What You Need To Know

Effective September 1, 1999
Revised July 28, 1999

The Texas Election Law requires certain disclosures and notices on political advertising. The law also prohibits certain types of misrepresentation in political advertising and campaign communications. This guide explains what you need to know to insure that your political advertising and campaign communications comply with the law.

If you are not sure what the law requires, do the cautious thing. Use the political advertising disclosure statement whenever you think it might be necessary, and do not use any possibly misleading information in political advertising or a campaign communication. If you are using political advertising or campaign communications from a prior campaign, you should check to see if the law has changed since that campaign.

REQUIRED DISCLOSURE ON POLITICAL ADVERTISING

I. What Is Political Advertising?

The disclosure statement and notice requirements discussed in this section apply to “political advertising.” In the law, “political advertising” is a specifically defined term. Do not confuse this special term with your own common-sense understanding of advertising.
To figure out if a communication is political advertising, you must look at what it says and where it appears. If a communication fits in one of the categories listed in Part A (below) and if it fits in one of the categories listed in Part B (below), it is political advertising.

Part A. What Does It Say?

1. Political advertising includes communications supporting or opposing a candidate for nomination or election to either a public office or an office of a political party (including county and precinct chairs).
2. Political advertising includes communications supporting or opposing an officeholder, a political party, or a measure (a ballot proposition).

Part B. Where Does It Appear?

1. Political advertising includes communications that appear in pamphlets, circulars, fliers, billboards or other signs, bumper stickers, or similar forms of written communication.
2. Political advertising includes communications that are published in newspapers, magazines, or other periodicals in return for consideration.
3. Political advertising includes communications that are broadcast by radio or television in return for consideration.

Notice that under Part B(2) and Part B(3) there is a “consideration” requirement. “Consideration” is a legal term meaning, in this context, that the publisher or broadcaster received something of value in exchange for publishing or broadcasting the communication. The effect of the consideration requirement in Part B(2) and Part B(3) is that communications in the form of editorials, “op-ed” pieces, letters to the editor, or call-ins to a radio show, for example, are not “political advertising” and are not required to carry a disclosure.

II. When Is a Disclosure Statement Required?

Political advertising, with a few exceptions, must include a “disclosure” statement (sometimes referred to as a “disclaimer”). The disclosure statement is required on political advertising if you have entered into a contract or other agreement to print, publish, or broadcast the political advertising.
You enter into an agreement to print, publish, or broadcast something if another person agrees to do the printing, publishing, or broadcasting for you. There is an agreement even if the other person agrees to do the printing for free.

Example: If you make your own yard signs from scrap wood or print political fliers with your own computer and printer, the disclosure statement is not required. But, if you print a master copy of a political flier at home and then you agree to have the fliers printed at a copy shop, the disclosure statement is required.
In some circumstances, you will not be sure whether there was an “agreement.” Instead of worrying about it, do the cautious thing and use the disclosure. That way no one can claim you have violated the law.

III. What Should the Disclosure Statement Say?

A disclosure statement must include the following:

1. the words “political advertising” or a recognizable abbreviation such as “pol. adv.”;
2. the full name of either (a) the individual who personally entered into the agreement with the printer, publisher, or broadcaster of the political advertising; or (b) the person that individual represents (for example, the name of a candidate or the name of a political committee); and
3. if the advertising is printed or published, the address of the individual or entity named in the disclosure statement.

The disclosure statement does not have to include the words “paid for by.” Nor does the disclosure statement have to include the name of a campaign treasurer. Of course, the campaign treasurer can be named in the ad if he or she is the individual who entered into the agreement or is the person that individual represents.

IV. Ads Sponsored By Political Committees.

If the treasurer of a political committee enters into an agreement to have an ad supporting a candidate printed, the disclosure statement may include the name or address of either the treasurer or the committee. If an individual other than the treasurer enters into the agreement, the disclosure statement should include the name of either that individual or the committee.

We advise that advertising not be attributed to entities such as “Committee to Elect John Doe” unless a specific-purpose committee named “Committee to Elect John Doe” has filed a campaign treasurer appointment with the Ethics Commission or a local filing authority.

V. Where Must The Disclosure Statement Appear?

The law simply states that the disclosure statement must be “in the advertising.” What this means in different types of political advertising will not always be clear. To be safe, make sure the disclosure is readily noticeable to anyone seeing or hearing the ad. (See discussion on size of word “for” in political advertisements and campaign communications under MISREPRESENTATION, Part II.)

