The Honorable Fred Head

House of Representatives Capitol Building Austin, Texas Opinion No. H- 55 Re: The construction of

House Bill No. 8 Dear Representative Head: You have submitted to us House Bill No. 8, adopted by the 63rd Legislature and ask 17specific questions concerning its construction. Ingeneral, House Bill 8amends Title 87 ofthe Revised Civil Statutes by adding thereto Article 5428a. (References hereafter are to sections ofArticle 5428a unless otherwise noted.) Section 1contains definitions. Section 2requires each candidate (defined as any member or candidate for the House who has announced that he will seek election tothe Office ofSpeaker) to keep records of all information required by the Article. Section 3requires each candidate tofile a sworn statement with the Secretary ofState onthe first day of January, March, May, July, September and November and the day preceding each Regular and Called Session of the Legislature, until all campaign loans have been repaid, listing: (I)each contribution ofmoney received by him, or by others in behalf ofhis campaign: (2) each contribution of services and other things of value other than money received byhim or others in behalf ofhis campaign, giving the nature ofthe contribution, etc. ; (3) each loan made to him or others in behalf ofhis campaign, including specific information concerning such loan; (4) each expenditure offunds made byhim or in his behalf in excess of $10; and (5)his sworn statement onan official form designated by the Secretary ofState. Section 4has to dowith filing. Section 5provides penalties for those who willfully fail to file the statement. Section 6provides that all statements filed under the statute shall be open to public inspection. Section 7(a) prohibits corporations, partnerships, associations, firms, unions, foundations, committees, clubs or other organizations or groups ofpersons from contributing or lending or promising to contribute or p. 229The Honorable Fred Head, page 2 (H-55)

lend money or other things ofvalue to any candidate or other person for the purpose ofaiding or defeating the election ofany candidate. Subsection (b) excepts loans made inthe dunecourse of business to a candidate for campaign purposes by a corporation legally engaged inthe business of lending money. Subparagraph (c) provides penalties for violation of subsection (a)and subsection (d)provides for punishment ofany candidate who knowingly receives such illegal<contribution or loan. Section 8provides penalties for a conspiracy to circumvent any of the provisions ofthe Act. Section 9sets those purposes for which a candidate may expend campaign funds and provides a penalty inthe event ofexpenditure ofany funds for any other purpose. Section 10provides in subsection (a);

“Any individual other than a candidate may contribute his personal services and traveling expenses to aid or defeat any candidate and may expend a sum, which may not exceed $100 inthe aggregate, for the cost ofcorrespondence to aid or defeat the election ofany candidate. ” Subsection (b)provides that all other campaign expenditures must be made by the candidate from campaign funds and (c) that any individual other than a candidate who expends or authorizes the expenditure offunds in excess of $100 for correspondence or **who** expends any funds for any other purpose except personal services and traveling expenses commits a misdemeanor. Section 11excepts from those allowed to make contribution ofpersonal services, money or goods to any candidate, persons who are elected officers or employees of either the executive orjudicial branches ofthe state government and makes its violation a misdemeanor. Section I2 requires that all prosecutions under the Act must be brought by indictment rather than by complaint and information. The object of constr,uction ofa statute is toascertain the legislative intent, and not to defeat, nullify, or thwart it. City of Mason v. West Texas
p. 230The Honorable Fred Head, page 3 (H-55)

Utilities Co., 237 S.W. 2d 273 (Tex. 1951). The entire act must be construed inthe light ofall ofits provisions, obligations and requirements. Texas Turnpike Authority v. Shepperd, 279 S.W. 2d 302 (Tex. 1955); Rogers v. First National Bank ofMidland, 448 S.W. 2d 149 (Tex. Civ. APR., 1969), err. ref’d, n.r. e.). A reasonable construction should be given, not one that would lead to absurd conclusions. McKinney v. Blankenshie, 282 S.W. 2d 691 (Tex: ~1955). Your first question is:

“Subject to the prohibitions found inSection 11 ofH. B. 8, may w individual contribute money directly to a candidate’s campaign fund? Ifso, is there any limitation upon the amount of money such individual may contribute directly to a candidate’s campaign fund? ” Section IO(a)alone would seem to limit individual contributions to personal services and traveling expenses, and a sum not to exceed $100 for the cost of correspondence. However, $3(l) contemplates that a candidate will receive contributions of money. Since $7(a) makes.it illegal for anyone but an individual to contribute, it must be that, in addition to those rights specifically conferred by 510(a), individuals may also contribute funds. There is no limitation onthe amount which they may contribute. Your second question asks:

“Subject to the prohibitions found inSection 11 ofH. B. 8, may any individual contribute services and other things ofvalue directly to a candidate? If so, is there any limitation upon the amount of services and other things ofvalue such an individual may contribute directly to a candidate? ” Our answer to Question 2is the same as our answer to Question 1. Section 3(2) recognizes that a candidate may receive contributions of services and other things ofvalue other than money (which may not be contributed by any corporation or other entity than an individual, under $7. There would be no limitation as tothe amount or value ofthe services and things thus contributed.

