Cain School Bill Redefines Political Advertising For Everyone

The text as introduced · 4,330 words

89R9162 MZM-F

By: Cain
H.B. No. 2826

A BILL TO BE ENTITLED

AN ACT

relating to the regulation of certain political communications, a

prohibition on electioneering by school district and

open-enrollment charter school officials and employees, and

actions and other proceedings by a public school challenging the

operations of the public school system; authorizing an

administrative penalty; creating a criminal offense.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 11.061, Education Code, is amended by

adding Subsection (b-1) to read as follows:

(b-1) A person who the State Board for Educator

Certification or the commissioner has determined to have violated

Section 22B.003 may not serve as a member of the board of trustees

of a school district for the period beginning on the date on which

the determination was made and ending the day after the date on

which the first trustee election occurring at least three years

after the date on which the determination was made is held.

SECTION 2. Section 12.120, Education Code, is amended by

adding Subsection (c) to read as follows:

(c) A person who the State Board for Educator Certification

or the commissioner has determined to have violated Section 22B.003

may not serve as a member of the governing body of an

open-enrollment charter school for the three-year period after the

date on which the determination was made.

SECTION 3. Section 22.092, Education Code, is amended by

amending Subsection (c) and adding Subsection (c-1) to read as

follows:

(c) The registry maintained under this section must list the

following persons as not eligible to be employed by public schools:

(1) a person determined by the agency under Section

22.0832 as a person who would not be eligible for educator

certification under Subchapter B, Chapter 21;

(2) a person determined by the agency to be not

eligible for employment based on the person's criminal history

record information review, as provided by Section 22.0833;

(3) a person who is not eligible for employment based

on criminal history record information received by the agency under

Section 21.058(b);

(4) a person whose certification or permit issued

under Subchapter B, Chapter 21, is revoked by the State Board for

Educator Certification on a finding that the person engaged in

misconduct described by Section 21.006(b)(2)(A) or (A-1); [ and ]

(5) subject to Subsection (c-1), a person who is

determined by the State Board for Educator Certification to have

engaged in electioneering under Section 22B.003;

(6) a person who is determined by the commissioner

under Section 22.094 to have engaged in misconduct described by

Section 22.093(c)(1)(A) or (B) ; and

(7) subject to Subsection (c-1), a person who is

determined by the commissioner under Section 22B.005 or by another

governmental body to have engaged in electioneering under Section

22B.003 .

(c-1) The agency shall remove a person included in the

registry under Subsection (c)(5) or (7) not later than:

(1) the third anniversary of the date on which the

person was included in the registry under the applicable

subdivision if the person was the superintendent or director of a

school district, district of innovation, open-enrollment charter

school, other charter entity, regional education service center, or

shared services arrangement at the time the person was included in

the registry; or

(2) the first anniversary of the date on which the

person was included in the registry under the applicable

subdivision if the person held a position other than a position

described by Subdivision (1) of this subsection at the time the

person was included in the registry.

SECTION 4. The heading to Subtitle D, Title 2, Education

Code, is amended to read as follows:

SUBTITLE D. EDUCATORS AND SCHOOL OFFICIALS, [ DISTRICT ] EMPLOYEES ,

AND VOLUNTEERS

SECTION 5. Subtitle D, Title 2, Education Code, is amended

by adding Chapter 22B to read as follows:

CHAPTER 22B. ELECTIONEERING PROHIBITED

Sec. 22B.001. DEFINITIONS. In this chapter:

(1) "Electioneering" includes:

(A) posting, using, or distributing political

signs or literature;

(B) proposing, endorsing, or expressing support

for or opposition to a measure before a governmental body other than

a school district; and

(C) engaging in conduct prohibited by:

(i) Section 255.003 or 255.0031, Election

Code; or

(ii) Section 305.027 or 556.0055,

Government Code.

(2) "Measure" includes:

(A) a question or proposal submitted in an

election for an expression of the voters' will, including the

circulation and submission of a petition to determine whether a

question or proposal is required to be submitted in an election for

an expression of the voters' will;

(B) a bill, resolution, order, or other proposal

to adopt, enact, amend, or repeal a statute, ordinance, rule, or

policy of general application; and

(C) a proposal to adopt, enact, amend, or repeal,

or to grant a variance or other exception to, a zoning ordinance.

(3) "Other charter entity" has the meaning assigned by

Section 21.006.

