DAN MORALES 

.\TTORSGEXERAL ‘EY 

QMfice of tip Plttornep @eneral 

&date of IEexae 

December 9,199l 

Mr. Joe E. Milner 

Director 

Texas Department of Public Safety 

P. 0. Box 4087 

Austin, Texas 78773-0001 

Opinion No. DM-64 

Re: Whether the Texas Krishnas may 

distribute religious literature on Department of Public Safety property (RQ-68) 

Dear Mr. h4ilner: 

You have asked whether religious groups may distribute religious literature 

and solicit donations on property of the Department of Public Safety (the “department”). You inform us that the department has received a request from the Texas 

Krishnas for “clarification of the parameters within which our religious 

organization’s volunteers can from time to time distribute religious literatures . . . and receive donations” on the department’s property. You ask us to 

address this issue both in light of article V, section 83, of the current Appropriations 

Act, which prohibits the use of state property for private purposes, and the first 

amendment of the United States Constitution. 

We turn first to your query regarding tbe United States Constitution.l The 

first amendment of the United States Constitution provides that “Congress shall 

makenolaw... abridging the freedom of speech . . . . ’ This prohibition is equally 

.applicable to the states, and applies to the department as an entity of the State of 

Texas. See Fike v. jGn.ms, 274 U.S. 380 (1927); L. TRIBE, AMERICAN 

CONSTITUTIONAL LAW 0 11-2 at 56769 (1978).2 

‘We address these issues in tbis order, because if the United States Constitution were to require the department to aIIow the Krislmas to use its property for expressive activity, then this requirement would prcvaiI over any prohibition in the Appropriatioos Act. See U.S. Coo+ art. VI, d. 2. 

%‘he Texas Bii of Rits states that “[c]nry person shall be at liberty to speak, write or 

publish his opinions on any subject.. . and no law shaIl ever be passed curMing the Iiirty of speech 

or of the press.’ Tex Const. art. I, 0 8. Ao appeals court has suggested ia a case iovohkg expressive 

activity on public property that the Texas constitutional provisions guanoteeing freedom of expression 

are coextensive with the federal guarantees. Reed v. State, 162 S.W.2d 640,644 (Tex. App.--Texarkaoa 

1988, pet. refd). The Texas Supreme hut, however, has expressly reserved judgment on the question 

whether Texas’ guarantee of free speccb affords greater protection than the tint amendment of the 

United States Constitution O’Quinn v. Skate Bar of Tap, 763 S.W.2d 397,402 (Tex. 1988). Because 

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Mr. Joe E. Milner - Page 2 (DM-64) 

You suggest that distribution of literature and solicitation of funds are 

activities that are not protected by the first amendment. We disagree. It is clearly 

established that distributing literature is an expressive activity protected by the first 

amendment. See United States v. Grace, 461 U.S. 171, 176-77 (1983) (citing cases). 

Charitable solicitation of funds and the distribution of written materials in exchange 

for contributions or gifts have also been recognized as forms of protected speech. 

See, e.g., Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797-98 

(1985) (citing cases); He#ron v. International Socy for Krishna Consciousness, 452 

U.S. 640, 647 (1981) (citing cases). Indeed, the United States Supreme Court has 

recently reaffirmed that solicitation is a form of speech protected by the first 

amendment. See United States v..Kokinda, 110 S. Ct. 3115,3118,3126 (1990).3 

The right to engage in these forms of speech, however, is not absolute: 

Nothing in the Constitution requires the Government freely to 

grant access to all who wish to exercise their right to free speech 

on every type of Government property without regard to the 

nature of the property or to the disruption that might be caused 

by the speaker’s activities. 

