|At various times, and particularly during political campaign season, some candidates have expressed a desire to distribute their campaign materials at Township Hall. Political subdivisions are prohibited from spending public funds or using public resources for political advertising. §255.003 TEX. ELEC. CODE; ETHICS ADVISORY OP. NO. 443 (2002).
§255.003 TEX. ELEC. CODE states:
Sec. 255.003. UNLAWFUL USE OF PUBLIC FUNDS FOR POLITICAL ADVERTISING. (a) An officer or employee of a political subdivision may not knowingly spend or authorize the spending of public funds for political advertising.
(c) A person who violates Subsection (a) or (b-1) commits an offense. An offense under this section is a Class A misdemeanor.
The Texas Ethic Commission (TEC) is responsible for administering and enforcing this statute. The TEC has defined “public funds” to include room use. ETHICS ADVISORY OP. NO. 443 (2002)(holding school district was prohibited from posting candidate election flyers in a teachers’ lounge, even if all candidates were afforded such opportunity).
The TEC noted the only exception to the statute would be where the public funds supported an open public forum. See, Lehman v. City of Shaker Heights, et. al., 94 S. Ct. 2714, 2716 (1974)(car card space on city transit system held not to be First Amendment open forum, so that refusal to accept political advertising did not violate First or Fourteenth Amendment).
Open public forums are open to all First Amendment protected expression, subject only to reasonable time, place and manner restrictions. Streets, parks, and sidewalks are considered open to public discourse by tradition and are designated as traditional public forums. That a governmental building, such as Town Hall, is open to the public does not make it an open public forum. See also, Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 103 S. Ct. 948 (2001)(on government property which has not been made a public forum, not all speech is equally situated; the state may draw distinctions which relate to the special purpose for which the property is used).
The government creates a designated public forum when it intentionally opens a nontraditional forum for public discourse. Limited public forums, such as Township’s meeting rooms, are nonpublic forums that have been specifically designated by the government as open to certain groups or topics. But see, Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n., 103 S. Ct. 948, 949 (school mail facilities not limited public forum “merely because system had been opened periodically to church or civic groups and employees’ bargaining agent). Limited public forums would not satisfy the requirements of the §255.003 TEX. ELEC. CODE. §255.003 TEX. ELEC. CODE; ETHICS ADVISORY OP. NO. 443 (2002). Legal counsel provided a more detailed explanation of public forums was sent to the Board members on December 3, 2015.
The Texas Election Code provides that the TEC may issue an advance written advisory opinion, where there is a question regarding the legality of using public funds and resources. TEX. ELEC. CODE § 255.003(e). It is an affirmative defense to prosecution for an offense under this section or the imposition of a civil penalty if a governmental body relies on a written opinion issued by a court, the attorney general or the TEX. ELEC. CODE § 255.003(d).