September 27, 1988 

Mr. Marlin W. Johnston 

Commissioner 

Texas Department of Human 

Services 

P. 0. Box 2960 

Austin, Texas 78769 

Dear Mr. Johnston: 

Opinion No. JM-957 

Re: Political activity by 

employees of the Texas 

Department of Human Services (RQ-1471) 

You ask two questions regarding political activity by 

employees of the Department of Human Services. First, YOU 

ask whether an employee may become a candidate for the 

political party office of county or precinct chairman 

without violating 5 U.S.C. section 1502(a)(3). Further, YOU 

ask whether the offices of county and precinct chairman may 

be considered Wonpartisan 'I as that term is used in 5 U.S.C. 

section 1503. 

Political activity of officers and employees of the 

Department of Human Services (DHS) is governed by section 

21.009 of the Human Resources Code which provides in 

pertinent part: 

(b) An officer or employee of the department is subject to all applicable federal 

restrictions on political activities. 

However, an officer or employee retains the 

right to vote as he or she pleases and may 

express his or her opinion as a citizen on 

all political subjects. 

(c) An officer or employee of the department who violates a provision of this section 

is subject to discharge or suspension or 

other disciplinary measures authorized by the 

department's rules. 

Hum. Res. Code 5 21.009. 

The "federal restrictions on political activities" 

referred to in subdivision (b) above are found in the Hatch 

p. 4851 
Mr. Marlin W. Johnston - Page 2 (JM-957) 

Act. 5 U.S.C. 5 1501 et seq. Section 1502(a) (3) prohibits a 

state or local officer or employee from seeking elective 

office. Section 1501 (4) provides: 

(4) 'State or local officer or employee' 

means anindividual employed by a State or 

local agency whose principal employment is in 

connection with an activity which is financed 

in whole or in part by loans or grants made 

by the United States or a Federal agency, but 

does not include [certain exceptions not 

relevant here]. 

5 U.S.C. s 1501 (4). 

The determination of whether a particular individual's 

"principal employment" brings him within that definition is 

a fact question. We do not resolve questions of fact in the 

opinion process. Attorney General Opinion JM-413 (1986). 

Therefore, for the purpose of this opinion, we will assume 

that the employees about whom you inquire meet that 

definition and are included within the restrictions of the 

remainder of the act. 

Before 1975, the terms of the Hatch Act prohibited the 

targeted individuals from holding political party offices. 

gee., Oklahoma . United St&s&civil Service 

127v (1947) 

comm is- 

&2ll, 330 U.S. in 1974 Congress 

amended the statute so that *itHzz?Aot have that effect. 

The amendment deleted language that prohibited state and 

local officers and employees from Vak[ing] an active part . 

in political management or in political campaigns." That 

language had been held to prohibit state employees from 

holding political party offices. &g Oklahoma suwra; 

E aelhard t v. United Stat 

F:Supp. 806, aff'd, 

Civjl rvice Comm issjon, 197 

304 F"zd .;82 (sz6l)i see also United 

Public Workers of America V. chQ, 330 U.S. 75 (1947). 

The reason for the amendment is revealed in 1974 United 

States Code Congressional and Administrative News at page 

5669, which states that the bill amends section 1502 of 

Title 5, United States Code "to provide that State and local 

officers and employees may take an active part in political 

management and in political campaigns, except #at they may 

not be candidates for elective office." 

This statement of intent is less than clear when 

applied in Texas, because in this state county and precinct 

party officers are elected. Elec. Code 8 171.022. However, 

p. 4852 
Mr. Marlin W. Johnston - Page 3 (JM-957) 

rules adopted by the Office of Personnel Management interpret the 1974 amendment as allowing state employees to hold 

party offices, including elective party offices. Those rules 

are found at Part 151, Title 5, Code of Federal Regulations. 

Section 151.101(i) defines "elective office" to mean 

"any office which is voted upon at an election as defined at 

section 151.101(f), above, but does not j.Dglude wolitical 

-office." Section 151.111 sets out permissible 

activities for affected personnel as including participation 

"in all political activity not specifically restricted by 

law and this part, including candidacy for office in a 

nonpartisan election * . and midacv for wolltlcal n r v 

office." Finally, section 151.122(f) excepts from atke 

general prohibition, candidacy "for a position of officer 

of a political party, delegate to a political 

convention, member of a National, State or local 

party 

committee 

0f.a political party, or any similar position." 5 C.F.R. 

5 151.122(f). 

We conclude that an officer or employee of the 

ment of Human Services 

Departmay run for the office of precinct 

chairman of a political party without violating the Hatch 

Act. 

You also ask whether the offices of county and precinct 

chairman may be considered %onpartisan" offices as defined 

by section 1503 of the Hatch Act. We assume that your 

question is prompted by the exclusion of nonpartisan offices 

from the Hatch Act8s restrictions. Section 1503 provides: 

Section 1502(a)(3) of this title does 

not prohibit any State or local officer or 

employee from being a candidate in any 

election if none of the candidates is to be 

nominated or elected at such election as 

representing a party any of whose candidates 

for Presidential elector received votes in 

the last preceding election at which 

Presidential electors were selected. 

5 U.S.C. g 1503. 

As stated earlier, Texas candidates for the political 

party offices of county and precinct chairman are elected at 

the primary elections. The other candidates nominated in 

those elections will represent their respective political 

parties in the succeeding general election. By its very 

terms, therefore, the exception in section 1503 cannot apply 

p. 4853 
Mr. Marlin W. Johnston - Page 4 (JM-957) 

to the offices about which you inquire. Given our answer 

to your first question, however, this fact is of no consequence. 

SUMMARY 

An officer or employee of the Department 

of Human Services may run for the office of 

county precinct chairman without violating 

the Hatch Act. 

Jzyh 

JIM MATTOX 

Attorney General of Texas 

MARYNELLHR 

First Assistant Attorney General 

LCUMCCRHARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STHANLHY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Karen C. Gladney 

Assistant Attorney General 

p. 4854