Yesterday, Attorney General Ken Paxton issued an opinion in response to Texas Senator Paul Bettencourt’s request regarding resolutions adopted by some school districts which were designed to encourage a culture of voting (the “Request”). Some of the resolutions referenced texaseducatorsvote.com and included the possibility of transporting employees and/or students to polling places. You can see the opinion here (the “Opinion”).
Bettencourt’s Request was submitted on December 12, 2017, which provided Paxton until June 11, 2018, to issue an opinion. While it was anticipated that an opinion would be issued prior to the upcoming election season, some suspect that the quick response from Paxton indicates that the Opinion was predetermined.
Bettencourt’s Request asked the following two questions:
- Does a school district providing or securing transportation for employees or students to and/or from polling places violate the Gift Clauses of the Texas Constitution?
- What legal constraints exist regarding a school district’s ability to spend or authorize the spending of public funds for political advertising or communications designed to influence voters to vote for or against a particular measure or candidate?
The “circumstances” Bettencourt described to Paxton in the Request consisted of a narrative replete with political rhetoric, unsubstantiated allegations and conclusions unsupported by any set of specific facts. Please peruse those for your own edification at the link to the Request here.
In summary, Paxton opined:
- Absent “an educational purpose,” transporting students to polling locations would constitute a gift of public funds;
- If a district employee does not have a “responsibility or duty to perform on behalf of the school district at the polling location,” then a court would likely conclude that transporting the employee to the polls serves no public purpose and would be a gift of public funds; and
- Regarding the resolution, “the use of public funds to link to an Internet website promoting a specific candidate or measure is itself a communication supporting or opposing a candidate or measure in violation of this provision.”
The Opinion is not law. Further, while Courts have stated that Attorney General opinions are highly persuasive and are entitled to great weight, the ultimate determination of a law’s applicability, meaning or constitutionality is left to the courts.
A school district must meet this three-part test to establish that an expenditure does not constitute a gift of public funds: (1) ensure that the predominant purpose is to accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds to ensure that the public purpose is accomplished and to protect the public’s investment; and (3) ensure that the political subdivision receives a return benefit. Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers’ Comp. Comm’n, 74 S.W.3d 377, 384 (Tex. 2002); Op. Tex. Att’y Gen. No. GA-0076 (2003).
The Opinion is not based upon any set of specific facts. Individual school districts must first decide whether an activity meets the above three-part legal analysis based upon facts specific to their districts. A school district’s decision could then be challenged in court and would be subject to judicial review. An injunction from the court to prohibit the district from providing this service would most likely be the worst case scenario.
Bettencourt only made vague allegations that the texaseduatorsvote.com website contains “links to other websites that are partisan in nature.” Bettencourt did not provide any facts to Paxton to establish that any link promoted a specific candidate or measure or that “political advertising” somehow occurred in connection with any school district’s resolution. The Texas Election Code defines “political advertising” as:
(16) “Political advertising” means a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:
(A) in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or
(i) in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or
(ii) on an Internet website.
Tex. Elec. Code § 251.001(16) (emphasis added). A “measure” is defined as “a question or proposal submitted in an election for an expression of the voters’ will and includes the circulation and submission of a petition to determine whether a question or proposal is required to be submitted in an election for an expression of the voters’ will.” Tex. Elec. Code § 251.001(19).
The Texas Education Code, Texas Election Code, and the Texas Ethics Commission Rules, guides, and Texas Ethics Advisory Opinions provide the legal constraints that exist regarding a school district’s ability to spend or authorize the spending of public funds for political advertising. The Texas Ethics Commission’s Sworn Complaint process and imposition of fines, as well as criminal prosecution, are the enforcement mechanisms for specific violations.
If you have questions about Paxton’s Opinion or your school district’s efforts to promote a culture of voting, please do not hesitate to contact any of the attorneys at Leasor Crass.