Can a Texas county use taxpayer money to hire a lobbyist to influence the Legislature?

Texas AG Opinion JC-0089: Whether a County Can Spend Public Funds to Hire a Lobbyist

Plain-English summary

Counties in Texas have interests at the Legislature, and many would like to hire a lobbyist to press those interests. The Bexar County Criminal District Attorney asked whether a county can use public funds to pay a registered lobbyist to communicate with legislators to influence legislation. The Attorney General concluded that it can, and that section 305.026 of the Government Code supplies the authority.

The wrinkle is that a county is not a home-rule city. It has only the powers the Texas Constitution or a statute gives it, expressly or by necessary implication. So the question was not really about ethics rules but about authority: does any statute let a commissioners court hire a lobbyist at all? The opinion found that authority in section 305.026 itself. That section is written as a prohibition: public funds of a political subdivision may not be used to compensate or reimburse someone over $50 for communicating directly with a legislator to influence legislation unless that person is a registered lobbyist, resides in the legislator's district, or files a written statement with the Texas Ethics Commission. Critically, section 305.026 expressly lists counties among the "political subdivisions" it covers.

The opinion reasoned that if the statute did not authorize counties to hire lobbyists, then naming counties in it would be surplusage, words with no effect. Reading it the other way (as conditionally permitting the practice) gave the inclusion of counties real meaning. The Texas Ethics Commission had reached the same practical reading, noting that restricting how public funds pay a lobbyist implies it is permissible to use those funds when the conditions are met. The legislative history pointed the same direction, including a floor report observation that it would be unreasonable to deny public entities the same access to legislators that private companies have. On that basis, the opinion concluded section 305.026 grants counties authority to hire registered lobbyists.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the opinion allow counties to use tax dollars on lobbyists?
Yes. It concluded that section 305.026 of the Government Code authorizes a county to spend public funds to retain a registered lobbyist to communicate with legislators on the county's behalf.

How can a statute written as a prohibition grant that power?
The opinion read the grant as arising by necessary implication. Because section 305.026 specifically includes counties among the political subdivisions whose funds may pay a lobbyist when conditions are met, treating it as no authority at all would make the reference to counties meaningless surplusage.

What conditions does section 305.026 attach to paying a lobbyist?
The statute bars using a political subdivision's public funds to compensate or reimburse over $50 for communicating directly with a legislator to influence legislation unless the person is a registered lobbyist, resides in that legislator's district, or files a written statement with the Texas Ethics Commission identifying the person, the amount, and the affected subdivision.

Why did the question go to the Attorney General rather than the Ethics Commission?
The Texas Ethics Commission had read the statute to permit the practice but said the underlying constitutional question of a county's authority was the Attorney General's province, so it referred that piece to this office.

Background and statutory framework

Chapter 305 of the Government Code, the lobbyist registration law, declares in section 305.001 the policy of publicly disclosing the identity, expenditures, and activities of persons who try to persuade legislative or executive officials to act. Persons engaged for compensation in influencing legislation must register with the Texas Ethics Commission under sections 305.002(10) and .003 and file verified activity and expenditure reports under section 305.006. Section 305.026 then limits the use of a political subdivision's public funds to pay someone over $50 to communicate directly with a legislator to influence legislation, with exceptions for a registered lobbyist, a resident of the legislator's district, or one who files a written statement with the Commission. Section 305.026(b)(2) expressly includes counties within "political subdivision."