Sec. 22B.002. APPLICABILITY. This chapter applies only to:

(1) the board of trustees or a member of the board of

trustees of a school district;

(2) the governing body or a member of the governing

body of an open-enrollment charter school;

(3) an educator; and

(4) a school district or open-enrollment charter

school employee, agent, or contractor.

Sec. 22B.003. ELECTIONEERING PROHIBITED. (a)

Notwithstanding any other law, a person to whom this chapter

applies may not use federal, state, or local money or other school

resources to engage in electioneering, or assist another person in

engaging in electioneering, for or against any candidate, measure,

or political party.

(b) Except as otherwise provided by law, a person to whom

this chapter applies may not use federal, state, or local money or

other school resources to encourage or discourage participation in

an election.

(c) The board of trustees of a school district and the

governing body of an open-enrollment charter school shall adopt

protocols and policies and take actions necessary to ensure

compliance with this section.

(d) The State Board for Educator Certification shall adopt

standards of conduct prohibiting an educator from engaging in

conduct that violates this section.

Sec. 22B.004. REQUIRED REPORT OF ALLEGED ELECTIONEERING;

PENALTIES. (a) The superintendent or director of a school

district, district of innovation, open-enrollment charter school,

other charter entity, regional education service center, or shared

services arrangement shall report an alleged violation of Section

22B.003, not later than the seventh day after the date the

superintendent or director becomes aware of the alleged violation,

to:

(1) the State Board for Educator Certification if the

alleged violation was committed by an educator; or

(2) the commissioner if the alleged violation was

committed by a person other than an educator.

(b) The report required by Subsection (a) must be:

(1) in writing; and

(2) in a form prescribed by:

(A) the State Board for Educator Certification if

an educator is the subject of the report; or

(B) the commissioner if a person other than an

educator is the subject of the report.

(c) The principal of a school district, district of

innovation, open-enrollment charter school, or other charter

entity shall report an alleged violation of Section 22B.003, not

later than the seventh day after the date the principal becomes

aware of the alleged violation, to the superintendent or director

of the district, school, or entity at which the principal is

employed.

(d) A person required to report an alleged violation of

Section 22B.003 under this section and who in good faith reports the

alleged violation in accordance with this section is immune from

civil or criminal liability that might otherwise be incurred or

imposed.

(e) A person required to report an alleged violation of

Section 22B.003 under this section commits an offense if the person

fails to report the alleged violation by the date required under

this section with the intent to conceal the alleged violation. An

offense under this subsection is a state jail felony.

(f) If a person required to report an alleged violation of

Section 22B.003 under this section fails to report the alleged

violation in accordance with this section, the State Board for

Educator Certification:

(1) shall determine whether to impose sanctions

against the person, including an administrative penalty of not less

than $500 and not more than $10,000; and

(2) if the board imposes an administrative penalty on

the person, may not renew the person's educator certification until

the penalty is paid.

(g) The commissioner may review the records of a school

district, district of innovation, open-enrollment charter school,

other charter entity, regional education service center, or shared

services arrangement to ensure compliance with this section.

(h) The commissioner shall adopt rules as necessary to

implement this section.

Sec. 22B.005. DETERMINATION OF ALLEGED ELECTIONEERING;

INELIGIBILITY FOR EMPLOYMENT. (a) This section applies only to a

person to whom this chapter applies who does not hold a

certification or permit issued under Subchapter B, Chapter 21.

(b) Except as provided by Subsection (c), a person who is

alleged to have violated Section 22B.003 is entitled to a hearing on

the merits of the allegation under the procedures provided by

Chapter 2001, Government Code.

(c) A person who is alleged to have violated Section 22B.003

is not entitled to a hearing under this section if:

(1) a final decision has been entered under other law

finding the person to have engaged in conduct that constitutes

electioneering; or

(2) another governmental body has jurisdiction over

the alleged violation and the commissioner elects not to pursue

enforcement under this section.

(d) On receiving a report under Section 22B.004, or pursuant

to an investigation conducted under Section 39.003, of an alleged

violation of Section 22B.003 by a person who is entitled to a

hearing under this section, the commissioner shall promptly send to

the person written notice that includes:

(1) a statement informing the person that the person

must request, not later than the 10th day after the date the person

receives the notice, a hearing on the merits of the allegation;

(2) a request that the person submit, not later than

the 10th day after the date the person receives the notice, a

written response to show cause why the commissioner should not

pursue an investigation under this section; and

(3) a statement informing the person that if the

person does not timely submit a written response to show cause as

provided by Subdivision (2), the commissioner will instruct the

agency to make available on the Internet portal described by

Section 22.095 information indicating the person is under

investigation for an alleged violation of Section 22B.003.

