Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 17, 2018

The Honorable Paul Bettencourt Opinion No. KP-0177
Chair, Select Committee on Property
Tax Reform Re: Restrictions on the use of a school
Texas State Senate district's public funds to provide transportation
Post Office Box 12068 to and from polling places and for political
Austin, Texas 78711-2068 communications for or against a particular
measure or candidate (RQ-020 I-KP)

Dear Senator Bettencourt:

You ask two questions related to the authority of a school district to spend public funds to
promote voting among students and employees within the school district. 1 As background, you
explain "that several Texas independent school districts recently adopted a resolution purportedly
designed to create a culture of voting" in the districts. 2 Request Letter at 1. You raise concerns
about certain portions of these resolutions, particularly those portions that "espouse a political
perspective on education," and ask whether the district may use public funds to implement them.
Id. at 1, 4.

You first ask whether a school district may use public funds to provide transportation for
employees or students to and from polling places. Id. at 4. You explain that the resolution adopted
by some school districts includes the following provision: ·

That the Board of Trustees of ISD authorizes the
administration to , take steps necessary to ensure maximum
participation by District employees and eligible students in the
elections process, which may include: ... Where feasible, providing
District transportation to and from polling places ....

Id. at 2. You ask whether a district rriay use "taxpayer-funded transportation" in this way. Id.

Independent school district boards possess only those powers expressly conferred by law
or necessarily implied from the powers conferred. Stout v. Grand Prairie Indep. Sch. Dist., 733

1Letter from Honorable Paul Bettencourt, Chair, Senate Select Comm. on Prop. Tax Reform, to Honorable

Ken Paxton, Tex. Att'y Gen at 4 (Dec. 12, 2017), https://www.texasattomeygeneral.gov/opinion/requests-for-
opinions-rqs ("Request Letter").
2 You indicate that "the resolution can be found at http://texaseducatorsvote.com/." Id. at 1.
The Honorable Paul Bettencourt - Page 2 (KP-0177)

S.W.2d 290,296 (Tex. App.-Dallas 1987, writ refd n.r.e.) (explaining that "a school district ...
exercises only such powers as are delegated to it by the state"). The Legislature has given school
district boards "the exclusive power and duty to govern and oversee the management of the public
schools of the district." TEX. EDUC. CODE§ 11.151(b). Furthermore, the Legislature provided that
"[l]ocal school funds ... may be used for ... purposes necessary in the conduct of the public
schools determined by the board of trustees." Id.§ 45.105(c). That said, school districts must
abide by any statutory or constitutional restraints on their spending of public funds. Relevant to
your request, the Texas Constitution prohibits a political subdivision of the State from granting
"public money or thing of value in aid of, or to any individual ... whatsoever." TEX. CONST. art
III, § 52(a); see also id. § 51 (likewise prohibiting the Legislature from authorizing a grant of
public money to an individual). Article III, section 52(a), prevents the gratuitous grant of public
funds to any individual. Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995).
"A transfer of funds for a public purpose, with a clear public benefit received in return, does not
amount to a lending of credit or grant of public funds in violation of article III, sections 51 and
52." Id. To answer your question, we must therefore analyze whether providing transportation
for employees or students to and from polling places serves a public purpose of a school district.

We first address the provision of transportation for students to and from pollirig places.
The Legislature expressly directed public schools to prepare "students to be thoughtful, active
citizens." TEX. EDUC. CODE§ 4.00l(b) (outlining the overall objectives of public education); see
also id. § 11.002 (providing that school districts "have the primary responsibility for implementing
the state's system of public education"). School districts must offer a required curriculum in
government. Id. § 28.002(a)(l)(D). Pursuant to this requirement, the State Board of Education
implemented regulations requiring that high school students "understand the responsibilities,
duties, and obligations of citizenship such as being well informed about ... voting," as well as
understand "the voter registration process and the criteria for voting in elections." 19 TEX. ADMIN.
CODE § l 13.44(c)(14)(C)-(D); see also TEX. EDUC. CODE § 28.002(c) (requiring the Board to
identify essential knowledge and skills and requiring each district to provide instruction in them at
appropriate grade levels). 3 Thus, the Legislature and the State Board of Education have expressly
directed school districts to promote voter education among the students of a school district.
However, absent an educational purpose in providing students transportation to the polling
locations, a court would likely conclude that the transportation serves no public purpose of the
school district and therefore violates article III, section 52(a) of the Texas Constitution. 4

