DAN MORALES

ATTORNEY GENERAL 

### Office of the Bttornep QSenersl 

## Mate of Plexari
Febroary21,1995

Honorable Senfronia Thompson Chair Judicial Affairs committee Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910 Opinion No. DM-325
RF:, Whether Education Code section 21.939 restricts school districts from using local fimds to employ persons to monitor the activities of and supply information to legislators and state administrative agencies (RQ-680)

Dear Representative Thompson:

You ask whether section 21.939 ofthe Education Code”restrict[s] school districts from using local Emds to employ persons to monitor the activities of and supply information to legislators and state administrative agencies.” Section 21.939 provides in subsections (a) and (b):

(a) A school district may not employ a person who is required to register under Chapter 305, Government Code,* by virtue of the person’ s activities on behalf of the school district. (b) A school district may not employ a person whose primary duties are activities related to proposed legislation or administrative action, including supplying information to members of the legislative
or executive branch, obtaining information from members of the legislative or executive branch, monitoring the progress of proposed legislation or administrative action, or acting as an advocate or proponent of proposed legislation or administrative action.

‘ChapleT 305 ofthe Govemmenlcode generally requires pemonswbo spendor8reumlpcnsated in certainamamts “to communicate diredy with one or moremembers of the legi5lativeor executive branchto intluena kgislation or administrative action”to register

with the Texas Etbks Commission. Wt Code 8 305.003(a). The fegistmtion requirement also applies to a pemotIwho “as partof his regular employment”makes such communications,even if be recciws no wqensation for such kxmmonicatiomapartfrom his regularsalary. Id p§305.002, .003(b). The last senlmce of section 305.003(b), however,exempts “an officn or employeeof a politicalsubdivision” from the nqi.5bation requirements

for pmons mmpensstedto make the commnaicstions in question. Section 305.026 (requiring filing of dir&sun: statementwhere “political m&division” uses public fbnds for kbby activities,with exceptions)anticipates thatpublicfunds will be used by school districtsand otherlocal publicentitiesfor pmpesesof communicating with legislators. &e also 1 T.A.C. chs. 30, 32 (Tcxas EthicsCommission

rulesrelating

to registration

andregulation

oflabbyi~W.

p. 1720Honorable Senfronia Thompson - Page 2 @M-325)

We assume that by “local funds” you mean local tax revenues of a district or other district finds from local sources. See, e.g., Educ. Code $8 16.252, .302. To the extent that the prohibitions set out in section 2 1.939, subsections (a) and (b) on school districts’

“employing” lobbyists or persons whose “primary duties” relate to proposed legislation or administrative action, apply, it does not matter whether a district’ s f&ids used to compensate such persons are 

### from local or other sources. There is simply no basis in the language of the section 21.939 prohibitions for finding an exception 

### to their application where “local” funds of a district are used rather than other district &nds for the

“employment” in question.

You also ask: “[IIf Section 21.939 does prohibit the use of local tlmds to hire persons engaged in lobbying activities, does Section 21.939 violate the free speech and equal protection clauses of the constitutions of the United States and Texas.” See U.S. Const. amends. I, XIV; Tex. Const. art. I, $4 3, 3a, 8; see also Tex. Const. art. I, § 27 (right to petition). You suggest that “[iInasmuch as other units of local government with elected bodies are permitted to employ such persons, it does not seem that the Legislature could permissibly restrict the rights of some, but not all, local governmental bodies.” An agency or subdivision of the state, such as a school district, does not itself possess the personal rights of free speech and equal protection you allude to. See BOJJMY.Culveri, 467 S.W.2d 205, 210 (Tex. Civ. App.-Austin 1971, writ refd n.r.e.) (“[A] subdivision of the State. does not have rights which are protected under the First and Fourteenth Amendments from State action”); 

### McGregor Y. Chwson, 506 S.W.2d 922,929 (Tex. Civ. App.-Waco 1974. no writ) (“An agency created by a state for the better ordering of government has no privileges, immunities, or rights under the State and Federal Constitutions which it may invoke in opposition to the will of its creator.“) See also 

### Williamsv.Mayor and Ci!y Council,289 U.S. 36 (1933).

p. 1721Honorable Senfronia Thompson - Page 3 (~~-325)

SUMMARY

The prohibitions set out in subsections (a) and (b) of Education Code section 21.939 on school districts’ “employing” lobbyists or persons whose “primary duties” relate to proposed legislation or administrative action, apply regardless of whether a district’s fimds used to compensate such persons are from local or other sources. A school district does not itself possess ~the persona) rights of free speech and equal protection under the state or federal constitutions.

DAN MORALES Attorney General of Texas

JORGE VEGA First Assistant Attorney General

SARAH J. SHIRLEY Chair, Opinion Committee Prepared by William M. Walker Assistant Attorney General

p. 1722