                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NO. 2-09-094-CV


TEXAS ETHICS COMMISSION                                          APPELLANT

                                      V.

TOBY GOODMAN                                                       APPELLEE

                                  ------------

         FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY

                                  ------------

                      MEMORANDUM OPINION 1

                                  ------------

                              I. INTRODUCTION

     The sole issue we address in this summary judgment appeal is whether

Appellee Toby Goodman conclusively established that he reasonably relied upon




     1
       … See Tex. R. App. P. 47.4 (providing that “an opinion must be a
memorandum opinion unless it does any of the following” and listing four
circumstances, none of which are applicable here in light of changes to the
election code).
Advisory Opinion No. 319 2 in defense of his prosecution by the Texas Ethics

Commission (TEC). Because, for the reasons set forth below and based on the

summary judgment record before us, we answer this issue in the affirmative,

we will affirm the trial court’s summary judgment.

                            II. A DVISORY O PINION 319

      In April 1996, the TEC issued Advisory Opinion 319. That opinion, in its

entirety, is set forth below.

                      ETHICS ADVISORY OPINION NO. 319

                                  April 19, 1996

                           Whether a legislator may use
                    political contributions to pay rent and
                    maintenance fees for a condominium in
                    Travis County that the legislator’s wife
                    owns as separate property. (AOR-350)

      The Texas Ethics Commission has been asked whether a legislator
      may use political contributions to pay rent and maintenance fees
      for a condominium in Travis County that the legislator’s wife owns
      as separate property. There are two issues presented by that
      question: whether such payments constitute a conversion of
      political contributions to personal use in violation of section
      253.035 of the Election Code and whether such payments
      constitute a use of political contributions to purchase real estate in
      violation of section 253.038 of the Election Code.

      Although a legislator may not convert political contributions to
      personal use, a legislator who does not ordinarily reside in Travis



      2
          … Hereinafter referred to as Advisory Opinion 319.

                                        2
County may use political contributions to pay “reasonable housing
or household expenses incurred in maintaining a residence in Travis
County.” Elec. Code § 253.035(a), (d)(1). Such payments are
reportable officeholder expenditures. See id. §§ 251.001(9),
254.031(3), (6). The question here is whether such payments are
permissible even if made to a legislator’s spouse.

The Ethics Commission has stated that a candidate or officeholder
may use political contributions to reimburse himself for the use of
personal assets for campaign or officeholder purposes. Ethics
Advisory Opinions Nos. 129, 116 (1993).              Similarly, it is
permissible for a candidate or officeholder to use political
contributions to pay a family member for the use of the family
member’s assets for campaign or officeholder purposes. Any such
reimbursement should be based on the fair market value of the use
of an asset. A conversion of political contributions to personal use
would occur if a legislator paid his spouse more than fair market
value for the use of her real property for officeholder purposes.

Although the personal-use restriction in section 253.035 of the
Election Code does not prohibit a legislator from using political
contributions to pay his spouse fair market value for the use of the
spouse’s assets for officeholder purposes, it has been suggested
that the payments at issue here are prohibited under section
253.038 of the Election Code, which prohibits the use of political
contributions to purchase real property or to pay the interest on or
principal of a note for the purchase of real estate. [FN 1]

The real property in question here is the separate property of the
legislator’s spouse. In Texas a married person has the sole
management, disposition, and control over his or her separate
property. Tex. Const. art. XVI, § 15; Fam. Code § 5.21. A man
who pays rent to his spouse for the use of real property does not
thereby acquire or “purchase” an interest in that property.
Consequently, a legislator’s use of political contributions to make
a rental payment to his spouse for the use of her separate rental
property does not constitute a payment to purchase real property
and does not violate section 253.038 of the Election Code.



                                 3
                                   SUMMARY

      A legislator’s use of political contributions to make a rental
      payment to his spouse for the use of her separate property does
      not constitute a payment to purchase real property and does not
      violate section 253.038 of the Election Code. Nor is such a
      payment a conversion to personal use as long as the payment does
      not exceed the fair market value of the use of the property.




      [FN1]The prohibition on the use of political contributions to
      purchase real property or to make payments on a note for the
      purchase of real property does not apply to a payment made in
      connection with real property purchased before January 1, 1992.
      In the absence of an agreement to the contrary, income from
      separate property is community property. Tex. Const. art. XVI,
      § 15. Although in this case the legislator may have a community
      interest in the rent payments, the legislator does not acquire an
      interest in the real property by virtue of those payments.

Op. Tex. Ethics Comm’n No. 319 (1996) (emphasis added). 3




      3
       … In 2007, the legislature in effect overruled Advisory Opinion 319 by
amending section 253.038 of the election code to expressly prohibit an
officeholder from using a political contribution to pay rent to a business related
to the officeholder or “a person related within the second degree by
consanguinity or affinity . . . to the . . . officeholder.” See Tex. Elec. Code
Ann. § 253.038(a-1)(1) (Vernon Supp. 2009). We are required, however, to
apply the law as it existed at the time of Goodman’s alleged violation. See Act
of May 27, 2007, 80th Leg., R.S., ch 1087, § 3, 2007 Tex. Gen. Laws 3712,
3712–13 (providing that “[a] payment made from political contributions before
September 1, 2007, is governed by the law in effect on the date the payment
was made, and the former law is continued in effect for that purpose”).

                                        4
                           III. F ACTUAL B ACKGROUND

      Goodman was elected to the Texas House of Representatives in 1990

and served in that capacity until January 2007. During Goodman’s service as

a legislator, he claimed Tarrant County as his primary residence.

