Untitled Texas Attorney General Opinion ( 1972 )

. ,
THE A-JTORNEW GENERAL.
OP~XAS
Honorable Pat Beene Opinion No. M-1262
County Attorney
Fannin County Courthouse Re: Constitutionality of a portion
Bonham, Texas 75418 of Section (g) of Article 11. 22,
Texas Education Code
Dear Mr. Beene:
You have requested an opinion of this office concerning the constitu-
tionality of that portion of Section (g) of Article 11. 22, Texas Education
Code, pertaining to election to the State Board of Education, and which
reads as follows:
,1
~ . ~ It shall likewise be unlawful for anyone
interested in selling bonds of any type whatso-
ever to make a financial contribution to or
takepart in, directly or indirectly, the
campaign of any person seeking election to
the board. Anyone convicted of violating the
provisions of this subsection shall be punished
as prescribed by the penal laws of this state. ”
(Emphasis added).
You also have asked two other questions which we do not reach in view
of our conclusion that the challenged portion of the statute is unconstitu-
tionally vague and overbroad and hence unenforceable.
Under the above statute “anyone interested in selling bonds of any type
whatsoever” is expressly barred from exercising his political rights in
the campaign of a candidate seeking election to the State Board of Education.
Such infringements on the political ri,ghts of citizens must be “carefully
and meticulously scrutinized:’ since “any unjustified discrimination in
determining who may participate in political affairs or in the selection of
-6192-
Honorable Pat Beene, page 2 (M-1262)
public officials undermines the legitimacy of representative government. ”
Kramer v. Union Free School District, 395 U.S. 621, 626 (1969). In
this case, the Supreme Court held that the Equal Protection Clause of the
Fourteenth Amendment requires examination of such a statute to determine
whether those citizens excluded from political participation are in fact
substantially less affected than those the statute includes.
“If the exclusions are necessary to promote
the articulated state interest, we must then
determine whether the interest promoted by
limiting the franchise constitutes a compelling
state interest. ” 395 U.S. 632.
From the language of the penal statute under consideration, it is
apparent that any citizen is excluded from the exercise of his political
rights if he is interested in selling bonds of another or if he owns any kind
or type of bonds himself, even municipal or government bonds, and is
interested in selling them. Thus, the class of such citizens is substantial,
indeed, and includes not only numerous persons who have, at best, a
remote and indirect interest in State Board of Education affairs but also
includes those who may have a distinct and direct interest in the Board
decisions. We are unable to justify such an overbroad and vague classi-
fication or statutory exclusion of citizens from the exercise of their
political rights. No compelling state interest can be found to support it.
Where a statute or ordinance is so vague as to be unenforceable because
lacking in an ascertainable standard of guilt, it will be held unconstitu-
tional. See Palmer v. Enclid, 91 S. Ct. 1563 (1971); City of Carmel-by-
the-Sea v. Young, 466 P.2d 225 (Cal. Sup. 1970); Attorney General Opinion
No. M-1039 (1972).
We also observe that the term “anyone interested in selling bonds
of any type whatsoever” is ambiguous and taken literally would cover a
vast majority of the citizens. We find ourselves unable to supply, by
construction, any legally identifiable group with reasonable certainty
against which a criminal prosecution would be legally enforceable under
the legal standards required. The extent of interest and kind of interest
are left to speculation. The Supreme Court has declared that statutes
inflicting criminal penalti,es “must be so precise and unambiguous that
-6193-
. .
Honorable Pat Beene, page 3, : (M-1262),
the ordinarv person can know how to avoid unlawful conduct” and thus cannot
be infected-w‘ith vagueness. United States v. Sullivan, 332 U.S. 689 (1948):
Musser v. Utah, 333 U.S. 95 (1948); Bouie v. Columbia, 378 U.S. 347
(1964). A statute inflictine criminal nenalties will be sustained onlv if a
reasonable and practical construction can be given to the legislative
language which identifies the citizen concerned and gives fair notice of the
practices to be avoided. See U. S. v. Harris, 347 U.S. 612 (1954);
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Boyce Motor Lines,
Inc. v. United States, 342 U.S. 337 (1952).
Finally, the classification of persons excluded from political partici-
pation violates equal protection and the equality of law provisions of the
Constitution because the classification is not reasonably related to the
state interest to be protected and is therefore arbitrary and unreasonable,
not being based on a real and substantial relation to the subject of legis-
lation. 12 Tex. Jur. 2d 458, Constitutional Law, Sec. 111. There is no
conceivable relationship or basis for barring citizens from participating
in an election of a candidate for the State Board of Education simply
because they are interested in selling government bonds or bonds of
private entities which have no business or relationship with the discharge
of the duties of the members of the State Board of Education. An undefined
“interest” in the sale of any type of bonds is an insufficient legal criterion
or standard upon which to base penal violations and is a potently overbroad
and arbitrary classificati,on.
Accordingly it is our opinion that the challenged portion of Section (g)
of Article 11.22, Texas Education Code, is unconstitutional and unenforceable.
SUMMARY
That portion of Section (g) of Article 11.22,
Texas Education Code, which makes it unlawful
and a penal violation for anyone interested in
selling any bonds of any type from making a
financial contribution or taking any part in the
election campaign of any person seeking election
to the State Beard of Education is unconstitutional
and unenforceable.
-6194-
.c
Honorable Pat Beene, page 4 (M-1262)
Very truly yours,
. MARTIN
neral of the State of Texas
Prepared by John H. Banks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. AlIen, Co-Chairman
Gerald Ivey
Robert Flowers
Ben Harrison
Bob Lattimore
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-6195-