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Opinions

Cumulative Digest of Ethics Advisory Opinions

2021 | 2022


2021 Opinions

EAO No. 559 (2021) – When asked to consider whether a specific written communication constitutes political advertising for purposes of the Election Code, we view the communication as a whole. A significant factor in determining whether a particular communication is a political advertisement is whether it provides information without promoting a public officer or measure.

The mere fact that a communication includes an express disclaimer of support or opposition is not determinative. However, the specific communications considered in this opinion are not political advertisements for purposes of section 255.003 of the Election Code because they are entirely informational and do not include any advocacy.

EAO No. 560 (2021) – When asked to consider whether a specific written communication constitutes political advertising for purposes of the Election Code, we view the communication as a whole. The mere fact that the name of a public officer appears in a written communication does not determine whether the communication constitutes political advertising, but the context and frequency with which it appears are relevant to making that determination.

The written communications considered in this opinion constitute political advertisements because they identify a public officer as such, include his name in a conspicuous manner, and promote the officer by crediting him with funding a public resource that is paid for by the political subdivision. Rather than being primarily informational, the primary purpose of the communications appears to be to support the incumbent official.

EAO No. 561 (2021) – Section 255.003(a) of the Texas Election Code does not apply to district judges because they are not officers or employees of political subdivisions.

Section 39.02(a)(2) of the Penal Code prohibits judges from using their courtrooms to create political advertisements, but not from repurposing material that is created lawfully.

EAO No. 562 (2021) – Communications published on social media websites are “mass media communications” for purposes of Section 305.006(c) of the Texas Government Code. Consequently, lobbyists registered under Chapter 305 of the Texas Government Code must report their expenditures for advertisements on social media (sometimes called social media “boosts”) if the communications support or oppose or encourage another to support or oppose pending legislation or administrative action.

A mass media communication can support or oppose pending legislation even if it does not include the phrase “support/oppose this legislation” or similar words or phrases such as “vote for,” “vote against,” “defeat,” or “reject.” A communication supports or opposes pending legislation if, when viewed as a whole, it would lead one to reasonably believe that its purpose was to support or oppose the pending legislation.

EAO No. 563 (2021) – Section 255.003(a) does not broadly prohibit political subdivisions from producing or advertising an event that uses an official’s title in its name. However, such an event that otherwise entails the use of public funds to support or oppose a candidate or measure would violate section 255.003(a).

Section 255.003(a) does not prohibit discussion of matters pending before a governmental body. However, it does prohibit one or more members of a governmental body from arranging a discussion of a matter not pending before the governmental body in the hopes that broadcasts of the discussion would influence the outcome of an election.

An officer or employee of a political subdivision may not spend public funds to produce an event for the purposes of providing a place for public officials to distribute campaign items.

EAO No. 564 (2021) – The specific communication considered in this opinion is not political advertising for purposes of Section 255.003 of the Election Code because it is entirely informational and does not include any advocacy.

EAO No. 565 (2021) – While section 255.003(a) applies to the requestor, a special purpose district, it does not prohibit the district’s officers and employees from spending public funds to create and distribute the specific communications considered in this request because they are entirely informational and do not include any advocacy.

EAO No. 566 (2021) – A judge may use political contributions for consulting and travel expenses to seek an appointment to a federal judicial office.

EAO No. 567 (2021) – A judge may use political contributions to pay ordinary and necessary expenses incurred in connection with ensuring their home security.

EAO No. 568 (2021) – Section 572.069 of the Texas Government Code would not prohibit a former state employee from accepting employment to provide the described services to a company that bid on procurements from the agency because he did not participate in the procurements. The former state employee may obtain employment with the company before the second anniversary of the date on which the employee’s service or employment with the state agency ceased.

EAO No. 569 (2021) – A candidate or officeholder may use her own political contributions to establish a GPAC and may control such a GPAC.

Political contributions “accepted” by a candidate-established or controlled GPAC are accepted by a person as a candidate or officeholder and therefore may not be converted to personal use by the controlling candidate or officeholder and may not be used to pay the controlling candidate or officeholder a salary.

Personal use restrictions notwithstanding, the Penal Code gift and honorarium restrictions would allow such employment under only a narrow set of facts, and such employment may violate the standards of conduct for a public servant.


2022 Opinions

EAO No. 570 (2022) – Like separate contracts, separate RFPs leading to separate contracts are separate “matters” for purposes of the revolving door provision in Government Code section 572.054(b). However, the conclusion that a specific work activity constitutes “participation in” one matter does not necessarily preclude the conclusion that the same work also constitutes “participation in” another matter. Tex. Ethics Comm'n Op. No. 397 (1998).

When an officer or employee of an agency participates in the decision to cancel or rescind an RFP, and the agency subsequently issues another RFP for the same service or product, the employee may have participated in both the rescinded RFP and the reissued RFP for purposes of section 572.054(b), even if the RFP is not reissued until after the employee’s state service has concluded. Whether the former officer or employee participated in the reissued RFP depends on, among other things, whether the agency reviews or analyzes the former officer’s or employee’s work in connection with reissuing the RFP.

Here, the requestor has asked the Commission to rely on facts that would demonstrate her lack of participation in the subsequent RFP, so this opinion concludes that she is not precluded from working on a response. However, we caution agency officers and employees against using their authority to cancel a procurement for essential state services with an intent to profit from their knowledge of the agency’s inevitable search for a new provider.

EAO No. 571 (2022) – None of the revolving door provisions in Chapter 572 of the Government Code prohibit the requestor from accepting the prospective employment. The requestor is not a member of the governing body or the executive head of a regulatory agency, so section 572.054(a) does not apply. Section 572.054(b) would prohibit the requestor from working on any specific Medicaid application on which she participated during her state service, but would not prohibit her from working on all Medicaid applications generally. And section 572.069 does not prohibit the requestor from accepting the employment because Medicaid applications are not procurements or contract negotiations.

EAO No. 572 (2022) – No. Affiliates are different persons for purposes of Chapter 572 of the Government Code. Therefore, we conclude that section 572.069 of the Government Code does not prohibit a former employee of a regulatory agency from accepting employment from an affiliate of a person that was involved in procurements or contract negotiations in which the employee participated during her state service.

EAO No. 573 (2022) – Nothing in Chapter 572 of the Government Code prohibits the requestor from accepting the employment with another state agency. All three revolving door provisions prohibit former state officers and employees from representing, accepting employment, or receiving compensation from certain “person[s].” As defined by Chapter 572, a state agency is not a “person,” so none of the revolving door provisions restrict former state officers and employees from accepting employment with another state agency.

Provisions of chapter 39 of the Penal Code prohibit public servants from misusing government property, services, personnel, and information to obtain a personal benefit. However, the requestor has not presented any facts that would indicate the requisite intent to find a violation.

EAO No. 574 (2022) – No. Texas law prohibits corporations from making campaign contributions, which includes making an expenditure for advertisements coordinated with a candidate or political committee that criticize or praise a candidate or the candidate’s opponent. Such advertisements are campaign contributions because they constitute things of value given with the intent that they be used in connection with a campaign for elected office and with the prior consent or approval of the candidate or committee on whose behalf the expenditure is made.

EAO No. 575 (2022) – Yes, if the candidate or officeholder has the authority to control the contributions accepted and expenditures made by the specific-purpose committee.1 Contributions accepted by a political committee controlled by a candidate or officeholder are accepted “as a candidate or officeholder.” Tex. Elec. Code § 253.007(b). Furthermore, expenditures made by a political committee controlled by a candidate or officeholder are knowingly made or authorized by the candidate or officeholder. Id.


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