Recent Texas Attorney General Opinion and Ethics Advisory Opinion of Interest to Cities

Note:  Included opinions are from September 1, 2021 through October 10, 2021.

KP-0386  (Face Coverings): Executive Order GA-38 generally prohibits a governmental entity, including a county, city, school district, or public health authority, from requiring any person to wear a face covering or to mandate that another person wear a face covering.

Section 39.03 of the Penal Code makes it an offense for a “public servant acting under color of his office or employment” to intentionally deny or impede “another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful.”

Executive Order GA-38 creates immunity for Texans to be free from enforcement of most local governmental mandates that require face coverings. A court could find under certain facts that a governmental official intentionally denying that immunity to an individual by enforcing an unlawful face covering mandate is in violation of section 39.03 of the Penal Code.

EAO-563 (Political Advertising): Section 255.003(a) does not broadly prohibit political subdivisions from producing or advertising an event that uses an official’s title in its name. However, such an event that otherwise entails the use of public funds to support or oppose a candidate or measure would violate section 255.003(a).

Section 255.003(a) does not prohibit discussion of matters pending before a governmental body. However, it does prohibit one or more members of a governmental body from arranging a discussion of a matter not pending before the governmental body in the hopes that broadcasts of the discussion would influence the outcome of an election.

An officer or employee of a political subdivision may not spend public funds to produce an event for the purposes of providing a place for public officials to distribute campaign items.