As detailed in a previous Legal Brief, in separate cases, the Texas Attorney General sued 7 different school districts, alleging they engaged in electioneering with district resources and seeking temporary injunctions, prohibiting further communications. After the lawsuits were filed, some districts agreed to the temporary injunction, while other districts declined to settle and are still engaged in litigation.  The hope may have been that settling would end the matter, but the violation of the election code is also a Class A misdemeanor.  During these civil proceedings, pro-voucher political operatives assisted residents in submitting affidavit surging the Denton and Harris County District Attorneys to prosecute the offense, and in Denton County two employees of a school district have now been charged for the offenses.  

Notwithstanding the current political atmosphere, an ability to communicate regarding school bond, tax or other election matters is vitally important information for voters. While dissemination of factual information can be critical in elections, school district employees need to be cautious about election communications and carefully tailor them to avoid crossing the advocacy line, as the statutes leave much leeway in what is permissible. Section 255.003 of the Election Code provides as follows:

·       An officer or employee of a political subdivision may not spend or authorize the spending of public funds for political advertising.

·       This section does not apply to a communication that factually describes the purposes of a measure if the communication does not advocate passage or defeat of the measure.

·       A person who violates this section commits an offense. An offense under this section is a Class A misdemeanor.

Legislation effective September 1, 2009,clarifies that an officer or employee of a political subdivision may not spend or authorize the spending of public funds for a communication describing a measure if the communication contains information that:

(1)   the officer or employee knows is false; and

(2) is sufficiently substantial and important as to be reasonably likely to influence a voter for or against the measure.

Factual information describing the measure is permissible, but no matter how much factual information about the purposes of an election is in a communication, any amount of advocacy is prohibited. A violation of the prohibition is a Class A misdemeanor. This means that a violation could lead to criminal prosecution. Also, the Texas Ethics Commission has authority to impose fines for violations of Tex. Elec. Code § 255.003.

Another provision of the Texas Election Code prohibits a school district board member or employee from using or authorizing the use of an internal mail system to distribute political advertising. An internal mail system is a system operated by a school district to deliver written documents to its board members or employees. A violation of this prohibition could also lead to the imposition of fines by the Ethics Commission or to criminal prosecution.

None of these laws prohibits participation in campaigns by school district employees on their own time.  There are no restrictions on advocacy or campaigning when no district resources are involved. District personnel should not be dissuaded from disseminating factual communications about elections, however, careful attention must be paid to avoid communications that may be misinterpreted as electoral advocacy. The Texas Ethics Commission provides some guidance regarding messages that have been determined to cross the line of advocacy. The Commission also publishes A Short Guide To The Prohibition Against Using School District Resources For Political Advertising which provides additional information.  

Districts facing high stakes elections, such as bond elections or tax ratification elections should closely consult with their bond counsel or their general counsel to assure compliance with Election Code to avoid violations of the Texas Election Code and may want to consider creating a privately funded Political Action Committee, which does not have the same restrictions on messaging.  Should questions about this Legal Brief or other election-related matters arise, please contact Leon|Alcala, PLLC for further information and guidance.

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