Cornelius, 473 U.S. at 799-800. In balancing the government’s interest in limiting 

the use of its property against the interests of those who wish to use the property for 

expressive activity, the United States Supreme Court has identified three types of 

fora. Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 

572 (1987). These fora include the “traditional public forum,” the “public forum 

created by government designation,” and the “nonpublic forum.” Id The traditional 

public forum, a public space historically associated with the free exercise of expressive activities, includes streets, sidewalks, and parks. Grace, 461 U.S. at 177; 

Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989). But see Kokinda, 110 S. Ct. at 

you have not asked us to address the Krishnas’ request to distribute literature and solicit funds on 

department property io light of the Texas Constitution, we do not do so here. 

%‘he cases you cite are not to the contrary. See International Sock for Krishna Consciousness 

v. Lee, 925 F.Zd 576, 579 (2d Cii. 1991) (defendant sod court did not dispute that solicitation of 

contrl%utions and distribution of religious literature are protecred speech); PauI.wn v. Counry of 

Nu.wuu, 925 F.2d 65, 67 (2d Cii. 1991) (“freedom to circulate fliers implicates fundamental liberties”); 

C-Reid v. Metropolitan Tramp. Ah., 903 F.2d 914, 916 (Zd Cu. 1990) (‘music, as a form of 

expression, is protected by the Fust Amendment”). In Young v. New York City Tmnsit Ah., 903 F.&l 

146, l54-55 (2d Cii. 19X1), the court concluded that street begging is not protected speech but was 

carefd to distinguish it from solicitation of funds with a ‘soflicient nexus” with speech. 

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Mr. Joe E. Milner - Page 3 (DM-64) 

3120 (plurality opinion). A “public forum by government designation” (sometimes 

called a “limited public forum”) arises when the government has intentionally 

designated a place or means of communication as a public forum. Cornelius, 473 

U.S. at 800. The government does not create a public forum by inaction or by 

permitting limited discourse, but only by intentionally opening a nontraditional 

forum for public discourse. Id. at 802. A “nonpublic forum” is an area which is not 

by tradition or designation a forum for expressive communication. Peny Educ. Ass’n 

v. Peny Local Educatorx’Ass’n, 460 U.S. 37,46 (1983). 

In response to your query regarding the kinds of restrictions the department 

may impose on expressive activity, the proper first amendment analysis depends 

upon the nature of the state property in question. The department may enforce 

“reasonable time, place, and manner regulations” in a traditional public forum or a 

public forum created by government designation as long as the restrictions “are 

content-neutral, are narrowly tailored to serve a significant government interest, and 

leave open ample alternative channels of communication.” Grace, 461 U.S. at 177 

(quoting Perry Educ A&n); Medlin, 874 F.2d at 1089. Content-based restrictions 

are subject to the highest level of scrutiny. Medlin, 874 F.2d at 1089 (citing 

Consolidated Ediron Co. of New York v. Public Sew. Comm’n of New York, 447 U.S. 

530 (1980)). A nonpublic forum may be reserved by the department “for its 

intended purposes, communicative or otherwise, as long as the regulation on speech 

is reasonable and not an effort to suppress expression merely because public 

officials oppose the speaker’s view.” Perry Educ. Ass’n, 460 U.S. at 46. 

The department has informed us that the Krishnas have asked to distribute 

literature in a parking lot adjacent to a department office building where members 

of the public apply for various licenses. The department has further informed us 

that this area has not been open historically as a public forum and that it has never 

granted the request of any other group to use the area for expressive activity. 

Assuming these facts are true, we believe that a court would conclude that the area 

in question is a “nonpublic forum,” and therefore that the department may restrict 

access to the area as long as the restriction is reasonable and not an effort to 

suppress expression merely because department offtcials might oppose the Krishnas’ 

views. Because we are not a fact-finding body and are thus unable to take evidence 

or make findings of fact, however, we cannot determine the specific nature of the 

area in this opinion. Moreover, even assuming that the subject parking lot ir most 

properly categorized as a nonpublic forum, we would not be able to assess in the 

opinion process the reasonableness of the department’s policies or the propriety of 