p. 231The Honorable Fred Head, page 4 (H-55)

Your third question asks:

“May an individual contribute the use of transportation devices, operators of same, and expenses atttibutable thereto, to a candidate for use by the candidate inbehalf ofhis campaign’? if so, is there any limitation onthe value of the transportation, operators of same, and expenses attributable thereto that an individual may contribute?.I’ Itis our opinion that when $3(2),speaking of contributions “of services and other things ofvalue, other than money, ” includes contributions ofthe type about which you ask. Therefore our answer to Question 3 would be substantially,the same as our answers to 1and 2. There would be no limitation as to the value. Your fourth question is:

“Is it legal for a member ofthe Texas Legislature to contribute money, services, and other things of value to a candidate in behalf ofhis campaign? Please consider all Texas statutory law, the State Constitution and the Rules ofthe Texas House. ” Construction ofthe Rules ofthe Texas House of Representatives is a responsibility, inthe first place, ofthe Speaker himself, and secondarily, ofthe Parliamentarian. We feel itwould be inappropriate in this context for us to attempt to tell the House of Representatives what its rules mean and therefore we decline to answer insofar as that portion ofyour question is concerned. With reference to the Texas statutes, other than prohibitions against bribery and siniilar statutes of general application, we find no law prohibiting a contribution by a member ofthe Legislature to a candidate for Speaker of the House. Nor do we believe that the Texas Constitution would inhibit such contribution. House Bill 8would prohibit members and employees of the executive andjudiciary departments from contributing, thus raising aquestion as to Equal Protection; nevertheless, we feel that this represents a reasonable classification which would be upp. 232The Honorable Fred Head, page 5 (H-55)

held by the courts. Bjorgo v. Bjorgo, 492 S.W. 2d 143 (Tex. 1966); Buchanan v. State, 480 S.W. 2d 207 (Tex. Crim. 1972). Your fifth question is:

. “In reporting the contribution of services or

other things of value iBa-candidate required to state the estimated value of such service or things of value?” Section 3(2) requires that the sworn statement ofthe candidate filed with the Secretary of State shall list the following information:

“(2) Each contribution of services and other things of value
. . . , the nature ofthe contribution, the complete name and address of the contributor, and the date and value ofthe contribution;
. . . .” We believe therefore that the answer toyour fifth question is “Yes. ” .Your sixth question asks:

“What does the term ‘correspondence’ mean as used in Section 10(a) ofH. B. 8?” Inconstruing statutes we are required byArticle 10, Vernon’s Texas Civil Statutes, to give words their ordinary signification unless they are words ofart. “Correspondence” is not aword ofart. Ithas a number of meanings among which are: (1)the state or condition ofagreement of things or ofone thing with another; (2) the communication between persons byan exchange of letters; any communication by lette~rs; (3) the letters exchanged by correspondents; etc. (Webster’s Third New International Dictionary, 1967). We are ofthe opinion that to attribute to “correspondence, ” as used in $10, any meaning other than the second stated above would be to ignore the qbvious intent of the Legislature and to give to the statute an unrealistic meeting. Thus it is our understanding and opinion that $IO(a) permits an individual to spend not to exceed $100 for ,the cost of communicating with other persons by LetLer, the cost to be composed of the cost of preparing the letter and the cost of postage.

p. 233The Honorable Fred Head, page 6 (H-55)

Your seventh question is:

“Does the term ‘in the aggregate’ as used in Section IO(a) ofH. B. 8refer to the total expenditures ofany individual for the cost of correspondence from the effective date ofH. B. 8until the time of election

. or defeat of a candidate br-does it refer to expenditures relating to specific transactions separate and apart from other subsequent transactions? ” Itis our opinion that the word must mean the aggregate ofall costs for correspondence during the campaign. Your eighth question asks:

“Is a candidate required to report expenditures for correspondence made by another individual inbehalf of said candidate’s campaign when paid by stich other individual? ” Section 3governing the report to befiled by each candidate requires the report ofmoney received, ofthe contribution of services and other things of value received by him or others inbehalf ofhis campaign, ofloans made to him or such others, and of each expenditure of campaign funds made by him, “his agents, servants, staff members, or employees in behalf ofhis campaign. ” Itwould not seem to cover expenditures made by others not on
‘his staff but not contributed tohis campaign as funds or spent byhim, Therefore, OUTanswer toquestion 8would be that a candidate is not required to report expenditures for correspondence made by another individual not on his staff when they are paid by another individual. Question nine asks whether a candidate is required to report personal services ofanother individual inhis behalf when paid by such other individual. While an individual is authorized to contribute his personal services, we see nothing inthe Act which would authorize an individual to purchase personal services ofanother in behalf ofthe campaign. However, in either event, §3(2) would seem to require the candidate to report each contribution of services received by him.