(e) If a person who is entitled to a hearing under this

section does not request a hearing before the date required by

Subsection (d)(1), the commissioner shall make a determination on

whether the person violated Section 22B.003 based on the contents

of the report submitted under Section 22B.004 or the results of the

investigation under Section 39.003, as applicable.

(f) If the commissioner determines under this section that a

person violated Section 22B.003, the commissioner shall instruct

the agency to add the person to the registry of persons not eligible

for employment in public schools under Section 22.092.

(g) If the commissioner determines that a person did not

violate Section 22B.003 and the agency made available on the

Internet portal described by Section 22.095 information indicating

the person was under investigation in accordance with Subsection

(d)(3), the commissioner shall instruct the agency to immediately

remove the information from the Internet portal.

(h) The commissioner shall adopt rules as necessary to

implement this section.

Sec. 22B.006. EXCEPTION. Notwithstanding any other

provision of this chapter, the State Board for Educator

Certification or the commissioner may elect not to take action

against a person determined to have violated Section 22B.003 if the

person:

(1) was ordered to take the action by another person in

a position of actual or apparent authority over the person; and

(2) could not reasonably have been expected to know

the person's action constituted a violation of that section.

Sec. 22B.007. ADDITIONAL REMEDIAL ACTION. If the

commissioner determines that an action taken by the board of

trustees of a school district or the governing body of an

open-enrollment charter school against a person determined to have

violated Section 22B.003 is not sufficient to deter future

violations of that section, the commissioner may substitute a

remedial action the commissioner determines appropriate.

Sec. 22B.008. AGENCY INVESTIGATIVE AUTHORITY. (a) The

agency's authority to investigate an alleged violation of Section

22B.003 is concurrent with the authority of any other person

charged with investigating such a violation under this chapter.

(b) Another person's dismissal of an alleged violation of

Section 22B.003 does not affect the agency's authority to

investigate the alleged violation.

SECTION 6. Section 39.003(a), Education Code, is amended to

read as follows:

(a) The commissioner may authorize special investigations

to be conducted:

(1) when excessive numbers of absences of students

eligible to be tested on state assessment instruments are

determined;

(2) when excessive numbers of allowable exemptions

from the required state assessment instruments are determined;

(3) in response to complaints submitted to the agency

with respect to alleged violations of civil rights or other

requirements imposed on the state by federal law or court order;

(4) in response to established compliance reviews of

the district's financial accounting practices and state and federal

program requirements;

(5) when extraordinary numbers of student placements

in disciplinary alternative education programs, other than

placements under Sections 37.006 and 37.007, are determined;

(6) in response to an allegation involving a conflict

between members of the board of trustees or between the board and

the district administration if it appears that the conflict

involves a violation of a role or duty of the board members or the

administration clearly defined by this code;

(7) when excessive numbers of students in special

education programs under Subchapter A, Chapter 29, are assessed

through assessment instruments developed or adopted under Section

39.023(b);

(8) in response to an allegation regarding or an

analysis using a statistical method result indicating a possible

violation of an assessment instrument security procedure

established under Section 39.0301, including for the purpose of

investigating or auditing a school district under that section;

(9) when a significant pattern of decreased academic

performance has developed as a result of the promotion in the

preceding two school years of students who did not perform

satisfactorily as determined by the commissioner under Section

39.0241(a) on assessment instruments administered under Section

39.023(a), (c), or (l);

(10) when excessive numbers of students eligible to

enroll fail to complete an Algebra II course or any other advanced

course as determined by the commissioner;

(11) when resource allocation practices as evaluated

under Section 39.0821 indicate a potential for significant

improvement in resource allocation;

(12) when a disproportionate number of students of a

particular demographic group is graduating with a particular

endorsement under Section 28.025(c-1);

(13) when an excessive number of students is

graduating with a particular endorsement under Section

28.025(c-1);

(14) in response to a complaint submitted to the

agency with respect to alleged inaccurate data that is reported

through the Public Education Information Management System (PEIMS)

or through other reports required by state or federal law or rule or

court order and that is used by the agency to make a determination

relating to public school accountability, including accreditation,

under this chapter;

(15) when 10 percent or more of the students

graduating in a particular school year from a particular high

school campus are awarded a diploma based on the determination of an

individual graduation committee under Section 28.0258;

(16) when a school district for any reason fails to

produce, at the request of the agency, evidence or an investigation

report relating to an educator who is under investigation by the

State Board for Educator Certification; [ or ]

(17) in response to an alleged violation of Section

22B.003; or

(18) as the commissioner otherwise determines

necessary.

