TEXAS ETHICS COMMISSION
December 14, 2011
Whether a communication relating to a measure election complies with section 255.003 of the Election Code. (AOR-564)
The Texas Ethics Commission has been asked to consider whether a communication relating to a measure election complies with section 255.003 of the Election Code. The Coryell County Commissioners Court approved placing a jail and law enforcement center bond initiative on an election ballot. The requestor prepared a brochure that he wants to distribute using public funds, including public resources. A copy of the brochure is attached to this opinion as an appendix.
Section 255.003 of the Election Code provides, in relevant part, as follows:
(a) An officer or employee of a political subdivision may not knowingly spend or authorize the spending of public funds for political advertising.
(b) Subsection (a) 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.
(b-1) An officer or employee of a political subdivision may not spend or authorize the spending of public funds for a communication describing a measure if the communication contains information that:
(1) the officer or employee knows is false; and
(2) is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the measure.
(c) A person who violates Subsection (a) or (b-1) commits an offense. An offense under this section is a Class A misdemeanor.
Elec. Code § 255.003. A “measure” is a question or proposal submitted in an election for an expression of the voters’ will. Id. § 251.001(19).
The initial question in determining compliance with section 255.003 is whether the brochure constitutes political advertising for purposes of section 255.003(a). Political advertising is defined by section 251.001(16) of the Election Code as follows:
“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.
Elec. Code § 251.001(16).
The critical question in determining whether the brochure constitutes “political advertising” is whether the brochure supports or opposes a measure. Whether a particular communication supports or opposes a measure is a fact question. A factor in determining whether a particular communication supports or opposes a measure is whether the communication provides information and discussion of the measure without promoting the outcome of the measure. Ethics Advisory Opinion No. 476 (2007).
The brochure at issue includes facts about the proposed project such as the current jail situation, where a new jail would be built, the costs of a new jail, and alternatives to building a new jail. The brochure also includes the question as it would appear on the ballot and the date and time of early voting. In our opinion, the brochure provides information and discussion of a measure without promoting the outcome of the measure and therefore does not constitute political advertising as the term is defined in section 251.001(16) of the Election Code.
The remaining question in determining compliance under section 255.003 is whether using public funds to distribute the brochure is permissible under section 255.003(b-1). In our opinion, the information provided in the brochure is sufficiently substantial and important as to be reasonably likely to influence a voter to vote for or against the bond measure. Therefore, for the use of public funds to distribute the brochure to be permissible under section 255.003(b-1), the officer or employee of the county authorizing the use may not do so knowing that the brochure contains information that is false. Whether or not an officer or employee provides such authorization is a fact question that cannot be resolved in an advisory opinion.
For purposes of section 255.003 of the Election Code, the attached brochure is not political advertising and, therefore, public funds may be used to distribute the brochure unless an officer or employee of the county authorizing such use of public funds knows that the brochure contains false information.