, to be offered the followingyear. Educ. Code 161.052. The CoordinatingBoardmay order
a deletion or consolidationof any courses as submitted. Id.; Educ. Code 5161.053-61.054; see Educ. Code 5561.060-61.063 (Coordinating Board authority over Gunity colleges). See also Educ. Code 1851.301-51.302;Attorney General Opinion M-143 (1967) (coursesmust be offered inAmericanhistory and government). The governingbody of the community college may offer government courses subject to the statutory requirements and Coordinating Board review already described. See Educ. Code 59130.002, 130.084; see also Educ. Code 023.26. The-governing body of the community college also has authority to hire and supervise employees to teach the course offerings.

In our opinion, article 6252-9f does not prohibit community college employees from authorizing and offering optional assignments which involve student work for a political campaign. We cannot provide comprehensiveguidelines for offering internship assignments; that is within the discretion of the community college trustees and the Coordinating Board. We can, however, point out some essential restrictions.
The assignments must be designed to carry out the educational purposes of the course and of the community college. The course presumably will go through the approvals required by the Education Code, and the instructor,in exercisinghis authoritydelegatedby the college trustees,will design and direct the assignments to carry out the educationalpurposes of the institution. The instructorand other employeesresponsible for thisprogrammust not allow their political preferences to influencethe operationof theprogram;decisionsabout such optional assignmentsmust be based on the educationalbenefit to the student, and not consider the benefit or detriment to the political entity. If the assignments are conducted to fulfill the

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educationalpurposes of the college, and if any.effect they may have on the political campaign is entirely incidental and minimal in degree, the instructor and other responsible college employees will not, in our opinion, violate section 3(a)(l) of article 6252-9f, V.T.C.S.

You ask whether a government student may be assigned to participate in a particular campaign against his will. You have characterized the internshipassignments as optional. Presumably,no student is required to participate in an internship at all, and students may complete that segment of the course work by preparing some other type of assignment. Moreover, section 3(a)(2) prohibits a state employee from coercing the "contribution of any thing of value

. . . to a political organisation for a political purpose." This prevents a teacher from "coercing" a student to contribute his services to a political organizationfor a politicalpurpose.
SUMMARY
Section 3(a)(l) of article 6252-9f, V.T.C.S., does not absolutely prohibit a community college from offeringas coursework in a governmentclass an optional assignment which involves student participation in a political campaign. Section 3(a)(2) of the statute prevents a teacher from "coercing"a student to contributehis services to a political organisationfor a politicalpurpose.

JIM MATTOX Attorney General of Texas

JACKHIGHTONER First AssistantAttorney General

MARY KELLER ExecutiveAssistantAttorneyGeneral

ROBERT GRAY SpecialAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee Preparedby SusanL. Garrison AssistantAttorney General 1

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