The authority analysis rested on the rule that, unlike a home-rule city, a county has only the powers conferred by the constitution or by statute, citing article V, section 18 and Canales v. Laughlin, and that such powers may be conferred expressly or by necessary implication, citing Anderson v. Wood (152 S.W.2d 1084). Reading section 305.026's express inclusion of counties as more than surplusage, and supported by the Ethics Commission's view and the bill's floor report (House Comm. on State Affairs bill analysis for the committee substitute to S.B. 1, 72d Leg., R.S. (1991)), the opinion found the implied authority for counties to hire registered lobbyists.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 18
• Tex. Gov't Code Ann. § 305.001, §§ 305.002(10), .003, § 305.006, § 305.026 (Vernon 1998)

Cases:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0089
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0089.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

August 10, 1999

The Honorable Susan D. Reed
Criminal District Attorney
Bexar County Justice Center
300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

Opinion No. JC-0089

Re: Authority of county to expend public funds to retain registered lobbyist (RQ-0024)

Dear Ms. Reed:

You ask whether a county may use public funds to pay a registered lobbyist to communicate with legislators in order to influence legislation. We conclude that section 305.026 of the Government Code provides statutory authority for the county to do so.

Chapter 305 of the Government Code, entitled Registration of Lobbyists, declares that:

[t]o preserve and maintain the integrity of the legislative and administrative processes, it is necessary to disclose publicly and regularly the identity, expenditures, and activities of certain persons who, by direct communication with government officers, engage in efforts to persuade members of the legislative or executive branch to take specific actions.

TEX. GOV'T CODE ANN. § 305.001 (Vernon 1998). To that end, certain persons engaged, generally for compensation, in attempting to influence legislation are required to register with the Texas Ethics Commission, see id. §§ 305.002(10), .003, and to file with the Commission verified reports of their activities and expenditures in this regard. Id. § 305.006.

Section 305.026 of the Government Code prohibits anyone other than a registered lobbyist or a resident of a legislator's district from communicating for compensation with that legislator in order to influence legislation on behalf of a political subdivision:

Public funds available to a political subdivision may not be used to compensate or reimburse the expenses over $50 of any person for the purpose of communicating directly with a member of the legislative branch to influence legislation, unless the person being compensated or reimbursed resides in the district of the member with whom the person communicates or files a written statement with the commission that includes the person's name, the amount of compensation or reimbursement, and the name of the affected political subdivision.

Id. § 305.026(a). Section 305.026(b) specifically includes counties within the definition of political subdivision. See id. § 305.026(b)(2).

You ask in effect whether section 305.026 provides specific statutory authority for a commissioners court to pay a registered lobbyist to lobby the legislature on the county's behalf. See Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable John Cornyn, Texas Attorney General (Feb. 17, 1999). As you note, the Texas Ethics Commission has taken the view that "[t]he fact that section 305.026 restricts the use of public funds to pay a lobbyist unless certain conditions are met implies that it is permissible to use political subdivision funds to be [sic] a lobbyist when those conditions are met." See Letter from Sarah Woelk, Director of Advisory Opinions and Education, Texas Ethics Commission, to Mr. Don Adams, Adams & Adams (Sept. 30, 1998) (letters on file with Opinion Committee). The Commission, however, also opines that constitutional questions concerning the matter are the province of this office. Id.

The constitutional question is essentially a question of authority. Unlike a home-rule city, a county has only the powers conferred by the Texas Constitution or by statute. See TEX. CONST. art. V, § 18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). Such powers may be conferred expressly or by necessary implication. See Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941). The question therefore is whether section 305.026 grants the commissioners court authority to hire a registered lobbyist.

We conclude that it does by necessary implication. As we have noted, the section specifically includes counties within the definition of "political subdivision." Were we to conclude that because the provision is couched in negative rather than positive terms the section did not authorize counties to engage lobbyists, that inclusion would be surplusage. Moreover, the legislative history you cite to us, particularly the argument in the floor report that "[i]t would be unreasonable to deprive public entities of the same access that private companies have, when they have the public interest in mind," certainly suggests that the legislature viewed the section as granting political subdivisions the authority to hire lobbyists. HOUSE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. Comm. Substitute S.B. 1, 72d Leg., R.S. (1991). Accordingly, we view section 305.026 as granting counties the authority to hire registered lobbyists.

SUMMARY

Section 305.026 of the Government Code authorizes a county to expend public funds to retain the services of a registered lobbyist.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee