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 is to oppose 

construction of a landfill 

(RQ-1962) 

Dear Mr. Vance: 

You ask two questions about whether a certain organization in Dallas County is authorized 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, a nonprofit corporation, opposes the construction of a 

landfill near the group's community. You also tell us that 

the organization would use the proceeds of the raffle to pay 

for representation before the Texas Department of Health in 

order to oppose the construction of the landfill because the 

members feel that the landfill would be detrimental to the 

health of the community. 

In your first question, you ask: 

Does the group's purpose for conducting the 

raffle meet the definitions of 'charitable 

purpose' under art. 179f, 5 2(a)(2) where the 

purpose is to raise money to pay for representation before the Texas Department of 

Health? 

Section 3(a) of the act allows a qualified organization 

to conduct a raffle, and section 3(d) requires that all 

proceeds from the 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 or deserving persons 

in this state, indefinite in number, by 

enhancing their opportunity for religious or 

educational advancement, relieving them from 

disease, suffering, or distress, contributing 

to their physical well-being, assisting them 

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Honorable John Vance - Page 2 (JM-1180) 

in establishing themselves in life as worthy 

and useful citizens, or increasing their 

comprehension of and devotion to the 

principles on which this nation was founded 

and enhancing their loyalty to their government; or 

(B) initiating, performing, or fostering 

worthy public works in this state or enabling 

or furthering the erection or maintenance of 

public structures in this state. 

V.T.C.S. art. 179f, 5 2(a)(2). 

Along with your first question, YOU indicate your 

impression that the goal of this organization raises the 

issue of a possible conflict between subsections (A) and (B) 

in that the organization is attempting to contribute to the 

physical well-being of the populace through the defeat of 

the construction of a public work.1 

We do not believe that there is any 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, § 185 et sea. 

The Texas Supreme Court has determined that the term 

"charitable purposes" has a fixed meaning in the law. Bovd, 

suora, at 501. The meaning of that term, described as fixed 

in 1946, appears no less fixed in 1990, when we compare the 

definition found in the act with that offered by Perry (in 

1. There is authority for the proposition that the 

construction of a landfill is the construction of a "public 

work." See, e.a ., e, 479 S.W.Zd 257 

(Tex. 1972) (for liability purposes, garbage disposal is a 

governmental function): Schulman v. Citv of Houston, 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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Honorable John Vance - Page 3 (JM-1180) 

2 Perry, 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 law derived from tax statutes to a 

charitable trust established in a will. Powers. sunra, at 

280. Thus, we can see no reason not to apply charitable 

purpose law derived from taxation statutes and the law of 

trusts to the relatively new use of the term "charitable 

purposesl* in the charitable raffle act. 

Although we can review relevant legal principles, we 

cannot make a determination as to whether the expenditures 

you ask about would be for a charitable purpose. Such a 

determination would depend on findings of fact, which we 

cannot make in the opinion process. The fact that an 

organization is a nonprofit corporation is not, by itself, 

dispositive of the question of charitable purpose. River 

Oaks Garden Club v. Citv of Houston 370 S.W.Zd 851 (Tex. 

1963). To determine whether the purpose of the organization 

is charitable, a court would examine at least the organization's statement of purpose in its charter or articles of 

incorporation, and the ultimate 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, is charitable). 

Local prosecuting attorneys are better equipped to make 

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, as well as the attorney general, to bring action 

in a county or district court for an injunction or restraining order. 

In your 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 in order to appear 

before an administrative board or agency, in 

this case the Texas Department of Health? 

The act and the constitutional amendment that authorize 

charitable raffles permit a 'Qualified nonprofit corporation" to conduct a raffle for "charitable purposes.*t 

Section 6 of 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, 5 6(a). 

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The three provisions about which you ask require that 

to be qualified to hold a raffle, neither the organization 

nor its parent organization "devote a substantial part of 

its activities 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, to prohibit only attempts to influence 

legislation. S ed Gov't Code 85 305.003(a)(l), 

305.004(l), 305.:05(tj; 'see also 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 of Health would 

not constitute an attempt to influence legislation under the 

act. 

SUMMARY 

The opposition of the approval of 

landfill~before the Department of Health doe: 

not constitute lobbying and does not, by 

itself, disqualify an organization from being 

a qualified 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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