BILL ANALYSIS

 

 

Senate Research Center	S.B. 2044
89R9162 MZM-F	By: Bettencourt
	State Affairs
	4/22/2025
	As Filed

 

 

 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

 

Over the last year, we have seen a rise in electioneering issues throughout Texas. The Texas Attorney General's office filed suits against multiple independent school districts (ISD) for electioneering violations in 2024, including Denton ISD, Frisco ISD, Denison ISD, and Castleberry ISD. S.B. 2044 strengthens existing electioneering laws and creates new statutes to strictly forbid publicly funded educational institutions and personnel from using official resources to promote political agendas.

 

As proposed, S.B. 2044 amends current law 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; authorizes an administrative penalty; and creates a criminal offense.

 

RULEMAKING AUTHORITY

 

Rulemaking authority is expressly granted to the commissioner of education in SECTION 4 (Sections 22B.004 and 22B.005, Education Code) of this bill.

 

SECTION BY SECTION ANALYSIS

 

SECTION 1. Amends Section 11.061, Education Code, by adding Subsection (b-1), as follows:

 

(b-1) Prohibits a person determined by the State Board for Educator Certification (SBEC) or the commissioner of education (commissioner) to have violated Section 22B.003 from serving 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. Amends Section 12.120, Education Code, by adding Subsection (c), as follows:

 

(c) Prohibits a person determined by SBEC or the commissioner to have violated Section 22B.003 from serving 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. Amends Section 22.092, Education Code, by amending Subsection (c) and adding Subsection (c-1), as follows:

 

(c) Requires that the registry maintained under Section 22.092 (Registry of Persons Not Eligible for Employment in Public Schools) list the following persons as not eligible to be employed by public schools:

 

(1)-(3) makes no changes to these subdivisions;

 

(4) makes a nonsubstantive change to this subdivision;

 

(5) subject to Subsection (c-1), a person who is determined by SBEC to have engaged in electioneering under Section 22B.003;

 

(6) creates this subdivision from existing text and makes a nonsubstantive change; 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) Requires the Texas Education Agency (TEA) to remove a person included in the registry under Subsection (c)(5) or (7) not later than certain dates.

 

SECTION 4. Amends the heading to Subtitle D, Title 2, Education Code, to read as follows:

 

SUBTITLE D. EDUCATORS AND SCHOOL OFFICIALS, EMPLOYEES, AND VOLUNTEERS

 

SECTION 5. Amends Subtitle D, Title 2, Education Code, by adding Chapter 22B, as follows:

 

CHAPTER 22B. ELECTIONEERING PROHIBITED

 

Sec. 22B.001. DEFINITIONS. Defines "electioneering," "measure," and "other charter entity."

 

Sec. 22B.002. APPLICABILITY. Provides that this chapter applies only to the board of trustees or a member of the board of trustees of a school district, the governing body or a member of the governing body of an open-enrollment charter school, an educator, and a school district or open-enrollment charter school employee, agent, or contractor.

 

Sec. 22B.003. ELECTIONEERING PROHIBITED. (a) Prohibits a person to whom this chapter applies, notwithstanding any other law, from using 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) Prohibits a person to whom this chapter applies, except as otherwise provided by law, from using federal, state, or local money or other school resources to encourage or discourage participation in an election.

 

(c) Requires the board of trustees of a school district and the governing body of an open-enrollment charter school to adopt protocols and policies and take actions necessary to ensure compliance with this section.

 

(d) Requires SBEC to 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) Requires 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 to 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 SBEC if the alleged violation was committed by an educator or the commissioner if the alleged violation was committed by a person other than an educator.

 

(b) Requires that the report required by Subsection (a) be in writing and in a form prescribed by SBEC if an educator is the subject of the report or the commissioner if a person other than an educator is the subject of the report.

 

(c) Requires the principal of a school district, district of innovation, open-enrollment charter school, or other charter entity to 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) Provides that 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) Provides that 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. Provides that an offense under this subsection is a state jail felony.

 

(f) Provides that, 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, SBEC is required to determine whether to impose sanctions against the person, including an administrative penalty of not less than $500 and not more than $10,000 and, if SBEC imposes an administrative penalty on the person, prohibited from renewing the person's educator certification until the penalty is paid.

 

(g) Authorizes the commissioner to 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) Requires the commissioner to adopt rules as necessary to implement this section.