department offtcials’ motives in promulgating that policy. Of course, the 

department may decide to designate the parking lot or other property as a public 

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Mr. Joe E. Milner - Page 4 (DM-64) 

forum.4 In that case, the department may enact reasonable time, place, and manner 

regulations as long as the restrictions are content-neutral, are narrowly tailored to 

serve a significant state interest, and leave open ample alternative channels of 

communication. See Heffron, supra, at 648-56.5 

Finally, you have also asked whether the Appropriations Act prohibits the 

department from permitting the Krishnas to distribute literature and solicit funds on 

its property. Section 83 of article V of the current Appropriations Act provides, “No 

person shall entrust state property to any state offtcial or employee or to anyone else 

to be used for other than state purposes.” General Appropriations Act, Acts 1991, 

72d Leg., 1st C.S., ch. 19, iI 83, at 1037. Although the legislative history of this 

language is not well-documented,6 we do not believe that this provision is intended 

to apply to the situation at hand. This provision is identical to language in article 8 

of the State Purchasing and General Services Act. See V.T.C.S. art. 601b, 6 8.03(d) 

(formerly V.T.C.S. art. 6252-6, 8 5(c), repealed by Acts 1979, 66th Leg., ch. 773, 

B 99.05, at 1960).7 That provision of the State Purchasing and General Services Act 

clearly applies solely to state-owned personal property as opposed to real property. 

See id 58.01(a) (‘This article applies to personal property belonging to the state”). 

Thus, we believe that the appropriations provision is also intended to apply solely to 

the use of state-owned personal property and is inapplicable here. Furthermore, 

even if article V, section 83, of the Appropriations Act applies to reul property, we 

believe that the transitory use of state-owned real property for expressive activity 

protected by both the United States and Texas Constitutions does not constitute 

entrustment of state property. Therefore, we conclude that article V, section 83, of 

the Appropriations Act does not prohibit the department from permitting Krishnas 

to distribute literature and solicit funds on its property. 

4We assume from your letter that the department has sufficient authority over the parking lot 

in question to designate it as a public forum. 

%%e department has not asked us to render ao opinion regarding proposed “time, place, and 

manner” regulations and, eveo if it had, it would be diiticult for os to assess the “reasonableness” of any 

such regulations in the opinion process. 

%st appropriations acts have contained identical laoguage. See AcIs 1989, 71st Leg., cb. 

1263, art. V, 0 88, at 5804, Acts 1987, 70th Leg., 2d C.S., ch. 78, art. V, 5 85, at 869; Acts 1985, 69th 

Leg., ch. 980, art. V, 0 92, at budget 514. We do not address whether this is a valid rider. 

‘7The 72d Legislature repealed article 8 of the State FIwhasii and General Services Act “on 

c&tic&ion by the comptroller of the implementation of the fwd asset component of the uniform 

statewide accounting system.” Acts 1991,72d Leg., 2d C.S., cb. 8, 0 6.01(d), at 175. The comptroller 

has not yet issued such a certification. 

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Mr. Joe E. Milner - Page 5 (DM-64) 

SUMMARY 

Distributing literature and charitable solicitation of funds are 

expressive activities protected by the first amendment of the United 

States Constitution. Balancing the Department of Public Safety’s 

interest in limiting the use of its property against the interests of those 

who wish to use the property for expressive activity requires findings of 

fact and is not amenable to the opinion process. If the department has 

not opened its property as a public forum it may restrict access to the 

area as long as the restriction is reasonable and is not an effort to 

suppress the views of a certain group. On the other hand, if it wishes to 

do so, the department may designate its property as a public forum. In 

that case, the department may enact reasonable time, place, and 

manner restrictions regulating the use of its property for expressive 

activity. Article V, section 83, of the Appropriations Act does not 

prohibit the department from permitting groups to engage in such 

activities on its property. 

yu~om~ 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Mary R. Crouter 

Assistant Attorney General 

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