Q: I have some candidates wanting to communicate with registered voters through direct mail. I can get the list from the county. But Election Code Sec. 18.009, Unlawful Use of Information on Registration List, states: (a) A person commits an offense if the person uses information in connection with advertising or promoting commercial products or services that the person knows was obtained under Section 18.008. (b) An offense under this section is a Class A misdemeanor. Does this specifically exclude commercial products or services but not political advertising?
A: Just got off the phone with Sam Taylor of the Secretary of State’s Elections Division Communications Department. Taylor said another section of our state Election Code allows an information requester to use voter registration list information for political campaign purposes, but not for the promotion of commercial products or services.
Taylor cited Election Code Sec. 18.066, specifying that to receive information under this section a requestor must submit an affidavit to the secretary of state, stating that the person will not use the information obtained in connection with advertising or promoting commercial products or services.
Sec. 18.066, Availability of Statewide Computerized Voter Registration List Information, also tells you that you may be charged for a copy of the information.
Furthermore, Sec. 18.066 says the registration list information would not include a voter’s Social Security number, the residence address of a voter who is a federal judge or state judge or the spouse of a federal judge or state judge.
Q: It has come to light that one of our higher-ranking although non-elected city employees was convicted of a job-related felony in another county, where she held the same position. Wouldn’t that disqualify her from continuing as an employee?
A: As you pointed out, this person’s position is not an elective office, so Election Code Sec. 141.001, Eligibility Requirements for Public Office, would not apply. See paragraph (a) subparagraph (4) says that, “To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must: have not been finally convicted of a felony from which the person has not been pardoned or otherwise released from the resulting disabilities.”
It might be prudent for the city to confirm if the employee has been “pardoned or otherwise released from the resulting disabilities” and then contemplate any further steps.
Check your home rule city’s charter for language that might relate to the situation.
Q: Is it possible for a city to sue a newspaper for failure to publish a public notice?
A: The First Amendment guarantees that no governmental body has the standing to force a newspaper to publish anything against the publisher’s will.
On the other hand, there is an early Attorney General Ken Paxton opinion, KP-0012, that takes a county to task for failure to notify the public by placing a notice in a newspaper of a proposed budget that included an increase to the sheriff’s salary. As a result, the county was prevented from giving the sheriff a pay increase that year.
Now, please check Government Code Sec. 2051.053, Refusal of Newspaper to Publish Notice or Citation. Under paragraph (a) it says: “The refusal of a newspaper to publish, without receiving advance payment for making the publication, a notice or citation in a state court proceeding in which the state or a political subdivision of the state is a party and in which the cost of the publication is to be charged as fees or costs of the proceeding is considered an unqualified refusal to publish the notice or citation.”
And, under paragraph (b), it says: “The sworn statement of the newspaper’s publisher or the person offering to insert the notice or citation in the newspaper is subject to record as proof of the refusal.”
Q: Our district attorney, while the county grand jury was still in deliberations, said the grand jury could indict, not indict or find probable cause for a less-than-felonious act. I’ve been a reporter for a long, long time, and I’ve never heard of a grand jury finding probable cause concerning a misdemeanor.
A: That strikes me as odd, too. I’ve long held the notion that grand juries in Texas are limited simply to indicting a person on felony charges, that is, true billing; or not indicting, or no-billing. But see what David McHam, in Law & The Media in Texas (texaspress.com/publications) says under the section titled, “The Criminal Process” and under that heading, “The Grand Jury.”
About halfway down the page, you will find this paragraph: “The grand jury may return a true bill, which is an indictment, or a no bill. A no bill does not necessarily exonerate a person who has been charged with an offense. The case could be brought up later. For that reason, no bills are rare. Also, the grand jury may reduce a felony to a misdemeanor.”
The last sentence in the above paragraph threw me. I was moved to go on a hunt and that hunt took me back 57 years to WW-1036, a 1961 opinion by then-Texas Attorney General Will Wilson.
One of the questions asked of Wilson was, “. . . was it the duty of the Grand Jury to either present a no-bill or a misdemeanor indictment or was proper action taken when they wrote a statement that if there was a violation then it should be sent to the County Court?”
Wilson wrote that under the Code of Criminal Procedure (as worded in 1961) “a Grand Jury may return an indictment if it, in its discretion, sees fit to do so. That a Grand Jury may also make recommendations is a well established tradition of our jurisprudence. ...”
In the summary at the end of the opinion, Wilson wrote, “The action of the Grand Jury in refusing to return an indictment and writing a memorandum about the case was within the scope of its power and not improper.”