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TEXAS ETHICS COMMISSION |
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ETHICS ADVISORY OPINION NO. 594
September 27, 2023
ISSUE
Whether a written communication, created by a political subdivision and related to the political subdivision’s special election for a sales tax ballot measure, constitutes political advertising for purposes of the Election Code’s prohibition against using public funds for political advertising. Tex. Elec. Code § 255.003(a). (AOR-690).
SUMMARY
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 factual and does not include any advocacy.
FACTS
The requestor represents a city that has called a special election for November 7, 2023, regarding a sales tax ballot measure. The city wishes to publish “educational materials with factual descriptions of the ballot measure to help voters make informed decisions.” The requestor included a proposed communication attached with the request.
The communication includes:
- The election and early voting dates;
- A statement that “while the City Council voted in favor of calling the Special election to place the proposition before the voters, the City . . . as an entity does not advocate for or against passage or any proposition”;
- Contact information for the city and county elections administrators;
- The ballot language;
- The history of various tax rates set by the city;
- The legal authority for making tax rate changes.
We assume that facts contained in the communication1 are true.
ANALYSIS
Under Section 255.003(a) of the Election Code, 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). Section 255.003(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. Tex. Elec. Code § 255.003(b).
“Political advertising” means, in relevant part, 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 appears in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication. Id. at § 251.001(16) (emphasis added).
A significant factor “in determining whether a particular communication supports or opposes a public officer [or measure] is whether the communication provides information … without promotion of the public officer [or measure].” Tex. Ethics Comm’n Op. No. 476 (2007). For example, in Ethics Advisory Opinion No. 211, we concluded that an informational brochure was not a political advertisement—despite identifying the incumbent in the letterhead—because it “merely describe[d] the duties” of the public office and did not reference the incumbent “in a way that would lead one to believe that the purpose of the brochure was to support the incumbent.” Tex. Ethics Comm’n Op. No. 211 (1994).
No matter how much factual information about the purposes of a measure election is included in a communication, any amount of advocacy is impermissible under Section 255.003(a). Tex. Ethics Comm’n Op. No. 564 (2021).
When viewed in its entirety, the communication is informational and does not support or oppose any candidate or measure. The proposed communication does not include any express advocacy, motivational slogan, or call to action. Viewed as a whole, the communication is not a statement of support or opposition, but rather a factual description of the measure presented to the voters. The communication does emphasize that the changes in the tax rates “d[o] not increase the current combined rate of all local sales and use taxes in the City.” However, highlighting a particularly salient fact does not necessarily equate to advocacy for the measure.
In conclusion, the proposed communication does not constitute political advertising and does not advocate passage or defeat of a measure. Consequently, Section 255.003(a) of the Election Code does not prohibit an officer or employee of the political subdivision from using public funds to create and distribute the written communication.