SECTION 7. Section 39A.001, Education Code, is amended to

read as follows:

Sec. 39A.001. GROUNDS FOR COMMISSIONER ACTION. The

commissioner shall take any of the actions authorized by this

subchapter to the extent the commissioner determines necessary if:

(1) a school district does not satisfy:

(A) the accreditation criteria under Section

39.052;

(B) the academic performance standards under

Section 39.053 or 39.054; or

(C) any financial accountability standard as

determined by commissioner rule; [ or ]

(2) the commissioner considers the action to be

appropriate on the basis of a special investigation under Section

39.003 ; or

(3) a school district initiates or maintains an action

or proceeding against the state or an agency or officer of the

state .

SECTION 8. Subchapter A, Chapter 39A, Education Code, is

amended by adding Section 39A.008 to read as follows:

Sec. 39A.008. INTERVENTION RELATED TO SCHOOL DISTRICT OR

OPEN-ENROLLMENT CHARTER SCHOOL ACTION OR PROCEEDING AGAINST STATE.

(a) This section applies to a school district or open-enrollment

charter school subject to commissioner action under Section

39A.001(3).

(b) The commissioner shall appoint a conservator to a school

district or open-enrollment charter school to which this section

applies.

(c) The conservator appointed under Subsection (b) shall

require the school district or open-enrollment charter school to

demonstrate, by a deadline established by the conservator, that the

district or school is in compliance with Sections 45.105(c-1) and

45.1051. If the conservator determines that the district or school

is not in compliance with those sections, the conservator shall

order the district or school to, as applicable:

(1) withdraw from the action or proceeding; or

(2) take the necessary actions to come into compliance

with Section 45.1051.

(d) If a school district or open-enrollment charter school

fails to comply with an order by the conservator by the deadline

established by the conservator, the commissioner may:

(1) for a school district, appoint a board of managers

to oversee the operations of the district; or

(2) for an open-enrollment charter school, order

reconstitution of the school's governing board.

SECTION 9. Subchapter B, Chapter 44, Education Code, is

amended by adding Section 44.048 to read as follows:

Sec. 44.048. PROHIBITED CONTRACTING. (a) In this section,

"electioneering" has the meaning assigned by Section 22B.001.

(b) A school district or open-enrollment charter school may

not contract with:

(1) a person for services that would constitute

electioneering or services supportive of electioneering;

(2) a person who subcontracts with a person to provide

services described by Subdivision (1); or

(3) a person who is included in or who will assign

duties under the contract or subcontract to a person who is included

in the registry of persons not eligible for employment in public

schools under Section 22.092 based on a determination that the

person engaged in electioneering.

SECTION 10. Section 45.105(c-1), Education Code, is amended

to read as follows:

(c-1) Notwithstanding any other law, federal, state, or

local funding, including funding under Chapters 46, 48, and 49,

[ Funds described by Subsection (c) ] may not be used to initiate or

maintain any action or proceeding against the state or an agency or

officer of the state , including an action or proceeding that

includes a claim of ultra vires conduct [ arising out of a decision,

order, or determination that is final and unappealable under a

provision of this code ], except that funds may be used for an action

or proceeding that is specifically authorized by a provision of

this code or by Section 2001.038, Government Code [ a rule adopted

under this code and that results in a final and unappealable

decision, order, or determination ].

SECTION 11. Subchapter E, Chapter 45, Education Code, is

amended by adding Section 45.1051 to read as follows:

Sec. 45.1051. LIMITATION ON ATTORNEY PAYMENTS FOR CERTAIN

ACTIONS. (a) If a school district or open-enrollment charter

school brings an action against the agency, the State Board of

Education, or the State Board for Educator Certification or an

agent or officer of those entities that alleges ultra vires conduct

by the entity or an agent or officer of the entity, the district or

school must deposit all payments relating to the action owed to the

district's or school's attorney in an escrow account. The district

or school may use money deposited in the escrow account to pay the

district's or school's attorney only:

(1) after:

(A) a final judgment is rendered; and

(B) all appeals are fully resolved; and

(2) if the district or school prevails in the action.

