Elections Archives - Education Lawyers

March 18, 2020 By LeasorCrass

COVID-19 ALERT: Governor Allows Local May Elections to be Postponed to November

Governor Abbott issued a proclamation today that suspends provisions of the Texas Election Code to allow political subdivisions to postpone their May 2, 2020 local elections until November 3, 2020. This action is aimed at avoiding large gatherings of members of the public in the continued effort to stem the tide of COVID-19. Governor Abbott strongly encourages local election officials to take advantage of these waivers. The press release announcing the proclamation is available here.

Additionally, the Secretary of State has released an election advisory to provide guidance for political subdivisions that opt to postpone their May 2nd elections. School boards wishing to take advantage of this waiver must order the postponement by adopting a resolution containing the following items:

A reference to the proclamation that authorizes the entity to postpone their election date, and the fact that the political subdivision is exercising this authority.
Confirmation that the candidate filings for the election will remain valid for the election held on the November date and that the filing period will not be re-opened for the November election date.
Confirmation that all applications for ballot by mail (ABBMs) for voters that are voting by mail due to being over the age of 65 or due to disability will still be valid for the postponed election, and that ABBMs for voters who submitted ABBMs based on expected absence from the county would not be valid for the postponed election.
The major relevant dates for the November election, including the voter registration deadline (October 5, 2020), the deadline to submit an ABBM (October 23, 2020), and the dates for early voting (October 19, 2020 – October 30, 2020).

Boards will also need to meet by August 17, 2020 to make necessary revisions to the original order of election. Additional details may be found in the Secretary of State’s election advisory.

If your district needs assistance drafting a resolution or would like any additional guidance concerning this process, please reach out to one of our attorneys.

August 30, 2018 By LeasorCrass

Guns, Drugs, & Interloping

by Mike Leasor

Although the title sounds like that of a bad heavy metal song, it actually refers to three very recent news topics on the legal front that may affect your school district.

Guns: If your school is a polling location, the Election Judge can carry at your school.

In Opinion No. KP-0212, Attorney General Ken Paxton answers the question on whether sections 46.02 and 46.03 of the Penal Code apply to presiding election judges licensed to carry a handgun under chapter 411 of the Government Code. Section 46.03 is the statute that prevents any licensed handgun carrier, other than law enforcement and certain other exceptions, from entering on to a school premise or attending a school related activity.

Because he can, the Attorney General opined that election judges who are licensed to carry may be on school premises with their handgun while performing their duties under the Election Code. The Attorney General based his opinion on a case that is over 100 years old. He stated that in performing their duties at the polling place, the Election Code gives presiding judges the power of a state district judge to enforce order and preserve the peace. More than 100 years ago, a Texas court addressed whether that statutory authority in a predecessor statute allowed presiding judges to carry arms to a polling location. See Hooks v. State, 158 S.W. 808, 808 (Tex. Crim. App. 1913). That court concluded that because a presiding election judge had the same power as a district judge to enforce order and keep the peace, and because a district judge could carry arms to a polling location, the presiding election judge likewise had authority to do so. Id. Thus, in the event your school is used as a polling place, the official election judge may be armed.

Drugs: Epinephrine auto-injectors and defining “all hours the campus is open.”

The Texas Department of State Health Services has issued a new rule, effective August 1, 2018, that is causing concern and confusion. Texas Education Code §38.208 states that a district that adopts a policy regarding the maintenance, administration, and disposal of epinephrine auto-injectors at each campus in the district or school must ensure the policy requires that each campus have one or more school personnel members or school volunteers authorized and trained to administer an epinephrine auto-injector present during all hours the campus is open. In the past, the District has been allowed to define “all hours the campus is open.” However, the new rule defines all hours the campus is open to mean “at a minimum, during regular on-campus school hours, and when school personnel are physically on site for school-sponsored activities.”

Most districts have received this new language in the form of a new policy. The new proposed FFAC (LOCAL) accurately reflects the regulations found in 25 TAC Sections 37.601 and 37.611, which went into effect on August 1, 2018. Based on this new definition, here are some recommendations that you may want to follow:

The District could choose to discontinue the practice of unassigned epinephrine auto-injectors.
Although the District has been provided with a definition of “all hours the campus is open” in policy, it has not been provided with the definition of school-sponsored activity. The District could draft a regulation that defines school-sponsored activity.
The regulation might also include where to place the injectors, notice to parents, and who has access.
It is my understanding that TASB will be issuing a model regulation this month that addresses this issue. Additionally, TASB Legal Services is also in the process of creating guidance for districts on epinephrine auto-injectors that will address other requirements and considerations that stem from the finalized rules.

As written, this is a very onerous requirement. However, you might define school-sponsored activity as any meeting or event on school campus that requires a certified staff member to be present during that meeting. This might exclude PTAs and other groups. By placing this in a regulation, you are able to define as you wish and better control the provisions of use.

Finally, it should be noted that a person who in good faith takes, or fails to take, any action related to the administration of epinephrine auto-injectors is immune from civil or criminal liability or disciplinary action resulting from that action or failure to act. See Texas Education Code §§38.215 and 22.052(a), (b). Thus, if mistakes are made, then there is no liability for the District, only any publicity or political fallout.

Interlopers: Ejecting people from district property and their right to appeal.

In a final piece of news, the Texas Education Commissioner has updated the rules regarding the ejection of unauthorized persons on school grounds. Specifically, he has provided guidance on the appeal process, which was mandated by the legislature. The revised rule, 19 TAC §103.1207(h), requires a school district’s board of trustees to adopt a policy that uses the school district’s existing grievance process to permit a person refused entry to or ejected from property controlled by the school district to appeal such refusal of entry or ejection. The policy must permit a person appealing under this section to address the school district’s board of trustees in person within 90 days of the commencement of the appeal, unless the appeal is granted before the school district’s board of trustees considers the appeal. Additionally, subsection (g) requires a school district to post on the district’s Internet website and any campus websites a notice regarding the provisions of this section, including the appeal process set forth in subsection (h) of this section.

It is recommended that the appeal process link include the statement found in (h) and have links to Board Policies FNG (LOCAL) and GF (LOCAL). Although TASB will probably introduce a revision to Board Policy GKA (LEGAL) and (LOCAL) soon regarding the 90 day time limit to hear the appeal, districts should be mindful of the time limit if an appeal is filed in the interim.

It is worth noting that the Commissioner authored 19 TAC §103.1207(h) pursuant to Texas Education Code §37.105. This law has caused confusion and consternation among districts in that its requirements can be onerous and do not necessarily allow for immediate action. However, under a District of Innovation plan, districts may choose to be exempt from this section.

If you have additional questions regarding these three new pieces of law, please do not hesitate to contact the attorneys at Leasor Crass on this or any other school law issue.

January 18, 2018 By LeasorCrass

PAXTON ISSUES QUICK OPINION ON SCHOOL DISTRICT EFFORTS TO CREATE CULTURE OF VOTING

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.

Transportation

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.

Political Advertising

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

(B) appears:

(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.

LEASOR CRASS, P.C.

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