A free-speech organization is suing the Texas Ethics Commission over its interpretation of state law that would make providing free legal representation to Bell County Treasurer-elect Adriane Hodges a felony.
The Foundation for Individual Rights and Expression (FIRE) wants to challenge a separate Texas law requiring Hodges to forgo her salary because she campaigned on abolishing the office. Before doing so, the group is asking a federal court to block the commission from treating its legal services as an illegal corporate political contribution.
Background
Hodges ran for Bell County treasurer on a promise to work toward abolishing that office. She won the Republican primary, ran unopposed in the General Election, and will take office on January 1, 2027.
However, Texas law singles out officials who “publicly advocated the abolition of the office” during their campaigns. Within five days of taking office, such an official must swear an affidavit electing not to be paid for their services. The affidavit must also describe “the method by which the officer intends” to abolish the office and “the date by which it is proposed to be accomplished.”
Following Hodges’ election, the Bell County Commissioners Court set the Bell County treasurer’s salary at $0 beginning January 1, citing the statute.
Notably, a candidate for Bell County treasurer who promises to keep or expand the office faces no such penalty.
For this reason, FIRE believes the statute discriminates on the basis of viewpoint and compels speech in violation of the First Amendment. It therefore sought to represent Hodges in raising these claims in court pro bono, as FIRE always provides its legal services entirely for free.
The Texas Ethics Commission (TEC), however, determined that FIRE’s pro bono legal work qualifies as a “political contribution from a corporation” under Texas election law. This would make it a third-degree felony for FIRE to provide such services, and a third-degree felony for Hodges if she accepts.
The Lawsuit
FIRE challenged this law by suing the TEC in the U.S. District Court for the Western District of Texas in Waco. It is seeking to block the TEC from enforcing the law so that FIRE may pursue Hodges’ lawsuit before she takes office.
The lawsuit highlighted that the Supreme Court has long classified nonprofit public-interest litigation as “a form of political expression” that the state may regulate only with “narrow specificity.” FIRE asserted that the only interest that can justify restricting contributions is preventing quid pro quo corruption or its appearance, which is not applicable to this case.
FIRE also pointed to a recent decision by the U.S. Fifth Circuit Court of Appeals, which established that a nonprofit law firm faces a “credible threat of enforcement under these provisions” and may sue the TEC to stop it.
This was in a similar case in which the TEC tried to enforce the rule against the Institute for Free Speech (IFS), another nonprofit law firm that provides pro bono representation. That case is ongoing.
FIRE is seeking a declaration that the law is unconstitutionally vague, and violates the “First and Fourteenth Amendments as applied to pro bono legal representation by FIRE of Adriane Hodges.” It also seeks to permanently block the TEC from enforcing “these unlawful provisions” in such a manner.
Yet FIRE also highlighted the need for expedited relief because of Hodges’ timeline, filing a motion for a preliminary injunction on November 3. This would immediately block the TEC from enforcement and allow FIRE to pursue its lawsuit as quickly as possible, before the court has the chance to fully consider this challenge on the merits.
“The facts of this case make prompt relief essential. Ms. Hodges takes office on January 1, 2027, and Texas Local Government Code § 152.052(a) requires her to file the affidavit within five days, by January 6, 2027,” reads the lawsuit. “Ms. Hodges must therefore obtain relief before that deadline.”
FIRE explained in its motion all that must be done in Hodges’ proposed lawsuit.
“This requires FIRE preparing Ms. Hodges’s case for filing, submitting a preliminary injunction motion, permitting time for any opposition, and providing the reviewing court with time to rule,” reads the motion. “FIRE cannot even begin this litigation process while facing the threat that its legal work will be found unlawful, and its already short timeline grows shorter with each passing day.”
FIRE also asked that the court set an expedited briefing schedule and hearing.
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