### KEN PAXTON ATTORNEY GENERAL OF TEXAS

The Honorable Paul Bettencourt Chair, Select Committee on Property Tax Reform Texas State Senate Post Office Box 12068 Austin, Texas 78711-2068

Dear Senator Bettencourt: January 17, 2018

OpinionNo. KP-0177 Re: Restrictions on the use of a school district's public funds to provide transportation to and from polling places and for political communications for or against a particular measure or candidate (RQ-020I-KP)

You ask two questions related to the authority ofa 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 ofvoting" in the districts. 2 Request Letter at 1. You raise concerns about certain portions ofthese 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 studentsto and from pollingplaces. 

### Id. at 4. You explainthatthe 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 electionsprocess, whichmay 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. GrandPrairie 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-foropinions-rqs ("Request Letter").
2You 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 refdn.r.e.) (explaining that "aschool district

... exercises only suchpowers as are delegated to it by the state"). The Legislature has given school district boards "the exclusivepower and duty to govern and oversee the management ofthe public schools ofthe district." TEX. EDUC. CODE§ 11.151(b). Furthermore, the Legislatureprovidedthat "[l]ocal school funds

... may be used for

... purposes necessary in the conduct ofthe public schools determined by the board oftrustees." Id.§ 45.105(c). That said, school districts must abide by any statutory or constitutional restraints on their spending ofpublic funds. Relevant to your request, the Texas Constitution prohibits a political subdivision ofthe State from granting "public money or thing ofvalue 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 ofpublic funds to any individual. EdgewoodIndep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995). "A transfer offunds for a public purpose, with a clear public benefit received in return, does not amount to a lending ofcredit or grant ofpublic funds in violation ofarticle 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 ofa school district. We first address the provision oftransportation 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 ofpublic education); see also id. § 11.002 (providingthat school districts "havetheprimaryresponsibilityfor implementing the state's system ofpublic education"). School districts must offer a required curriculum in government. Id. § 28.002(a)(l)(D). Pursuant to this requirement, the State Board ofEducation implemented regulations requiring that high school students "understand the responsibilities, duties, and obligations ofcitizenship such as being well informed about

... voting," as well as understand "thevoterregistrationprocess and the criteriafor voting inelections." 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 districtto provide instruction inthem at appropriate grade levels). 3 Thus, the Legislature and the State Board ofEducationhave 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 ofthe school district and therefore violates article III, section 52(a) ofthe Texas Constitution.4

31n addition, high school principals must serve as deputy voter registrars and on multiple occasions throughoutthe year "distribute an officially prescribedregistration application form to each student who is or will be 18 years ofage or older during that year." TEX. ELEC. CODE§ 13.046(a), (d). The Secretary ofState implemented rules requiring the principal to review the applications for completeness and allowing the principal to assist in completingthe forms. l TEX. ADMIN. CODE§ 81.7(d)(2)(C)(i)-(ii). 4Briefingsubmittedin responsetothe opinionrequest suggeststhata school districtcoulddecidetotransport 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," expresslyprohibits aperson from beingin apollingplace except as permitted bythe 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.The Honorable Paul Bettencourt

- Page 3 (KP-0177)

We separately considerthe provision oftransportation for employees ofthe school district to and from polling places. A school district may provide for any employee travel expenses that are necessary in the conduct ofthe public schools. See TEX. EDUC. CODE §45.105(c); see Tex. Att'y Gen. Op. No. H-133 (1973) at 4 (recognizing that payment ofschool district trustee travel expenses may ormay not be authorized under the law, depending on whetherthey are "necessary in the conduct ofthe public schools"). However, absent the performance of some educational function on behalf of the district's students, we question whether providing transportation for employeesto and from pollingplaces serves apublicpurpose ofthe school district. See Tex. Mun. League Intergov 'ti RiskPool v. Tex. Workers' Comp. Comm 'n, 74 S.W.3d 377, 384 (Tex. 2002) (explaining that the predominant purpose ofan expenditure ofpublic funds must serve a public purpose, notbenefitprivateparties). A prior opinion ofthis_office concludedthat a school district could not fund travel expenses "ofpersons who have no responsibilities or duties to perform" on behalfofthe school district. Tex. Att'y Gen. Op. No. MW-93 (1979) at 2 (addressing a school board's authority to paytravel expenses ofthe spouse ofa trustee). Ifa school district employee has no responsibility or duty to perform on behalfofthe school district at the polling location, a court would likely conclude that a school district's funding oftransportation for that individual to the polling location serves no public purpose ofthe school district and violates article III, section 52(a) ofthe Texas Constitution. Youalso ask "[ w]hatlegal constraints existregarding a school district's ability to spend or authorize the spending ofpublic 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 ofthe Education Code provides: Notwithstanding any other law, the board of trustees of an independent school district may notuse state orlocal funds orother resources ofthe district to electioneer for or against any candidate, measure, orpolitical party. TEX. EDUC. CODE § 11.169. The Education Code does not define the term "electioneer." A commonunderstanding ofthetermis "to workforthe electionofa candidate orparty." MERRIAMWEBSTER'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 ofpolitical signs or literature"). Thus, the Legislature prohibited a board oftrustees ofa school district from using public funds to work for a particular measure or candidate. In addition, subsection 255.003(a) ofthe Election Codeprovides: "An officer or employee ofa political subdivision may not knowingly spend or authorize the spending ofpublic 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 ofthe Election Code to include counties, cities, and school districts). The Legislature defined "political advertising" as:The Honorable Paul Bettencourt

- Page 4 (KP-0177)

a communication supporting oropposing a candidate for nomination or electionto a public office or office ofa 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 ofwritten communication; or (ii) on an Internet website. 

### Id 

### §251.001(16). Apersonwho violates section255.003(a) ofthe 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 districttime orwith school districtequipment. See Tex. Ethics Comm'nOp. No. 45 (1992). Similarly, the Commissionconcludedthatplacingpolitical advertising in ateachers' lounge would involve spending public funds in violation ofsection 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 ormeasure. You indicatethatthe resolution adopted by several school districts "linksto otherwebsites that are partisan in nature." Request Letter at 1. We see no significant distinction between distribution ofpolitical advertising in a teachers' lounge and distribution electronically through e-mail or an Internet website. Thus, a court would likely conclude that the use ofpublic funds to link to an Internet website promoting a specific candidate or measure is itselfa communication supporting or opposing a candidate or measure in violation of section 11.169 ofthe Education Code and subsection 255.003(a) ofthe Election Code.

5It is an "affirmative defense to prosecution

... that an officer or employee of a political subdivision reasonably relied on a court order or an interpretation ofthis 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).The Honorable Paul Bettencourt

- Page 5 (KP-0177)



### SUMMARY Absent an educational purpose in providing students transportationto thepolling locations, a courtwouldlikely conclude thatthe transportation serves no publicpurpose ofthe school district and therefore violates article III, section 52(a) of the Texas Constitution. Ifa school district employee has no responsibility orduty to perform on behalf ofthe 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 publicpurpose ofthe school district andtherefore violates article III, section 52(a) ofthe Texas Constitution. Section 11.169 ofthe Education Code prohibits a board of trustees ofa school district from using public funds to work for a particularmeasure or candidate. In addition, subsection 255.003(a) ofthe Election Code makes it a criminal offense for an officer or employee ofa school district to knowingly spend or authorize the spending·ofpublic funds for political advertising. A court would likely conclude that the use ofpublic 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 ofthis provision.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee Very truly yours,

KEN PAXTON Attorney General ofTexas