(b) A school district or open-enrollment charter school

shall provide money deposited in an escrow account under this

section that may not be paid to the district's or school's attorney

under Subsection (a) after the rendering of a final judgment and the

resolution of all appeals to the state for deposit in the foundation

school fund.

(c) This section may not be interpreted to authorize an

action not otherwise authorized by law.

SECTION 12. Section 251.001(16), Election Code, is amended

to read as follows:

(16) "Political advertising" means 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:

(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 of written

communication; or

(ii) on an Internet website , including on

any social media platform, or in any electronic communication; or

(C) is directed to an individual person or

multiple persons through any form of communication .

SECTION 13. The heading to Section 255.003, Election Code,

is amended to read as follows:

Sec. 255.003. UNLAWFUL USE OF PUBLIC RESOURCES [ FUNDS ] FOR

POLITICAL ADVERTISING AND CERTAIN POLITICAL ACTIVITIES .

SECTION 14. Section 255.003, Election Code, is amended by

adding Subsections (a-1) and (a-2) and amending Subsection (c) to

read as follows:

(a-1) An officer, employee, or contractor of a school

district or open-enrollment charter school may not use or authorize

the use of public money or resources to:

(1) distribute a communication in any form advocating

for or opposing any candidate, measure, or political party; or

(2) facilitate any activity by a student or other

person for advocacy communications to an elected officer or

employee of an elected officer for or against a matter for which the

officer may vote or take an official action.

(a-2) For purposes of Subsection (a-1):

(1) the following qualifies as the use of public money

or resources:

(A) the development or distribution, or

arrangement for the development or distribution, of a communication

described by Subsection (a-1)(1) that occurs during the working

hours of an officer, employee, or contractor or during any period of

time in which the officer, employee, or contractor is compensated

by the school district or open-enrollment charter school; or

(B) the provision of contact information by an

officer, employee, or contractor of a school district or

open-enrollment charter school to a political action committee or

similar entity for the purpose of distributing a communication

described by Subsection (a-1)(1);

(2) the use of a personal electronic device on school

district or open-enrollment charter school property by an officer,

employee, or contractor to access the Internet during the

officer's, employee's, or contractor's personal time for the

purpose of developing or distributing, or arranging for the

development or distribution of, a communication described by

Subsection (a-1)(1) does not qualify as the use of public funds or

resources; and

(3) a person's presence on school district or

open-enrollment charter school property while engaging in

electioneering, as defined by Section 22B.001, Education Code,

outside of work hours does not constitute the expenditure of public

money.

(c) A person who violates Subsection (a) , (a-1), or (b-1)

commits an offense. An offense under this section is a Class A

misdemeanor.

SECTION 15. Section 255.0031(b), Election Code, is amended

to read as follows:

(b) Subsection (a) does not apply to:

(1) the use of an internal mail system to distribute

political advertising that is delivered to the premises of a state

agency or political subdivision through the United States Postal

Service if the officer or employee is unaware that the distributed

materials contain political advertising ; or

(2) the use of an internal mail system by a state

agency or municipality to distribute political advertising that is

the subject of or related to an investigation, hearing, or other

official proceeding of the agency or municipality.

SECTION 16. Section 572.059, Government Code, is amended by

adding Subsections (d) and (e) to read as follows:

(d) Subsections (c)(2) and (3) do not apply to a member of

the governing body of a school district with respect to a

legislative measure outside the district's authority.

(e) This section does not prohibit a person from providing

information to a member of the legislature on request.

SECTION 17. The following provisions of the Education Code

are repealed:

(1) Section 11.169; and

(2) Section 45.109(e).

SECTION 18. Section 44.048, Education Code, as added by

this Act, applies only to a contract entered into or renewed on or

after the effective date of this Act. A contract entered into or

renewed before the effective date of this Act is governed by the law

in effect on the date the contract was entered into or renewed, and

the former law is continued in effect for that purpose.

SECTION 19. The changes in law made by this Act apply only

to conduct that occurs on or after the effective date of this Act.

Conduct that occurs before the effective date of this Act is

governed by the law in effect before the effective date of this Act,

and that law is continued in effect for that purpose.

SECTION 20. This Act takes effect immediately if it

receives a vote of two-thirds of all the members elected to each

house, as provided by Section 39, Article III, Texas Constitution.

If this Act does not receive the vote necessary for immediate

effect, this Act takes effect September 1, 2025.