Can a Texas school district use local tax money to hire a lobbyist?

Plain-English summary

A Texas House committee chair asked whether Education Code section 21.939 stopped school districts from spending local funds to employ people who lobby, that is, people who monitor and feed information to legislators and state agencies on the district's behalf. The statute had two prohibitions. Subsection (a) barred a district from employing anyone who was required to register as a lobbyist under chapter 305 of the Government Code because of activities on the district's behalf. Subsection (b) barred a district from employing anyone whose primary duties were tied to proposed legislation or administrative action, including supplying or obtaining information from the legislative or executive branch, tracking the progress of proposed legislation, or acting as an advocate for it.

The Attorney General read the statute to apply across the board. The office assumed "local funds" meant the district's local tax revenues or other money from local sources, and found no language in section 21.939 that would treat those funds differently from any other district money. If the prohibition applied to the employment, the funding source did not matter; there was simply no "local funds" exception to be found in the text.

The lawmaker also asked a fallback question: if the statute did block hiring lobbyists, did it violate the free speech and equal protection clauses of the U.S. and Texas constitutions, especially since other local governments with elected boards could employ such people? The office answered that a school district cannot raise those claims at all. A school district is an agency or subdivision of the state, and a subdivision of the state does not itself hold the personal rights of free speech or equal protection. The office cited Texas cases holding that a state subdivision has no First or Fourteenth Amendment rights against state action, and that an agency the state created cannot invoke constitutional rights against the will of its creator. So the constitutional objection had no footing when raised by the district itself.

Currency note

This opinion was issued in 1995. 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 Texas Education Code was extensively recodified, so the lobbying restriction the opinion construed (then numbered section 21.939) has since been renumbered, and the lobby-registration provisions in chapter 305 of the Government Code and the related Ethics Commission rules have been amended over the years. Read this page for how the office read the statute as it stood in 1995, and check the current Education Code and Government Code before relying on the specific section numbers or the scope of the restriction today.

What the opinion meant for those who asked

For school districts: The opinion read section 21.939 to bar employing lobbyists or people whose primary duties were legislative or administrative advocacy regardless of whether the pay came from local tax revenues or any other district source, and it held that a district could not raise free-speech or equal-protection objections to the statute because a state subdivision does not hold those personal rights.

For the legislator who asked: The opinion confirmed there was no "local funds" loophole in the statute as written and explained why the constitutional concern she raised did not give a school district a basis to challenge the law.

For people who lobby for districts: The opinion treated the prohibition as turning on the nature of the employment (registrable lobbying or primary legislative/administrative duties), not on which pot of district money paid for it.

Common questions

Could a Texas school district pay a lobbyist out of local tax money?
Under this 1995 opinion, no. Section 21.939's ban on employing lobbyists or people whose primary duties were legislative or administrative advocacy applied to any district funds, with no exception for local tax revenues.

Did the statute have a loophole for "local" versus state funds?
No. The office found nothing in the statute's language creating an exception based on the source of the funds.

Could a school district argue the ban violated its free speech rights?
No. The opinion held that a school district, as a subdivision of the state, does not itself possess the personal rights of free speech or equal protection, so it could not invoke them against the statute.

Did the opinion say anything about lobby registration generally?
Yes, in passing. It noted that chapter 305 of the Government Code requires people who lobby above certain thresholds to register with the Texas Ethics Commission, that an exemption exists for officers and employees of a political subdivision, and that a separate provision (section 305.026) anticipates public funds being used for some lobby-related communication, subject to disclosure.

Background and statutory framework

Section 21.939 of the Education Code, as it stood in 1995, contained two bans on a school district "employing" people connected to legislative or administrative advocacy: subsection (a) for anyone required to register under chapter 305 of the Government Code on the district's behalf, and subsection (b) for anyone whose primary duties were related to proposed legislation or administrative action. Chapter 305 is the state's lobby-registration law, administered by the Texas Ethics Commission, and it includes an exemption for officers and employees of a political subdivision (Gov't Code § 305.003(b)) and a disclosure provision for political subdivisions that use public funds for lobby activities (Gov't Code § 305.026).

The funding-source question was a matter of plain reading: nothing in section 21.939 distinguished local tax revenues (the kind described in Education Code sections 16.252 and 16.302) from other district funds, so the prohibition applied uniformly. The constitutional question turned on a settled principle that a governmental subdivision does not hold the individual constitutional rights it might otherwise assert. The office relied on Boyett v. Calvert, 467 S.W.2d 205 (Tex. Civ. App.-Austin 1971, writ ref'd n.r.e.), and McGregor v. Clawson, 506 S.W.2d 922 (Tex. Civ. App.-Waco 1974, no writ), both Texas courts of civil appeals, and cited the U.S. Supreme Court's decision in Williams v. Mayor and City Council, 289 U.S. 36 (1933), for the rule that a state's own creation cannot invoke the federal Constitution against the state.

