Untitled Texas Attorney General Opinion

May 25, 1990

Honorable John Vance Opinion No. JM-1180

District Attorney

Frank Crowley Courts Bldg. Re: Applicability of the

Dallas, Texas 75207-4313 Cha,ritable Raffle Enabling

Act, article 179f, V.T.C.S.,

to a nonprofit corporation

whose purpose is to oppose

construction of a landfill

(RQ-1962)

Dear Mr. Vance:

You ask two questions about whether a certain organiza-

tion in Dallas County is authorized to conduct a raffle

under the Charitable Raffle Enabling Act [hereinafter the

act], article 179f, V.T.C.S. You tell us that the organiza-

- tion, a nonprofit corporation, opposes the construction of a

landfill near the group's community. You also tell us that

the organization would use the proceeds of the raffle to pay

for representation before the Texas Department of Health in

order to oppose the construction of the landfill because the

members feel that the landfill would be detrimental to the

health of the community.

In your first question, you ask:

Does the group's purpose for conducting the

raffle meet the definitions of 'charitable

purpose' under art. 179f, 5 2(a)(2) where the

purpose is to raise money to pay for repre-

sentation before the Texas Department of

Health?

Section 3(a) of the act allows a qualified organization

to conduct a raffle, and section 3(d) requires that all

proceeds from the sale of raffle tickets be spent for the

charitable purposes of the organization. Section 2(a)(2)

defines "charitable purposes** as follows:

(A) benefiting needy or deserving persons

in this state, indefinite in number, by

enhancing their opportunity for religious or

educational advancement, relieving them from

disease, suffering, or distress, contributing

to their physical well-being, assisting them

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Honorable John Vance - Page 2 (JM-1180)

in establishing themselves in life as worthy

and useful citizens, or increasing their

comprehension of and devotion to the

principles on which this nation was founded

and enhancing their loyalty to their govern-

ment; or

(B) initiating, performing, or fostering

worthy public works in this state or enabling

or furthering the erection or maintenance of

public structures in this state.

V.T.C.S. art. 179f, 5 2(a)(2).

Along with your first question, YOU indicate your

impression that the goal of this organization raises the

issue of a possible conflict between subsections (A) and (B)

in that the organization is attempting to contribute to the

physical well-being of the populace through the defeat of

the construction of a public work.1

We do not believe that there is any conflict between

the two subsections. The use of the word "o??* to connect

the two subsections of the definition clearly signifies that

an organization need not find its purpose in both sub-

P sections.

The act's definition of "charitable purposes*' closely

tracks definitions used by the courts relative to the

establishment of charitable trusts. Se. ea Bovd v.

Frost, 196 S.W.Zd 497, 502 (Tet. 1946;; Powers v.

First Nat'1 Bank of Corsicana, 161 S.W.Zd 273 (Tex. 1942);

Carr v. Jones, 403 S.W.2d 181 (Tex. Civ. App. - Houston [lst

Dist.] 1966, writ ref'd n.r.e.): u Zollman, American

Law of Charities, § 185 et sea.

The Texas Supreme Court has determined that the term

"charitable purposes" has a fixed meaning in the law. Bovd,

suora, at 501. The meaning of that term, described as fixed

in 1946, appears no less fixed in 1990, when we compare the

definition found in the act with that offered by Perry (in

1. There is authority for the proposition that the

construction of a landfill is the construction of a "public

work." See, e.a ., e, 479 S.W.Zd 257

(Tex. 1972) (for liability purposes, garbage disposal is a

governmental function): Schulman v. Citv of Houston, 406

S.W.2d 219 (Tex. Civ. App. - Tyler 1966), pet. overruled,

412 S.W.2d 34 (Tex. 1967) (manner, method, and site of

garbage disposal within discretion of city council):

see also Health & Safety Code chs. 361, 363, 364.

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Honorable John Vance - Page 3 (JM-1180)

i

2 Perry, Trusts and Trustees 5 697 (7th ed. 1929)) and

approvingly quoted by the supreme court. Id.at502. In

the Powers opinion, the commission of appeals knowingly

applied charitable use law derived from tax statutes to a

charitable trust established in a will. Powers. sunra, at

280. Thus, we can see no reason not to apply charitable

purpose law derived from taxation statutes and the law of

trusts to the relatively new use of the term "charitable

purposesl* in the charitable raffle act.

Although we can review relevant legal principles, we

cannot make a determination as to whether the expenditures

you ask about would be for a charitable purpose. Such a

determination would depend on findings of fact, which we

cannot make in the opinion process. The fact that an

organization is a nonprofit corporation is not, by itself,

dispositive of the question of charitable purpose. River

Oaks Garden Club v. Citv of Houston 370 S.W.Zd 851 (Tex.

1963). To determine whether the purpose of the organization

is charitable, a court would examine at least the organiza-

tion's statement of purpose in its charter or articles of

incorporation, and the ultimate beneficiaries. See Blocker

V. State, 718 S.W.2d 409 (Tex. Civ. App. - Houston [lst

Dist.] 1986, writ ref'd n.r.e.) (charitable identity

permanently established in corporate charter); powers,

- suora, (orphanage devoted to all orphans, regardless of

their religious affiliation, is charitable).

Local prosecuting attorneys are better equipped to make

preliminary factual determinations in regard to whether

certain conduct violates state gambling laws. Section 5(a)

of the act authorizes county, district and criminal district

attorneys, as well as the attorney general, to bring action

in a county or district court for an injunction or re-

straining order.

In your second question, you ask:

Does the act's exclusion of lobbying organi-

zations, contained in 5 6(a)(3), 5 6(b) (3),

and 5 6(c)(3), apply to a citizen's group

which is raising funds in order to appear

before an administrative board or agency, in

this case the Texas Department of Health?

The act and the constitutional amendment that authorize

charitable raffles permit a 'Qualified nonprofit corpora-

tion" to conduct a raffle for "charitable purposes.*t

Section 6 of the act defines the term "qualified nonprofit

organiz.ationt' and includes requirements in addition to

incorporation as a nonprofit corporation. V.T.C.S. art.

/-

179f, 5 6(a).

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The three provisions about which you ask require that

to be qualified to hold a raffle, neither the organization

nor its parent organization "devote a substantial part of

its activities to attempting to influence legislation.1'

These prohibitions on "attempting to influence legisla-

tion" are limited to exactly that. The lobby regulation act

includes both traditional, legislative lobbying and, since

1983, attempts to influence administrative action. w

my Gov't Code ch. 305. Inasmuch as that chapter's

various provisions repeatedly contain the expression "to

influence legislation administrative action,"

believe that the legislaE&e intended, in the Charitabyz

Raffle Enabling Act, to prohibit only attempts to influence

legislation. S ed Gov't Code 85 305.003(a)(l),

305.004(l), 305.:05(tj; 'see also Gov't Code 5 305.002(l)

(definition of administrative action), 305.002(6) (defini-

tion of legislation). Therefore, we conclude that opposing

approval of a landfill before the Department of Health would

not constitute an attempt to influence legislation under the

act.

SUMMARY

The opposition of the approval of

landfill~before the Department of Health doe:

not constitute lobbying and does not, by

itself, disqualify an organization from being

a qualified nonprofit corporation under the

Charitable Raffle Enabling Act.

JIM MATTOX

Attorney General of Texas

MARY KELLER

First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY

Special Assistant Attorney General

RENEA HICKS

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Committee

Prepared by Karen C. Gladney

Assistant Attorney General

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