3
1n addition, high school principals must serve as deputy voter registrars and on multiple occasions
throughout the year "distribute an officially prescribed registration application form to each student who is or will be
18 years of age or older during that year." TEX. ELEC. CODE§ 13.046(a), (d). The Secretary of State implemented
rules requiring the principal to review the applications for completeness and allowing the principal to assist in
completing the forms. l TEX. ADMIN. CODE§ 81.7(d)(2)(C)(i)-(ii).
4
Briefing submitted in response to the opinion request suggests that a school district could decide to transport
students to a local polling place for something akin to a field trip. See Letter from Barry Haenisch, Exec. Dir., Tex.
Ass'n of Cmty. Schs. at 5 (Jan. 4, 2018). However, section 61.001 of the Election Code, titled "Bystanders
Excluded," expressly prohibits a person from being in a polling place except as permitted by the Election Code. TEX.
ELEC. CODE§ 61.00l(a). The Election Code makes no provision.for student observers, and a school district would
have no authority to provide educational instruction inside a polling location while voting takes place.
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We separately consider the provision of transportation for employees of the school district
to and from polling places. A school district may provide for any employee travel expenses that
are necessary in the conduct of the public schools. See TEX. EDUC. CODE §45.105(c); see Tex.
Att'y Gen. Op. No. H-133 (1973) at 4 (recognizing that payment of school district trustee travel
expenses may or may not be authorized under the law, depending on whether they are "necessary
in the conduct of the public schools"). However, absent the performance of some educational
function on behalf of the district's students, we question whether providing transportation for
employees to and from polling places serves a public purpose of the school district. See Tex. Mun.
League Intergov 'ti Risk Pool v. Tex. Workers' Comp. Comm 'n, 74 S.W.3d 377, 384 (Tex. 2002)
(explaining that the predominant purpose of an expenditure of public funds must serve a public
purpose, not benefit private parties). A prior opinion of this _office concluded that a school district
could not fund travel expenses "of persons who have no responsibilities or duties to perform" on
behalf of the school district. Tex. Att'y Gen. Op. No. MW-93 (1979) at 2 (addressing a school
board's authority to pay travel expenses of the spouse of a trustee). If a school district employee
has no responsibility or duty to perform on behalf of the school district at the polling location, a
court would likely conclude that a school district's funding of transportation for that individual to
the polling location serves no public purpose of the school district and violates article III, section
52(a) of the Texas Constitution.

You also ask "[w ]hat 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." Request Letter at 4.
Two separate provisions prohibit a school district from supporting a candidate or measure in an
election. Section 11.169 of the Education Code provides:

Notwithstanding any other law, the board of trustees of an
independent school district may not use state or local funds or other
resources of the district to electioneer for or against any candidate,
measure, or political party.

TEX. EDUC. CODE § 11.169. The Education Code does not define the term "electioneer." A
common understanding of the term is "to work for the election of a candidate or party." MERRIAM-
WEBSTER'S COLLEGIATE DICTIONARY 400 (11th ed. 2005); see also TEX. ELEC. CODE
§ 85.036(±)(2) (defining "electioneering" for purposes of a specific Election Code provision to
include "the posting, use, or distribution of political signs or literature"). Thus, the Legislature
prohibited a board of trustees of a school district from using public funds to work for a particular
measure or candidate.

In addition, subsection 255.003(a) of the Election Code provides: "An officer or employee
of a political subdivision may not knowingly spend or authorize the spending of public funds for
political advertising." TEX. ELEc. CODE § 255.003(a). A school district is a political subdivision
and is therefore subject to this provision. See id § 1.005(13) (defining "political subdivision" for
purposes of the Election Code to include counties, cities, and school districts). The Legislature
defined "political advertising" as:
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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.
Id § 251.001(16). A person who violates section 255.003(a) of the Election Code commits a Class
A misdemeanor. Id. § 255.003(c). 5 While no reported court cases construe this provision, the
Texas Ethics Commission addressed the application of this statute to two factual scenarios
involving school districts. In Ethics Advisory Opinion No. 45, the Commission concluded that
section 255.003 prohibits distributing political advertising using school district employees on
school district time or with school district equipment. See Tex. Ethics Comm'n Op. No. 45 (1992).
Similarly, the Commission concluded that placing political advertising in a teachers' lounge would
involve spending public funds in violation of section 255.003. See Tex. Ethics Comm'n Op. No.
443 (2002). Thus, in addition to prohibiting the actual publishing of political advertising,
subsection 255.003(a) prohibits the use of school district staff, facilities, or other resources to
advertise for or against a candidate or measure.

You indicate that the resolution adopted by several school districts "links to other websites
that are partisan in nature." Request Letter at 1. We see no significant distinction between
distribution of political advertising in a teachers' lounge and distribution electronically through
e-mail or an Internet website. Thus, a court would likely conclude that 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 section 11.169 of the Education
Code and subsection 255.003(a) of the Election Code.

5
It is an "affirmative defense to prosecution ... that an officer or employee of a political subdivision
reasonably relied on a court order or an interpretation of this section in a written opinion issued by: (I) a court of
record; (2) the attorney general; or (3) the [Texas Ethics Commission]." TEX. ELEC. CODE§ 255.003(d).
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SUMMARY

Absent an educational purpose in providing students
transportation to the polling locations, a court would likely conclude
that the transportation serves no public purpose of the school district
and therefore violates article III, section 52(a) of the Texas
Constitution.

If a school district employee has no responsibility or duty to
perform on behalf of the school district at the polling location, a
court would likely conclude that a school district's funding of
transportation to the polling location for that individual serves no
public purpose of the school district and therefore violates article III,
section 52(a) of the Texas Constitution.

Section 11.169 of the Education Code prohibits a board of
trustees of a school district from using public funds to work for a
particular measure or candidate. In addition, subsection 255.003(a)
of the Election Code makes it a criminal offense for an officer or
employee of a school district to knowingly spend or authorize the
spending· of public funds for political advertising. A court would
likely conclude that 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.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee