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Opinions

Cumulative Digest of Ethics Advisory Opinions

2021 | 2022 | 2023 | 2024


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.

EAO No. 576 (2022) – No. Title 15 of the Texas Election Code requires candidates for public office and certain candidates for state and county party offices to designate campaign treasurers and file campaign finance reports. It does not require candidates for precinct offices of political parties to designate campaign treasurers or file campaign finance reports.

EAO No. 577 (2022) – An employee of a university system does not “participate” in a procurement or contract negotiation by informally recommending a lawyer for outside legal services and would not be prohibited from accepting employment from the lawyer’s law firm before the second anniversary of the date the employee’s outside counsel contract was signed.

EAO No. 578 (2022) – Direct communications with a potential contracting partner over the terms of a prospective deal constitutes participating in a procurement or contract negotiation.

Affiliates are different persons for purposes of Chapter 572 of the Government Code. Therefore, Section 572.069 of the Government Code does not prohibit a former employee of a state agency from accepting employment from an affiliate of a person that was involved in procurements or contract negotiations in which the employee participated during his state service.

EAO No. 579 (2022) – The requestor may accept the position. First, he is not a member of his agency’s governing body nor is he the agency’s executive head, so Section 572.054(a) does not apply. Second, as long as the position does not require him to work on any “particular matter” in which he participated as a state employee, Section 572.054(b) does not prohibit him from accepting the position. Finally, because he did not participate in any procurement or contract negotiation involving the potential employer during his state service, Section 572.069 does not prohibit him from accepting the position.

EAO No. 580 (2022) – No. Section 253.094 of the Texas Election Code prohibits corporations from making political contributions to candidates and political committees. Legal services provided without charge to candidates or political committees are in-kind contributions. When those services are given with the intent that they be used in connection with a campaign, they are in-kind campaign contributions. The described legal services would be used in connection with a campaign because the requestor’s standing to pursue such a challenge would depend on its client’s status as a candidate or political committee subject to the laws administered and enforced by the Commission.

EAO No. 581 (2022) – Yes. A political committee may accept political contributions that have been processed by a web portal shared with an incorporated association, provided the general-purpose committee complies with applicable recordkeeping and reporting provisions.

EAO No. 582 (2022) – No. Assuming the factual statements in the communication are true, the communication provided by the requestor is entirely informational and does not include any advocacy.

EAO No. 583 (2022) – No. The JCFA prescribes a $25,000 per-election limit on “political contributions” from general- purpose committees to a judicial candidate or officeholder regardless of whether classified as a “campaign contribution” or “officeholder” contribution.

EAO No. 584 (2022) – Yes. Expenditures incurred by a candidate in connection with charitable fundraising are political expenditures if the candidate promotes the activity on his campaign’s social media page.


2023 Opinions

EAO No. 585 (2023) – The requestor may make political contributions and direct campaign expenditures from a general-purpose committee he controls without violating Sections 253.004, 253.006 and 253.007, provided he waits two years from the last contribution accepted by the political committee accepted from his candidate or officeholder account.

EAO No. 586 (2023) – A former state employee participates on behalf of a state agency in a procurement or contract negotiation by drafting contract terms and having direct communications with a company regarding a potential contract.

A former state employee participates on behalf of a state agency in a procurement or contract negotiation with a subcontractor if the subcontractor is identified as providing work in the contract.

EAO No. 587 (2023) – Section 253.007, Election Code prohibits a person from engaging in activities that require the person to register under Chapter 305, Government Code during the two-year period after the date the person knowingly makes or authorizes a political contribution to another candidate, officeholder, or political committee from political contributions accepted by the person as a candidate or officeholder.

The plain language of Section 253.007 does not permit a person to cure a past violation or reduce the two-year waiting period by reimbursing the person’s campaign with personal funds.

The “amount at issue” for purposes of Section 253.007 is reserved by the Commission.

EAO No. 588 (2023) – Yes. A member of the legislature may take reimbursement from a state-reimbursement for fuel purchased with personal funds. If the vehicle is paid for with a combination of personal funds and political contributions, the member may also prorate the remaining amount of the state-reimbursement for wear on the vehicle between his personal account and political account.

EAO No. 589 (2023) – Yes. A contribution made and accepted with the intent that it be used to defray expenses incurred in connection with a past election may be accepted after the normal fundraising period ends. Legal fees and costs arising from an election contest are expenses incurred in connection with a contested election.

EAO No. 590 (2023) – No. The Section 305.022 contingency fee prohibition does not apply to actions of an independent school district.

EAO No. 591 (2023) – A retired district court judge may use political contributions to purchase a headstone or monument for himself and his spouse at the State Cemetery of Texas because the headstones or monuments are related to the requestor’s activities as an officeholder and the headstone or monument will be the property of the state.

