Can a former state regulatory board member lobby that same board right after leaving office?

Plain-English summary

Texas has a "revolving door" rule for people who sit on state regulatory boards. For two years after leaving, a former board member cannot turn around and lobby the same agency, that is, communicate with it or appear before it, with the goal of swaying it, on behalf of someone who wants the agency to act. The Polygraph Examiners Board asked the Attorney General whether that rule stopped a former member from sponsoring a polygraph intern.

The Attorney General said it did. The catch is what "sponsoring" an intern actually involves. To become a licensed polygraph examiner in Texas, a person has to serve an internship under a qualified sponsor and pass a state exam. The sponsor is not a passive name on a form. The sponsor helps file the application for the intern's license, can be required to appear before the board, submits progress reports during the internship, and, if the intern fails the exam, sits down with a board member or staffer to review it. All of that is aimed at getting the board to act, first to grant the internship license, then to grant the examiner's license.

Because every one of those steps is a communication to or appearance before the board intended to influence an official decision on someone else's behalf, sponsoring an intern is exactly the kind of conduct the revolving-door statute forbids. So a former board member cannot sponsor a polygraph intern until two years have passed since leaving the board.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The revolving-door statute (then V.T.C.S. article 6252-9b) and the Polygraph Examiners Act (then V.T.C.S. article 4413(29cc)) have since been recodified, so the section numbers have changed; confirm current law before relying on anything described here.

Background and statutory framework

The revolving-door provision, V.T.C.S. article 6252-9b, section 7A(a), barred a member of the governing body or executive head of a regulatory agency from making, "with the intent to influence," any communication to or appearance before an officer or employee of the agency the person served, before the second anniversary of leaving that position, "on behalf of any person in connection with any matter on which the person seeks official action." The Attorney General noted that the bar applies only when the former member acts with intent to influence the governing body, and only in connection with a matter for which the person being represented seeks official action, citing Texas Ethics Advisory Opinion Nos. 44, 23, and 11 (1992).

Under the Polygraph Examiners Act, V.T.C.S. article 4413(29cc), section 8(a), a person qualifies for an examiner's license only after completing an internship training program and passing a state examination under the board's supervision (a six-month internship for a graduate of a board-approved course, twelve months otherwise, under § 8(a)(3)). Before starting, the person must apply to the board for an internship license (§ 13(a)) and must designate a sponsor: a Texas licensed polygraph examiner who has held an original license continuously for at least two years (22 T.A.C. § 391.3(11)). The board may require the applicant and the proposed sponsor to appear before it (22 T.A.C. § 391.7). During the internship the sponsor continues to deal with the board, submitting periodic progress reports on the intern (22 T.A.C. § 391.3(15)) and, if the intern fails the examination, reviewing the failing exam with a board member or staff (22 T.A.C. § 391.4(8); V.T.C.S. art. 4413(29cc), § 8(a)(4)).

Citations

• V.T.C.S. art. 6252-9b, § 7A(a) (revolving-door bar: no influencing communication or appearance for two years after leaving a regulatory agency)
• V.T.C.S. art. 4413(29cc), § 8(a), § 8(a)(3), § 8(a)(4) (Polygraph Examiners Act; internship and examination requirements)
• V.T.C.S. art. 4413(29cc), § 13(a) (application for internship license)
• 22 T.A.C. § 391.3(11) (sponsor must be a licensed examiner of at least two years' standing)
• 22 T.A.C. § 391.3(15) (sponsor's progress reports)
• 22 T.A.C. § 391.4(1) (licensing supervised by the board)
• 22 T.A.C. § 391.4(8) (review of a failed examination)
• 22 T.A.C. § 391.7 (board may require applicant and sponsor to appear)
• Texas Ethics Advisory Opinion Nos. 44, 23, and 11 (1992)

Common questions

Can a former Polygraph Examiners Board member sponsor an intern right after leaving?
No. The Attorney General concluded that section 7A(a) bars a former board member from sponsoring a polygraph intern until the second anniversary of the date the person left the board.

Why does sponsoring an intern count as lobbying the board?
Because the sponsor has to deal with the board to get the intern licensed: filing the application, possibly appearing before the board, submitting progress reports, and reviewing a failed exam with board staff. The opinion concluded those communications and appearances are intended to influence the board's official decisions, which is what the revolving-door statute forbids.