 

Sec. 22B.005. DETERMINATION OF ALLEGED ELECTIONEERING; INELIGIBILITY FOR EMPLOYMENT. (a) Provides that this section applies only to a person to whom this chapter applies who does not hold a certification or permit issued under Subchapter B (Certification of Educators), Chapter 21 (Educators).

 

(b) Provides that, 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 (Administrative Procedure), Government Code.

 

(c) Provides that person who is alleged to have violated Section 22B.003 is not entitled to a hearing under this section if a final decision has been entered under other law finding the person to have engaged in conduct that constitutes electioneering or another governmental body has jurisdiction over the alleged violation and the commissioner elects not to pursue enforcement under this section.

 

(d) Requires the commissioner, on receiving a report under Section 22B.004, or pursuant to an investigation conducted under Section 39.003 (Special Investigations), of an alleged violation of Section 22B.003 by a person who is entitled to a hearing under this section, to promptly send to the person written notice that includes:

 

�(1) a statement informing the person that the person is required to 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 TEA to make available on the Internet portal described by Section 22.095 (Internet Portal) information indicating the person is under investigation for an alleged violation of Section 22B.003.

 

(e) Requires the commissioner, 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), to 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) Requires the commissioner, if the commissioner determines under this section that a person violated Section 22B.003, to instruct TEA to add the person to the registry of persons not eligible for employment in public schools under Section 22.092.

 

(g) Requires the commissioner, if the commissioner determines that a person did not violate Section 22B.003 and TEA made available on the Internet portal described by Section 22.095 information indicating the person was under investigation in accordance with Subsection (d)(3), to instruct TEA to immediately remove the information from the Internet portal.

 

(h) Requires the commissioner to adopt rules as necessary to implement this section.

 

Sec. 22B.006. EXCEPTION. Authorizes SBEC or the commissioner, notwithstanding any other provision of this chapter, to elect not to take action against a person determined to have violated Section 22B.003 if the person was ordered to take the action by another person in a position of actual or apparent authority over the person and could not reasonably have been expected to know the person's action constituted a violation of that section.

 

Sec. 22B.007. ADDITIONAL REMEDIAL ACTION. Authorizes the commissioner, 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, to substitute a remedial action the commissioner determines appropriate.

 

Sec. 22B.008. AGENCY INVESTIGATIVE AUTHORITY. (a) Provides that TEA'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) Provides that another person's dismissal of an alleged violation of Section 22B.003 does not affect TEA's authority to investigate the alleged violation.

 

SECTION 6. Amends Section 39.003(a), Education Code, to authorize the commissioner to authorize special investigations to be conducted in certain circumstances, including in response to an alleged violation of Section 22B.003, and to make nonsubstantive changes.

 

SECTION 7. Amends Section 39A.001, Education Code, as follows:

 

Sec. 39A.001. GROUNDS FOR COMMISSIONER ACTION. Requires the commissioner to take any of the actions authorized by Subchapter A (Interventions and Sanctions for School Districts) to the extent the commissioner determines necessary in certain circumstances, including if a school district initiates or maintains an action or proceeding against the state or an agency or officer of the state. Makes nonsubstantive changes.

 

SECTION 8. Amends Subchapter A, Chapter 39A, Education Code, by adding Section 39A.008, as follows:

 

Sec. 39A.008. INTERVENTION RELATED TO SCHOOL DISTRICT OR OPEN-ENROLLMENT CHARTER SCHOOL ACTION OR PROCEEDING AGAINST STATE. (a) Provides that this section applies to a school district or charter school subject to commissioner action under Section 39A.001(3) (relating to authorizing the commissioner to take action if a school district initiates or maintains an action or proceeding against the state or an agency or officer of the state).

 

(b) Requires the commissioner to appoint a conservator to a school district or open-enrollment charter school to which this section applies.

 

(c) Requires the conservator appointed under Subsection (b) to 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. Requires the conservator, if the conservator determines that the district or school is not in compliance with those sections, to order the district or school to, as applicable, withdraw from the action or proceeding or take the necessary actions to come into compliance with Section 45.1051.

 

(d) Authorizes the commissioner, 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, for a school district, to appoint a board of managers to oversee the operations of the district or, for an open-enrollment charter school, order reconstitution of the school's governing board.

 

SECTION 9. Amends Subchapter B, Chapter 44, Education Code, by adding Section 44.048, as follows:

 

Sec. 44.048. PROHIBITED CONTRACTING. (a) Defines "electioneering."