EAO No. 592 (2023) – Section 253.007 applies to contributions to all candidates for and holders of non-federal Texas elective offices—not just legislative or state executive branch offices. Once a triggering contribution is made, it cannot be cured by a refund or reimbursement. Section 253.007 also applies to a political contribution made to a political committee regardless of how the political committee ultimately disposes of the contribution.

EAO No. 593 (2023) – The specific communication considered in this opinion is political advertising for purposes of Section 255.003 of the Election Code because it advocates for the passage of a measure.

EAO No. 594 (2023) – 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.

EAO No. 595 (2023) – Section 572.069 of the Government Code applies only to a “former state officer or employee of a state agency.” The requestor is a current employee of the university and therefore is not subject to 572.069. However, the requestor should take care not to violate the standards of conduct for state employees listed in Section 572.051 of the Government Code or Chapter 39 of the Penal Code.

EAO No. 596 (2023) – No. Expenditures made by a candidate or officeholder that benefit only his or her own campaign are not “direct campaign expenditures” and therefore do not trigger the Section 253.007 lobby waiting period.

EAO No. 597 (2023) – A “communication to influence legislative or administrative action” includes any communication to establish (i.e. bring about, effect) goodwill that is made for the purpose of later communicating with the member to influence legislation or administrative action. This is true regardless of whether prior feelings of goodwill exist.

EAO No. 598 (2023) – A former State Board of Education (SBOE) member must wait two years before appearing before or seeking to influence the Permanent School Fund Corporation on behalf of another because the Corporation board contains SBOE members. Tex. Gov’t Code § 572.054(a).

A former SBOE member must wait two years after ceasing service as an officer before appearing before or seeking to influence the Commissioner of Education on behalf of another because the Commissioner is an officer of the SBOE for purposes of Section 572.054(a).

The requestor would be subject to the Section 572.054(a) restriction with respect to Texas Education Agency employees if they were also employees of the SBOE under the common law employee-employer test.

Section 572.054(b) would prohibit a former SBOE member from ever receiving compensation for working on contacts in which they participated as a SBOE member even if the SBOE subsequently amended these contracts to make the Permanent School Fund Corporation a party rather than the SBOE.

EAO No. 599 (2023) – The requestor may provide consulting services to a company with which he participated in a procurement during his state service without violating Section 572.069 provided he does not become an employee of the company.

EAO No. 600 (2023) – 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. The requestor is not proposing to participate in any particular matter in which he participated as a state employee, so Section 572.054(b) would not prevent the requestor from engaging in his proposed employment. Merely reviewing a contract for conformity with certain form requirements, such as naming the correct party, does not constitute participating in the contract negotiation for purposes of Section 572.069. However, if the requestor gave approval, advice, or recommendation on whether to enter into a contract, or a substantive term of the contract such as how many employees to station at a given facility, he participated in that contract negotiation. If he participated in the contract negotiation, he would have to wait two years from when the contract was signed before accepting employment from any other person involved in that contract negotiation under Section 572.069.


2024 Opinions

EAO No. 601 (2024) – A trust is not a separate legal entity and therefore not a distinct “person” for the purposes of determining political committee status and the application of campaign finance rules generally. Therefore, the general campaign finance restrictions and reporting rules apply to the people comprising the trust, i.e., the people funding or making contribution or expenditure acceptance decisions on behalf of the trust.

The people providing money to a trust and deciding how money will be spent on behalf of a trust may be treated as a Texas political committee if, just like any other group of people acting in concert, they meet the generally applicable criteria for forming a political committee.

A purpose trust comprised entirely of funds from an individual is not subject to the corporate contribution ban under Section 253.093 of the Election Code and may make political contributions to candidates, officeholders, and political committees.

A purpose trust that is not a political committee will be subject to the corporate contribution ban if the trust organizes itself as a corporation—even it incorporates for liability purposes only.

EAO No. 602 (2024) – Under the facts presented, the solicitations would be for gifts to the agency rather than individual employees. Therefore, the Penal Code gift restrictions would not apply. Whether an agency may solicit or accept gifts is governed by other law specifically applicable to that agency, over which the Ethics Commission has no interpretive authority.

EAO No. 603 (2024) – A candidate for an appraisal district’s board of directors must file campaign treasurer appointments and campaign finance reports with the clerk or secretary of the appraisal district. If the appraisal district does not have a clerk or secretary, the reports must be filed with the appraisal district’s presiding officer.

EAO No. 604 (2024) – The political party may use contributions from corporations to purchase a storage trailer because the trailer is a normal overhead cost.

EAO No. 605 (2024) – Under the facts presented, providing prizes to attendees of sporting events would not be prohibited by Chapter 36 of the Penal Code even if a university employee receives a prize after being selected at random.


Part I (1992 to 1994) | Part II (1995 to 1999) | Part III (2000 to 2005) | Part IV (2006 to 2010) | Part V (2011 to 2015)
Part VI (2016 to 2020)