p. 234The Honorable Fred Head, page 7 (H-55)

Your tenth question is:

“Is a candidate required to report traveling expenses ofanother individual inbehalf of said candidate’s campaign when paid by such other individual? ”

. ‘ -. Ifan individual, while contributing his own personal services, travels and incurs expenses which he himself pays, we do not believe that the candidate is required to report those expenses, provided the individual is not onthe candidate’s staff. [Sec. 3(4)] Your eleventh question asks:

“May a candidate expend funds for travel expenses incurred by House members attending political and other meetings in behalf ofhis candidacy? ‘! Section 9(a)(l) lists as apermissible expenditure ofcampaign funds: “travel for the candidate, his immediate family, and his campaign staff. ” Ifanother member of the House is also a member of the candidate’s campaign staff then it is our opinion that the candidate niay expend funds for his travel expenses. Ifhe is not a member ofthe staff, then his expenses cannot be paid. Your twelfth question asks:

“May a candidate expend funds for travel expenses incurred by nonpaid staff and supporters attending political and other meetings inbehalf of his candidacy? ” Referring again to §9(a)(1)ofthe act, it is our answer that as to the campaign staff, whether paid or not, campaign funds may be used to cover the expense oftravel. Travel expenses for persons who are merely supporters but not staff members and not members ofthe candidate’s family could not legitimately be paid.

p. 235The Honorable Fred Head, page 8 (H-55)

Your thirteenth question asks:

“Does H.B. 8require the filing of expenditures made in behalf ofa speaker’s campacgn of less than $lO.OO? Ifso, must such afiling list name ofperson paid and purpose ofexpenditure?”

. l -- Section 3(4) indefining expenditures which must be reported states:

“Each expenditure of campaign funds made by him, his agents, servants, staff members or employees in behalf ofhis campaign, the complete name and address of each person to whom apayment in excess often dollars ($10.00) is made and the purpose of each expenditure.
. . .I’ The ten dollar limitation, in our opinion, only applies to the listing of the name and address ofthe recipient and the report must list each expenditure and must give the purpose of each~expenditure. The name ofthe recipient is to be listed only.in the event the expenditure exceed $10. Your fourteenth question asks:

“Does the prohibition found inSection 11of H. B. 8violate any state or federal constitution provision? ” We have previously alluded to the exclusion by 511of officers or employees ofeither the.executive orjudicial branch ofthe state government from those who may contribute services, money or goods toward the candidacy ofany person for the office ofSpeaker ofthe House ofRepresentatives. The problem, ifthere is one, is one ofequal protecti,on guaranteed both by the Federal and the State Constitutions. However, under each Constitution, the Legislature may classify persons andtreat persons differently. So long as the,classification is not arbitrary and capricious, it is not unconstitutional. Where, as inthis case, the election involved concerns the inner workings of the legislative branch ofthe government, we are not able to state

p. 236The Honorable Fred Head, page 9 (H-55)

that exclusion ofinfluence by the executive andjudicial branches is without reason or is impermissible. Itis our opinion therefore that $11does not violate any State or Federal constitutional provision.

Your fifteenth question asks:

. “Other than the prohibitions ofSection 11of

H. B. 8,are State officials or employees in any way prohibited from contributing money, services, and other things of value directly to a candidate’s campaign fund? ” 1tis our opinion that state officials or employees, other than those excluded by $11, are not prohibited from contributing money, service and other things of value directly to a candidate’s campaign fund. Question sixteen asks:

“May all entities that are legally engaged in the business oflending money and that have continuously conducted such business for more than one year make loans to a candidate?” After excluding from those who might contribute to a candidate’d’fund corporations, partnerships, associations, firms, unions, foundations, committees, clubs or other organizations or groups ofpersons, 57(b) states: “This section does not apply to loans made in the due course of business to candidate’s for campaign purposes by a corporation that is legally engaged in the business of lending money and that has continuously conducted the business for more than one year prior to the making of the loan. ” The provision is unambiguous and applies only to corporations. Other entities, even though legally engaged in the business of lending money, etc., are prohibited by $7(a) from making loans to candidates.

p. 237The Honorable Fred Head, page 10(H-55)

Your seventeenth question asks:

“May individuals make loans to a candidate in behalf of the candidate’s campaign? ” Since individuals are not prohibited by $7(a) from lending money to a candidate and since there is no litiitation or prohibitions upon the amount which may be donated by an individual to a candidate, it is our opinion that individuals may make loans to a candidate inbehalf of,his campaign. SUMMARY House Bill 8, for the most part, is unambiguous and must be read literally with reference to who may and may not contribute to the campaign of candidates for election to the office of Speaker of the House, the amounts of such contributions, the extent of expenditures which may be made of campaign funds, and other similar matters. Very truly yours,

c/Attorney General of Texas APPR,&ED:

DAVID M. KENDALL, Chairman Opinion Committee

p. 238