VI. Are There Any Exceptions To The Disclosure Statement Requirement?

The following types of political advertising do not need the disclosure statement:

1. balloons, buttons, emery boards, hats, lapel stickers, magnets, pencils, pens, pins, wooden nickels, and similar materials;
2. invitations or tickets to political fundraising events or to events held to establish support for a candidate or officeholder;
3. an envelope that is used to transmit political advertisement, provided that the political advertisement in the envelope includes the disclosure statement; and
4. political advertising printed on letterhead stationery, if the letterhead includes the name and address of the individual who entered into the agreement with the printer or publisher of the advertising or the name and address of the person that individual represents. (Note: There is also an exception for holiday greeting cards sent by an officeholder, provided that the officeholder’s name and address appear on the card or the envelope.)

VII. The Fair Campaign Practices Act.

The Fair Campaign Practices Act sets out basic rules of decency, honesty, and fair play to be followed by candidates and political committees during a campaign. A candidate or political committee who chooses to subscribe to the voluntary code must sign a copy of the code and file it with the authority with whom the candidate or committee is required to file its campaign treasurer appointment. A person subscribing to the code may indicate that fact on political advertising by including the following or a substantially similar statement: (Name of the candidate or political committee, as appropriate) subscribes to the Code of Fair Campaign Practices.

VIII. Special Rule for Judicial Candidates, Officeholders, and Committees.

Candidates for the Supreme Court, Court of Criminal Appeals, courts of appeals, district courts, statutory county courts (county courts-at-law), and statutory probate courts are required to file a form declaring their intent to either comply with or exceed the voluntary expenditure limits of the Judicial Campaign Fairness Act. A candidate who has declared an intent to comply with the expenditure limits, as well as a specific-purpose committee supporting such a candidate, may state the following in political advertising:
Political advertising paid for by (name of candidate or committee) in compliance with the voluntary limits of the Judicial Campaign Fairness Act.

If a candidate declares an intent to exceed the expenditure limits, however, both the candidate and any specific-purpose committee supporting the candidate must include in their political advertising the following statement: Political advertising paid for by (name of candidate or committee), (who or which) has rejected the voluntary limits of the Judicial Campaign Fairness Act.

ROAD SIGNS

I. When Is The “Right-Of-Way” Notice Required?

Written political advertising that is meant to be seen from a road must carry a “right-of-way” notice in the following circumstances:

1. if you enter into a “contract or agreement” to print or make written political advertising meant to be seen from a road; or
2. if you instruct another person to place the written political advertising meant to be seen from a road.

II. What Should The “Right-Of-Way” Notice Say?

Section 255.007 of the Texas Election Code prescribes the exact language of the notice:
NOTICE: IT IS A VIOLATION OF STATE LAW (CHAPTERS 392 AND 393, TRANSPORTATION CODE) TO PLACE THIS SIGN IN THE RIGHT-OF-WAY OF A HIGHWAY.
Note: The notice on political advertising signs printed or made before September 1, 1997, contained a citation to a prior law. You may continue to use those signs if they otherwise comply with the law.

III. Do Yard Signs Have To Have The Right-Of-Way Notice?

Yes. The “right-of-way” notice requirement applies to signs meant to be seen from any road. The notice requirement assures that a person responsible for placing signs is aware of the restriction on placing the sign in the right-of-way of a highway.

IV. What About Bumper Stickers?

Bumper stickers do not need the right-of-way notice. They do, however, need a political advertising disclosure statement.

V. Where May I Place My Signs?

For information about exactly where you may or may not place signs, check with your city or county government or with the Texas Department of Transportation.

MISREPRESENTATION

I. Are There Restrictions On The Contents Of Political Advertising?

Political advertising and campaign communications may not misrepresent a person’s identity or official title, nor may they misrepresent the true source of the advertising or communication. The election law does not address other types of misrepresentation in political advertising or campaign communications.
Note that the misrepresentation rules apply to both political advertising and campaign communications. “Campaign communication” is a broader term than “political advertising.”

A “campaign communication” means “a written or oral communication relating to a campaign for nomination or election to public office or office of a political party or to a campaign on a measure.”

II. Misrepresentation Of Office Title.

A candidate may not represent that he or she holds an office that he or she does not hold at the time of the representation. If you are not the incumbent in the office you are seeking, you must make it clear that you are seeking election rather than reelection by using the word “for” to clarify that you don’t hold that office. The word “for” must be at least one-half the type size as the name of the office. For example, a non-incumbent may use the following formats:

III. Misrepresentation Of Identity Or Source.

A person violates the law if, with intent to injure a candidate or influence the result of an election, the person misrepresents the source of political advertising or a campaign communication or if the person misrepresents his or her own identity or the identity of his or her agent in political advertising or in a campaign communication. (If someone else is doing something for you, that person is your agent.) What this means is: No Dirty Tricks! For example, you may not take out an ad in favor of your opponent that purports to be sponsored by a notoriously unpopular group.

IV. Use Of State Seal.

Only officeholders may use the state seal in political advertising.