With its most recent advisory opinion, the full extent of the Texas Ethics Commission’s (TEC) extremism on Texas’ lobby law is on public display, and even its defenders must confess the regulator’s draconian positions far exceed common sense or conventional wisdom.

The events giving rise to the opinion took place during a House State Affairs Committee hearing in March 2015. The hearing was on unconstitutional legislation authored by State Affairs Chairman Byron Cook (R–Corsicana) to expand the power of the TEC even further. During testimony against the legislation by Empower Texans legal counsel Trey Trainor and Joe Nixon, several members of the committee inquired why the two had not expressed their criticism of the bill to members’ offices prior to the hearing.

The two attorneys explained they had not out of fear that doing so would cause the TEC to determine them to be lobbyists, and require them to pay a $750 annual registration fee.

In response, State Reps. Charlie Geren (R-Fort Worth) and Dan Huberty (R-Kingwood) invited Trainor and Nixon to come to their offices. After consulting the TEC’s Executive Director, who was present at the hearing, on appropriate wording, the two representatives gave written notes to Trainor and Nixon inviting them to come to their respective offices to share their opinions on the legislation.

One of the notes read:

“You are welcome to discuss HB 37 or any other legislation in my office at any time. I invite your input. If you need help bring anyone you need.”

The second letter invited Nixon and Trainor to the representative’s office, noting that the letter was a “personal, formal invitation to gather your advice on these bills.”

Rather than visit the offices, Trainor and Nixon submitted requests for an advisory opinion from the TEC as to whether attending the meeting, even with the written invitations, would cause them to be forced to register as lobbyists and pay the mandatory $750 fee.

A full year later, the TEC answered. Because the invitations were not limited to requests for “facts or data,” according to the TEC, Trainor and Nixon would have been required to register as lobbyists if they had taken the meeting. This is despite the fact that the Executive Director of the TEC reviewed the notes before they were issued to Nixon and Trainor. If Nixon and Trainor had taken the meetings, and not registered and paid the $750 fee, they would have been subject to civil penalties and potentially criminal prosecution.

If attorneys, elected officials who write the laws, and the very bureaucrats who enforce the lobby law still run afoul of its requirements, how are average Texans ever expected to walk such a treacherous legal tightrope? In reality, many don’t try. They are silenced by the lobby law and its complexities.

The Texas Ethics Commission is totally out of control and presents a clear and present danger to the First Amendment rights to free speech and to petition government of 27 million Texans. The state’s lobby registration law must be struck down or repealed, and the TEC, in its current form, must be dismantled.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


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