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Legal Brief

Texas Attorney General Paxton Sues Texas School Districts, Alleging Violations of Electioneering Prohibition

March 19, 2024
Hans Graff

Is encouraging people to vote considered electioneering?

             In separate cases, the Texas Attorney General has sued 7 different school districts, alleging they engaged in electioneering with district resources and seeking temporary injunctions, prohibiting further communications.  In some cases, the districts agreed to the temporary injunction. In the case of Frisco ISD, the AG has now moved to hold the district in contempt for violating the agreed temporary restraining order.  

             In some cases, the communications might be questioned regarding whether they constitute electioneering, but in some of the cases, the communications laid out the facts and simply encouraged people to vote. Frisco ISD is an example. They issued the following communications from their Facebook page:

February 20, 2024- Today is the first day of early voting! Public education is always on the ballot, especially during the primaries. The Texas legislature determines public school funding. Last session, proposed legislation that tied public school funding to a voucher program failed, leaving Frisco ISD $90 million behind 2019 funding levels. Many of the seats up for election do not have competitive races during the November general election, so whoever wins the primary – in most cases – will win the November election. That means candidates we’re voting for right now will decide whether or not public schools get funded appropriately. Make your voice heard!

February 23, 2024- Very few competitive seats were left after Texas redistricted Senate and House districts in 2021. Redistricting mostly solidified which seats would be held by a Republican and which would be held by a Democrat. That means whoever wins the party’s primary race will most likely be elected in the general election in November 2024. This is why it is so important to vote in the primary elections in Texas. Early voting in the primary election is happening now and Election Day is March 5. Get out and vote!

February 27, 2024- In Texas, we have “open primaries”, which means any registered voter can vote in either party’s primary. Since redistricting has mostly solidified which seats will be held by a Republican and which will be held by a Democrat, some voters choose to vote in the primary of the party that’s most likely to win in their area, regardless of which party they normally identify with. Early voting in the primary election is happening now, and Election Day is March 5. Get out and vote!

In response, the Texas Attorney General sued Frisco, as well as 6 other school districts, seeking a temporary restraining order.  According to Mr. Paxton, the communications, “…encourage individuals to vote for candidates who support public schools and, apparently, who are against vouchers. The posts also appear to influence the reader to vote in a particular party primary.”

Frisco agreed to a temporary restraining order, which prevented Frisco from publishing the statements above, or any iteration thereof, through the use of governmental funds or resources.

On March 13, the Attorney General filed a motion to hold Frisco ISD in contempt for violating the order, alleging that on February 29, 2024, FISD published the following statement, “The state legislature determines how much money districts can receive. They have not increased that per-student amount since 2019. Since then, we’ve experienced record inflation. Now, FISD is $90 million behind in buying power.”

The punishment for contempt is a $500.00 fine, but violation of Tex. Elec. Code § 255.003 is also a class A misdemeanor.  Some districts agreed to a temporary restraining order prohibiting further communications as fighting a lawsuit is time-consuming, expensive and the remedy sought would seem to have minimal impact, but districts need to consider future needs to communicate in agreeing to any type of restraining order. In most cases, the agreed injunction stated some iteration of, the district,…”shall not use any funds or resources …,including e-mail, or other means to engage in electioneering in violation of Texas Election Code section 255.0031(a).” In the case of Frisco, the language included in the order, “or any iteration thereof,” which allowed the Attorney General to argue that they violated the TRO, when they communicated what appeared to be purely factual information.  

Section 255.003(b) states that the prohibition 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. Districts may inform their communities regarding election-related matters, as long as the communication does not advocate passage or defeat of a measure or (b-1)(2) “is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against a measure.”  

Finally, personnel should be aware that the Texas Attorney General has created a School District Electioneering  web page and an online complaint form to permit reporting of violations.  Due to the increased scrutiny regarding election communications, we recommend you consult with your attorney regarding communications to your community about elections and ballot measures.  Should any questions arise, please feel free to contact Leon | Alcala, PLLC with any election-related questions, and by all means, vote!

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