May 25, 1990

Honorable John Vance District Attorney Frank Crowley Courts Bldg. Dallas, Texas 75207-4313 Opinion No. JM-1180

Re: Applicability of the Cha,ritable Raffle Enabling Act, article 179f,V.T.C.S., to a nonprofit corporation whose purpose isto oppose construction of a landfill (RQ-1962)

DearMr.Vance:

You ask two questions aboutwhether acertain organization in Dallas County isauthorized to conduct a raffle under the Charitable Raffle Enabling Act [hereinafter the act], article 179f,V.T.C.S. You tell us that the organiza-

- tion, anonprofit corporation, opposes the construction ofa

landfill near the group's community. You also tell us that the organization would use the proceeds of the raffle topay for representation before the Texas Department ofHealth in order to oppose the construction ofthe landfill because the members feel that the landfill would bedetrimental to the health of the community.

Inyour first question, you ask:

Does the group's purpose for conducting the raffle meet thedefinitions of 'charitable purpose' under art. 179f, 52(a)(2) where the purpose isto raise money topay for representation before the Texas Department of Health?
Section 3(a) of the act allows aqualified organization to conduct a raffle, and section 3(d) requires that all proceeds fromthe sale of raffle tickets be spent for the charitable purposes of the organization. Section 2(a)(2) defines "charitable purposes**as follows:

(A) benefiting needy ordeserving persons in this state, indefinite in number, by enhancing their opportunity forreligious or educational advancement, relieving them from disease, suffering, ordistress, contributing to their physical well-being, assisting them

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inestablishing themselves in life as worthy and useful citizens, or increasing their comprehension of and devotion to the principles onwhich this nation was founded and enhancing their loyalty to their government; or
(B) initiating, performing, or fostering worthy public works inthis state or enabling or furthering the erection ormaintenance of public structures in this state.

V.T.C.S. art. 179f, 52(a)(2). Along with your first question, YOU indicate your impression that the goal of this organization raises the issue of apossible conflict between subsections (A)and (B) inthat the organization isattempting to contribute to the physical well-being of the populace through the defeat of the construction of apublic work.1

We donot believe that there isany conflict between the two subsections. The use of the word "o??*to connect the two subsections of the definition clearly signifies that an organization need not find its purpose in both subP sections.

The act's definition of "charitable purposes*' closely tracks definitions used by the courts relative to the establishment of charitable trusts. Se. ea Bovd v. Frost, 196 S.W.Zd 497, 502 (Tet. 1946;; Powers v. First Nat'1 Bank of Corsicana, 161 S.W.Zd 273 (Tex. 1942); Carr v. Jones, 403 S.W.2d 181 (Tex.Civ.App. -Houston [lst Dist.] 1966,writ ref'd n.r.e.): u Zollman, American Law of Charities, § 185et sea.
The Texas Supreme Court has determined that the term "charitable purposes" has a fixedmeaning inthe law. Bovd, suora, at 501. Themeaning of that term, described as fixed in 1946, appears no less fixed in 1990,when we compare the definition found inthe act with that offered by Perry (in

1. There isauthority for the proposition that the construction ofa landfill isthe construction of a "public work." See, e.a.,e, 479 S.W.Zd 257 (Tex.1972) (forliability purposes, garbage disposal is a governmental function): Schulman v. Citv ofHouston, 406 S.W.2d 219 (Tex. Civ.App. - Tyler 1966),pet. overruled, 412 S.W.2d 34 (Tex. 1967) (manner, method, and site of garbage disposal within discretion of city council): see also Health &Safety Code chs. 361, 363, 364.

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2Perry, Trusts and Trustees 5 697 (7th ed. 1929)) and approvingly quoted by the supreme court. Id.at502. In the Powers opinion, the commission of appeals knowingly applied charitable use lawderived from tax statutes to a charitable trust established in awill. Powers. sunra, at 280. Thus, we can see no reason not to apply charitable purpose lawderived fromtaxation statutes and the law of trusts to the relatively new use of the term "charitable purposesl*inthe charitable raffle act. Although we can review relevant legal principles, we cannot make adetermination astowhether the expenditures you ask about would be for acharitable purpose. Such a determination would depend on findings of fact,which we cannot make in the opinion process. The fact that an organization isanonprofit corporation isnot, by itself, dispositive of the question of charitable purpose. River Oaks Garden Club v. Citv ofHouston 370 S.W.Zd 851 (Tex. 1963). To determine whether thepurpose of the organization ischaritable, acourt would examine at least the organization's statement of purpose in its charter or articles of incorporation, and theultimate beneficiaries. See Blocker
V. State, 718 S.W.2d 409 (Tex. Civ.App. -Houston [lst Dist.] 1986, writ ref'd n.r.e.) (charitable identity permanently established in corporate charter); powers,
- suora, (orphanage devoted to all orphans, regardless of

their religious affiliation, ischaritable).

Local prosecuting attorneys arebetter equipped tomake preliminary factual determinations in regard to whether certain conduct violates state gambling laws. Section 5(a) of the act authorizes county, district and criminal district attorneys, aswell as the attorney general, tobring action ina county or district court for an injunction or restraining order.

Inyour second question, you ask:

Does the act's exclusion of lobbying organizations, contained in 5 6(a)(3), 5 6(b)(3), and 5 6(c)(3), apply to a citizen's group which is raising funds inorder to appear before an administrative board or agency, in this case the Texas Department ofHealth?
The act and the constitutional amendment that authorize charitable raffles permit a 'Qualified nonprofit corporation" to conduct a raffle for "charitable purposes.*t Section 6of the act defines the term "qualified nonprofit organiz.ationt'and includes requirements in addition to /- incorporation as a nonprofit corporation. V.T.C.S. art.

179f, 56(a).

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The three provisions about which you ask require that tobe qualified tohold araffle, neither the organization nor itsparent organization "devote a substantial part of itsactivities to attempting to influence legislation.1'
These prohibitions on "attempting to influence legislation" are limited to exactly that. The lobby regulation act includes both traditional, legislative lobbying and, since 1983, attempts to influence administrative action. w my Gov't Code ch. 305. Inasmuch as that chapter's various provisions repeatedly contain the expression "to influence legislation believe that the legislaE&e administrative action," intended, in the Charitabyz Raffle Enabling Act, toprohibit only attempts to influence legislation. S ed Gov't Code 85 305.003(a)(l), 305.004(l), 305.:05(tj; 'seealso Gov't Code 5 305.002(l) (definition of administrative action), 305.002(6) (definition of legislation). Therefore, we conclude that opposing approval of a landfill before the Department ofHealth would not constitute an attempt to influence legislation under the act.

SUMMARY

The opposition of the approval of landfill~before the Department ofHealth doe: not constitute lobbying and does not, by itself, disqualify an organization frombeing
aqualified nonprofit corporation under the Charitable Raffle Enabling Act.

JIM MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Karen C.Gladney Assistant Attorney General

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