 

(b) Prohibits a school district or open-enrollment charter school from contracting 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. Amends Section 45.105(c-1), Education Code, as follows:

 

(c-1) Prohibits federal, state, or local funding, including funding under Chapters 46 (Assistance with Instructional Facilities and Payment of Existing Debt), 48 (Foundation School Program), and 49 (Options for Local Revenue Levels in Excess of Entitlement), notwithstanding any other law, from being 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, except that funds are authorized to be used for an action or proceeding that is specifically authorized by a provision of this code or by Section 2001.038, Government Code.

 

Deletes existing text prohibiting funds described by Subsection (c) (relating to authorizing certain local school funds to be used for certain purposes) from being used to initiate or maintain any action or proceeding against the state or an agency or officer of the state arising out of a decision, order, or determination that is final and unappealable under a provision of the Education Code, except that the funds are authorized to be used for an action or proceeding that is specifically authorized by a provision of this code or a rule adopted under this code and that results in a final and appealable decision, order, or determination.

 

SECTION 11. Amends Subchapter E, Chapter 45, Education Code, by adding Section 45.1051, as follows:

 

Sec. 45.1051. LIMITATION ON ATTORNEY PAYMENTS FOR CERTAIN ACTIONS. (a) Requires a school district or open-enrollment charter school, if the district or school brings an action against TEA, the State Board of Education, or SBEC or an agent or officer of those entities that alleges ultra vires conduct by the entity or an agent or officer of the entity, to deposit all payments relating to the action owed to the district's or school's attorney in an escrow account. Provides that the district or school is authorized to use money deposited in the escrow account to pay the district's or school's attorney only after a final judgment is rendered and all appeals are fully resolved and if the district or school prevails in the action.

 

(b) Requires a school district or open-enrollment charter school to provide money deposited in an escrow account under this section that is prohibited from being 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) Prohibits this section from being interpreted to authorize an action not otherwise authorized by law.

 

SECTION 12. Amends Section 251.001(16), Election Code, to redefine "political advertising."

 

SECTION 13. Amends the heading to Section 255.003, Election Code, to read as follows:

 

Sec. 255.053. UNLAWFUL USE OF PUBLIC RESOURCES FOR POLITICAL ADVERTISING AND CERTAIN POLITICAL ACTIVITIES.

 

SECTION 14. Amends Section 255.003, Election Code, by adding Subsections (a-1) and (a-2) and amending Subsection (c), as follows:

 

(a-1) Prohibits an officer, employee, or contractor of a school district or open-enrollment charter school from using or authorizing 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 is authorized to vote or take an official action.

 

(a-2) Provides that, for purposes of Subsection (a-1):

 

(1) certain actions qualify as the use of public money or resources;

 

(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) Provides that a person who violates certain subsections of this section, including Subsection (a-1), commits an offense. Provides that an offense under this section is a Class A misdemeanor.

 

SECTION 15. Amends Section 255.0031(b), Election Code, as follows:

 

(b) Provides that Subsection (a) (relating to prohibiting an officer or employee of a state agency or political subdivision from knowingly using or authorizing the use of an internal mail system for political advertising) does not apply to certain actions, including 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.

 

SECTION 16. Amends Section 572.059, Government Code, by adding Subsections (d) and (e), as follows:

 

(d) Provides that Subsections (c)(2) (relating to prohibiting certain persons from being subject to disciplinary action or certain penalties for proposing, endorsing, and expressing support for or opposition to a legislative measure) and (3) (relating to prohibiting certain person from being subject to disciplinary action or certain penalties for the effect of a legislative measure or of a change in law proposed by a legislative measure on any person) 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) Provides that Section 572.059 (Independence of State and Local Officers Acting in Legislative Capacity) does not prohibit a person from providing information to a member of the legislature on request.

 

SECTION 17. Repealer: Section 11.169 (Electioneering Prohibited), Education Code.

 

Repealer: Section 45.109(e) (relating to providing that an agreement entered into before the construction of an instructional facility, stadium, or other athletic facility does not violate Section 11.169), Education Code.

 

SECTION 18. Makes application of Section 44.048, Education Code, as added by this Act, prospective.

 

SECTION 19. Makes application of this Act prospective.

 

SECTION 20. Effective date: upon passage or September 1, 2025.