Citations

Statutory and constitutional provisions discussed:

• Tex. Educ. Code § 21.939(a), (b) (school district ban on employing lobbyists / primary-duty advocates); §§ 16.252, .302 (local district funding)
• Tex. Gov't Code ch. 305 (lobby registration); § 305.003(a), § 305.002, § 305.003(b) (registration and the political-subdivision exemption); § 305.026 (disclosure when a subdivision uses public funds for lobby activities)
• U.S. Const. amends. I, XIV; Tex. Const. art. I, §§ 3, 3a, 8 (equal rights, due course, free speech); art. I, § 27 (right to petition)
• 1 Tex. Admin. Code chs. 30, 32 (Texas Ethics Commission lobby rules)

Cases discussed:

• Boyett v. Calvert, 467 S.W.2d 205 (Tex. Civ. App.-Austin 1971, writ ref'd n.r.e.)
• McGregor v. Clawson, 506 S.W.2d 922 (Tex. Civ. App.-Waco 1974, no writ)
• Williams v. Mayor and City Council, 289 U.S. 36 (1933)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0325
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0325.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

February 21, 1995

Honorable Senfronia Thompson
Chair
Judicial Affairs Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-325

Re: Whether Education Code section 21.939 restricts school districts from using local funds to employ persons to monitor the activities of and supply information to legislators and state administrative agencies (RQ-680)

Dear Representative Thompson:

You ask whether section 21.939 of the Education Code "restrict[s] school districts from using local funds to employ persons to monitor the activities of and supply information to legislators and state administrative agencies." Section 21.939 provides in subsections (a) and (b):

(a) A school district may not employ a person who is required to register under Chapter 305, Government Code,[1] by virtue of the person's activities on behalf of the school district.

(b) A school district may not employ a person whose primary duties are activities related to proposed legislation or administrative action, including supplying information to members of the legislative or executive branch, obtaining information from members of the legislative or executive branch, monitoring the progress of proposed legislation or administrative action, or acting as an advocate or proponent of proposed legislation or administrative action.

We assume that by "local funds" you mean local tax revenues of a district or other district funds from local sources. See, e.g., Educ. Code §§ 16.252, .302. To the extent that the prohibitions set out in section 21.939, subsections (a) and (b) on school districts' "employing" lobbyists or persons whose "primary duties" relate to proposed legislation or administrative action, apply, it does not matter whether a district's funds used to compensate such persons are from local or other sources. There is simply no basis in the language of the section 21.939 prohibitions for finding an exception to their application where "local" funds of a district are used rather than other district funds for the "employment" in question.

You also ask: "[I]f Section 21.939 does prohibit the use of local funds to hire persons engaged in lobbying activities, does Section 21.939 violate the free speech and equal protection clauses of the constitutions of the United States and Texas." See U.S. Const. amends. I, XIV; Tex. Const. art. I, §§ 3, 3a, 8; see also Tex. Const. art. I, § 27 (right to petition). You suggest that "[I]nasmuch as other units of local government with elected bodies are permitted to employ such persons, it does not seem that the Legislature could permissibly restrict the rights of some, but not all, local governmental bodies." An agency or subdivision of the state, such as a school district, does not itself possess the personal rights of free speech and equal protection you allude to. See Boyett v. Calvert, 467 S.W.2d 205, 210 (Tex. Civ. App.-Austin 1971, writ ref'd n.r.e.) ("[A] subdivision of the State . . . does not have rights which are protected under the First and Fourteenth Amendments from State action"); McGregor v. Clawson, 506 S.W.2d 922, 929 (Tex. Civ. App.-Waco 1974, no writ) ("An agency created by a state for the better ordering of government has no privileges, immunities, or rights under the State and Federal Constitutions which it may invoke in opposition to the will of its creator."). See also Williams v. Mayor and City Council, 289 U.S. 36 (1933).

SUMMARY

The prohibitions set out in subsections (a) and (b) of Education Code section 21.939 on school districts' "employing" lobbyists or persons whose "primary duties" relate to proposed legislation or administrative action, apply regardless of whether a district's funds used to compensate such persons are from local or other sources. A school district does not itself possess the personal rights of free speech and equal protection under the state or federal constitutions.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by William M. Walker
Assistant Attorney General

[1] Chapter 305 of the Government Code generally requires persons who spend or are compensated in certain amounts "to communicate directly with one or more members of the legislative or executive branch to influence legislation or administrative action" to register with the Texas Ethics Commission. Gov't Code § 305.003(a). The registration requirement also applies to a person who "as part of his regular employment" makes such communications, even if he receives no compensation for such communications apart from his regular salary. Id. §§ 305.002, .003(b). The last sentence of section 305.003(b), however, exempts "an officer or employee of a political subdivision" from the registration requirements for persons compensated to make the communications in question. Section 305.026 (requiring filing of disclosure statement where "political subdivision" uses public funds for lobby activities, with exceptions) anticipates that public funds will be used by school districts and other local public entities for purposes of communicating with legislators. See also 1 T.A.C. chs. 30, 32 (Texas Ethics Commission rules relating to registration and regulation of lobbyists).