89R9162 MZM-F
By: Bettencourt S.B. No. 2044
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.