With recent legal actions taken by the Texas Attorney General against multiple school districts, electioneering laws have become a hot topic. These lawsuits allege that certain district communications about school vouchers amount to unlawful electioneering. Given the potential consequences—including lawsuits from the Texas Attorney General, enforcement actions by the Texas Ethics Commission (“TEC”), and even criminal penalties—it is more important than ever for school officials to understand the legal boundaries of election-related speech.
Key Legal Prohibitions
Two main statutes restrict how school districts and their employees engage in election-related communications:
- Texas Education Code § 11.169 prohibits a school board from using state or local funds or resources to electioneer for or against any candidate, measure, or political party.
- Texas Election Code § 255.003(a) bars officers or employees of a political subdivision from knowingly using public funds for “political advertising.” Further, an officer or employee of a school district may not knowingly use or authorize the use of the district’s internal mail system for the distribution of political advertising. Tex. Elec. Code § 255.0031. A violation of Sections 255.003 or 255.0031 is a Class A misdemeanor.
The TEC has historically been responsible for enforcing political advertising laws. However, recent actions by the Texas Attorney General suggest a more aggressive enforcement stance.
What Constitutes Political Advertising?
Under Texas law, “political advertising” generally includes communications that support or oppose:
- A candidate for public office;
- A political party;
- A public officer; and
- A ballot measure (i.e., a proposal submitted to voters in an election)
These communications are subject to strict restrictions when funded by public resources, whether they appear in traditional media, printed materials, or online platforms.
Permissible Communications: Issues vs. Measures
One of the key legal distinctions that is overlooked is the distinction between communications about measures (ballot initiatives) and those about issues (broader legislative topics).
TEC has previously clarified that school districts may lawfully communicate about issues—such as school vouchers—so long as they do not advocate for or against a measure on the ballot. In fact, in November 2023, TEC dismissed a complaint regarding a school district’s statements about school vouchers, affirming that such statements were not “political advertising” because they did not support a particular candidate, party, officer, or measure, but, rather, related to an issue, specifically the current controversy concerning vouchers.
Protecting against Legal Risk
For school districts concerned about compliance, Texas law provides an affirmative defense to criminal prosecution or to the imposition of civil penalties under Sections 255.003 and 255.0031 of the Texas Election Code if a person reasonably relied on an official interpretation by:
- A court;
- The Attorney General; or
- The Texas Ethics Commission.
A useful, yet underutilized, safeguard is seeking an advisory opinion from TEC before engaging in election-related communications. This proactive step can help districts navigate the gray areas of electioneering laws. Requests for advisory opinions can be sent to [email protected].
Final Takeaway
While electioneering laws are strict, school districts are not prohibited from providing factual information regarding a measure, including the consequences of a measure, so long as the communication does not advocate for the passage or defeat of the measure.
In addition to existing laws, proposed legislation seeks to impose stricter penalties. For example, SB 875 would impose a Class A misdemeanor for superintendents and trustees who engage in electioneering using district email, phones, mailing lists, or meetings organized by or held at a school district.
If you have questions about electioneering laws or how they apply to specific communications, we encourage you to consult with your legal counsel. Our school law attorneys at Brackett & Ellis are available to assist you in navigating this complex area and
can help guide you through the process of seeking an advisory opinion from the Texas Ethics Commission if needed.
This communication does not, and is not intended to, create an attorney-client relationship. These are general factual observations regarding the Texas Public Information Act. For legal advice, please contact the school law attorneys at Brackett & Ellis, P.C.