Does the two-year bar stop a former member from doing anything before the agency?
No. The statute reaches only communications or appearances made with intent to influence, on behalf of someone seeking official action. The opinion described those limits, drawing on Texas Ethics Advisory Opinions, before concluding that intern sponsorship falls within the prohibition.

How long does the restriction last?
Two years. The bar runs until the second anniversary of the date the person ceased to be a member of the board.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0223
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0223.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

May 28, 1993

Mr. Bryan M. Perot
Executive Officer
Polygraph Examiners Board
P.O. Box 4087
Austin, Texas 78773-0001

Opinion No. DM-223

Re: Whether article 6252-9b, section 7A(a), V.T.C.S., prohibits a former member of the Polygraph Examiners Board from appearing before the board in connection with sponsoring a polygraph intern (RQ-362)

Dear Mr. Perot:

You have asked us to consider whether section 7A(a) of article 6252-9b, V.T.C.S., prohibits a former member of the Polygraph Examiners Board (the "board") from sponsoring a polygraph intern because sponsoring a polygraph intern would require the former board member to apply to the board and communicate to or appear before the board on behalf of the polygraph intern applicant. We believe that section 7A(a) precludes such a sponsorship prior to the second anniversary of the date the person ceased to be a board member.

Article 6252-9b, section 7A(a), V.T.C.S., provides as follows:

A member of the governing body or executive head of a regulatory agency may not make, with the intent to influence, any communication to or appearance before an officer or employee of the agency in which the person served, before the second anniversary of the date the person ceases to be a member of the governing body or executive head of the agency, on behalf of any person in connection with any matter on which the person seeks official action.

Section 7A(a) prohibits a former board member from appearing before or in some other way communicating to an officer or employee of the regulatory agency the former board member served-but only if the former board member communicates or appears with an intent to influence the members of the governing body. Ethics Advisory Opinion Nos. 44 at 1, 23 at 1, 11 at 1-2 (1992). Additionally, section 7A(a) proscribes such conduct only if the former board member communicates or appears in connection with a matter that the person on whose behalf the former board member communicates or appears seeks official action. Ethics Advisory Opinion No. 44 at 1.

Pursuant to section 8(a) of the Polygraph Examiners Act, V.T.C.S. article 4413(29cc), a person is qualified to receive a license as a polygraph examiner only after, among other things, completing a period of internship training and passing a state examination for a polygraph examiner's license under the supervision of the board.[1] See also 22 T.A.C. § 391.4(1). Prior to participation in an internship program, a person must apply to the board for an internship license. V.T.C.S. art. 4413(29cc), § 13(a). The board will not approve the application for an internship license unless the applicant has designated to serve as the applicant's sponsor a Texas licensed polygraph examiner who has held an original Texas polygraph license continuously for at least two years immediately preceding the application. See 22 T.A.C. § 391.3(11). The board may, when it considers the applicant's request for an internship license, require the intern applicant and his or her proposed sponsor to appear before the board. Id. § 391.7.

The sponsor continues to communicate to and possibly to appear before the board during the duration of the internship period. For instance, a sponsor must submit to the board progress reports every sixty days on each intern. Id. § 391.3(15). Additionally, if the intern fails all or part of the examination that the intern must pass before he or she is eligible to receive a license, the intern and the sponsor must review the failing examination with a member of the board or a member of the board's staff. Id. § 391.4(8); see V.T.C.S. art. 4413(29cc), § 8(a)(4); 22 T.A.C. § 391.4(1).

In our opinion, a sponsor's communications to and appearances before the board are intended to influence the board to take official action: first, to influence the board to issue the applicant an internship license; second, to influence the board in its decision whether to issue or refuse to issue a polygraph examiner's license to the intern. Accordingly, a former board member who sponsors an intern will violate article 6252-9b, section 7A(a), V.T.C.S., if the former board member does so before the second anniversary of the date the person ceased to be a member of the board.

SUMMARY

Article 6252-9b, section 7A(a), V.T.C.S., prohibits a former member of the Polygraph Examiners Board from sponsoring a polygraph intern before the second anniversary of the date the person ceased to be a member of the board.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

[1] If the person seeking a license as a polygraph examiner has graduated from a board-approved polygraph examiners' course, the person satisfactorily must complete an internship training program of no less than six months in duration. V.T.C.S. art. 4413(29cc), § 8(a)(3). If, on the other hand, the person has not graduated from an approved polygraph examiners' course, he or she satisfactorily must complete an internship training program of no less than twelve months in duration. Id.