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oftip Plttornep @eneral &date of IEexae December 9,199l Mr.Joe E. Milner Director Texas Department ofPublic Safety P. 0. Box4087 Austin, Texas 78773-0001 Opinion No. DM-64
Re: Whether the Texas Krishnas may distribute religious literature on Department ofPublic 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 ofarticle V, section 83,ofthe current Appropriations Act, which prohibits the use of state property for private purposes, and the first amendment ofthe 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 LAW0 11-2at 56769 (1978).2

‘We address these issues in tbis order, because if the United States Constitution were to require the department to aIIowthe Krislmasto use its property for expressive activity, then this requirement would prcvaiIover anyprohibition 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 shaIlever be passed curMing the Iiirty of speech or of the press.’ Tex Const. art. I, 08. Ao appeals court has suggested ia a case iovohkg expressive activityon 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 reservedjudgment on the question whether Texas’ guarantee of free speccb affords greater protection than the tint amendment of the United States Constitution O’Quinn v.SkateBar ofTap, 763 S.W.2d 397,402 (Tex. 1988). Because

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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 UnitedStatesv. Grace, 461 U.S. 171, 176-77(1983) (citing cases). Charitable solicitation offunds and the distribution ofwritten materials in exchange for contributions or gifts have also been recognized as forms of protected speech. See, e.g., Corneliusv. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797-98 (1985) (citing cases); He#ron v. InternationalSocy 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 UnitedStatesv..Kokinda,110S.Ct. 3115,3118,3126 (1990).3 The right to engage in these forms ofspeech, however, isnot absolute: Nothing in the Constitution requires the Government freely to grant access to all whowishto exercise their right to free speech on every type of Government property without regard to the nature ofthe 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 ofits property against the interests ofthose who wishto use the property for expressive activity, the United States Supreme Court has identified three types of fora. Board ofAirportComm ’rs ofLos Angeles v.Jewsfor 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; Medlinv.Palmer, 874F.2d 1085, 1089(5th Cir. 1989). ButseeKokinda, 110S.Ct. at

you have not asked us to address the Krishnas’ request to distribute literature and solicit funds on department property io light ofthe Texas Constitution, we do not do so here.
%‘ he casesyou cite are not to the contrary. See International Sock forKrishna 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 TmnsitAh., 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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3120 (plurality opinion). A “publicforum 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 bytradition or designation a forum for expressive communication. Peny Educ. Ass’n v.Peny Local Educatorx’Ass’n, 460U.S.37,46 (1983).
In response to your query regarding the kinds ofrestrictions 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 PerryEduc 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. ofNew Yorkv.PublicSew. Comm ’n ofNew 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.” PerryEduc. Ass’n, 460U.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, webelieve 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 ofthe 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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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. SeeHeffron,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 itsproperty. Section 83ofarticle V ofthe 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, iI83, 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 ofthe State Purchasing and General Services Act. SeeV.T.C.S. art. 601b, 6 8.03(d) (formerly V.T.C.S. art. 6252-6, 85(c), repealed by Acts 1979, 66th Leg., ch. 773, B99.05,at 1960).7 That provision ofthe State Purchasing and General Services Act clearly applies solely to state-owned personal property as opposed to real property. Seeid 58.01(a) (‘This article applies to personal property belonging to the state”). Thus, webelieve that the appropriations provision is also intended to apply solely to the use of state-owned personal property and is inapplicable here. Furthermore, even ifarticle V, section 83, ofthe 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 itsproperty.

4We assume from your letter that the department has sufficient authority over the parking lot in question to designate it as a public forum.
%%edepartment has not asked us to render ao opinion regarding proposed “time, place, and manner”regulations and, eveo ifit 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, 088, at 5804, Acts 1987, 70th Leg., 2d C.S., ch. 78, art. V, 585, at 869; Acts 1985, 69th Leg., ch. 980, art.V, 0 92, atbudget 514. We do not addresswhether this is avalid rider.

‘7The72d 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, 06.01(d), at 175. The comptroller has not yet issued such a certification.

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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. Ifthe 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 viewsofa certain group. On the other hand, ifit 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 itsproperty. yu~om~

DAN MORALES Attorney General ofTexas
WILLPRYOR First Assistant Attorney General
MARY KELLER Deputy Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret.) SpecialAssistant Attorney General RENEA HICKS SpecialAssistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Mary R. Crouter Assistant Attorney General

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