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 of the Govemmenl code generally requires pemons wbo spend or 8re umlpcnsated 

in certain amamts “to communicate diredy with one or more members of the legi5lative or executive 

branch to 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 pemotI who “as part of his 

regular employment” makes such communications, even if be recciws no wqensation for such 

kxmmonicatiom apart from his regular salary. Id p§ 305.002, .003(b). The last senlmce of section 

305.003(b), however, exempts “an officn or employee of a political subdivision” from the nqi.5bation 

requirements for pmons mmpenssted to make the commnaicstions in question. Section 305.026 

(requiring filing of dir&sun: statement where “political m&division” uses public fbnds for kbby 

activities, with exceptions) anticipates that public funds will be used by school districts and other local 

public entities for pmpeses of communicating with legislators. &e also 1 T.A.C. chs. 30, 32 (Tcxas 

Ethics Commission rules relating to registration and regulation oflabbyi~W. 

p. 1720 
Honorable 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 BOJJM Y. 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 

Williams v. Mayor and Ci!y Council, 289 U.S. 36 (1933). 

p. 1721 
Honorable 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