      In 1999, Goodman and his wife purchased a condominium in Travis

County. Both Goodman and his wife signed a note on the property. The day

after purchasing the condominium, Goodman conveyed all of his interest in the

condominium to his wife by executing a special warranty deed and made the

condominium her separate property via a partition agreement.

      Goodman rented the condominium from his wife and utilized it when he

was in Austin working as a State Representative. He paid rent to his wife from

his political contributions. In 2003, Goodman’s wife sold the condominium.

      In 2004, Goodman and his wife purchased a house in Cedar Park, in

Williamson County, the county just north of Travis County. Again, Goodman

transferred his interest in the house to his wife by a special warranty deed and

made the house her separate property via a partition agreement.          Again,

Goodman rented the house from his wife and utilized it when he was in Austin

working as a State Representative.

      In August 2006, a citizen filed a complaint against Goodman with the

TEC, alleging that Goodman had violated section 253.035 and the then-

                                       5
applicable version of section 253.038 of the election code by making payments

from political contributions to purchase real property or to pay interest or

principle on a note for the purchase of real property.

      Ultimately, the TEC entered a final order determining that Goodman had

violated section 253.035 and the then-applicable version of section 253.038

of the election code and imposed a $10,000 civil penalty against Goodman.

Pursuant to section 571.133 of the government code, Goodman perfected an

appeal of the TEC’s final decision by filing suit in a Tarrant County district court

for a trial de novo.

      In due course, Goodman moved for summary judgment in the trial court.

Goodman     asserted   that his    summary     judgment evidence      conclusively

established his affirmative defense of reasonable reliance on Advisory Opinion

319. Goodman attached various items of summary judgment evidence to his

motion, including his own affidavit. In his affidavit, Goodman disclosed that

after learning of Advisory Opinion 319, he had contacted the TEC and

discussed that opinion with a staff member; according to Goodman, he

forwarded drafts of the special warranty deed and partition agreement relating

to the condominium to the TEC to obtain its input concerning the documents.

      The TEC filed a response to Goodman’s motion for summary judgment.

The only controverting summary judgment evidence attached to the TEC’s

                                         6
response was a short, one-page affidavit of a TEC staff attorney who swore

that he had “found no document or correspondence to, from, or concerning Mr.

Goodman that indicates that Mr. Goodman contacted Texas Ethics Commission

staff or a member of the Texas Ethics Commission in 1999 to discus Advisory

Opinion 319, a Partition Agreement, or a Special Warranty Deed.”

      The trial court granted Goodman’s motion for summary judgment. The

TEC perfected this appeal. In a single issue, the TEC asserts that summary

judgment was improper because a genuine issue of material fact exists on

whether Goodman reasonably relied upon Advisory Opinion 319.

                 IV. S UMMARY J UDGMENT S TANDARD OF R EVIEW

      A defendant is entitled to summary judgment on an affirmative defense

if the defendant conclusively proves all the elements of the affirmative defense.

Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see Tex. R.

Civ. P. 166a(b), (c). To accomplish this, the defendant-movant must present

summary judgment evidence that establishes each element of the affirmative

defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121

(Tex. 1996).    When reviewing a summary judgment, we take as true all

evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.           IHS Cedars




                                        7
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2003).

                     V. S UMMARY J UDGMENT ON G OODMAN’S
                   R EASONABLE R ELIANCE A FFIRMATIVE D EFENSE

A.    Statutory Construction of the Reasonable Reliance Defense

      The purpose of a TEC advisory opinion is not to make specified conduct

illegal; the effect of a TEC advisory opinion is to provide those who reasonably

rely on the opinion a defense in an action to impose a civil remedy. See Op.

Tex. Ethics Comm’n No. 147 (1993). In connection with prosecutions by the

TEC, the government code provides:

      It is a defense to prosecution or to imposition of a civil penalty that
      the person reasonably relied on a written advisory opinion of the
      commission relating to the provision of the law the person is
      alleged to have violated or relating to a fact situation that is
      substantially similar to the fact situation in which the person is
      involved.

Tex. Gov’t Code Ann. § 571.097 (Vernon 2004).               Goodman moved for

summary judgment, alleging that he had conclusively established the defense

of his reasonable reliance on Advisory Opinion 319. We engage in a statutory

construction of government code section 571.097 to determine the elements

of the reasonable reliance defense.

      The meaning of a statute is a legal question, which we review de novo

to ascertain and give effect to the legislature’s intent. Entergy Gulf States, Inc.

                                        8
v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); F.F.P. Operating Partners.,

L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Where the text is clear,

the text is determinative of that intent. Entergy, 282 S.W.3d at 437 (citing

State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (“[W]hen possible, we

discern [legislative intent] from the plain meaning of the words chosen.”)). This

general rule applies unless enforcing the plain language of the statute as written

would produce absurd results. Id. Therefore, our practice when construing a

statute is to recognize that the words the legislature chooses should be the

surest guide to legislative intent. Id. (construing in summary judgment context

the statutory exclusive remedy defense set forth in the labor code); see also

Tex. Gov’t Code Ann. § 311.002(1) (Vernon 2005) (stating that the Code

Construction Act applies to . . . “each code enacted by the 60th or a

subsequent legislature as part of the state’s continuing statutory revision

program”); Act of April 30, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993 Tex.

Gen. Laws 583, 623 (recodifying defense for reliance on advisory opinion from

Tex. Rev. Civ. Stats. Ann. art. 6252-9d.1, § 1.30(a)) (current version at Tex.

Gov’t Code Ann. § 571.097 (Vernon 2004)).

      With these principles in mind, we examine the words of section

571.097’s reasonable reliance defense. By the plain meaning of the words the

legislature chose to utilize in section 571.097, the legislature created a defense

                                        9
to prosecution or to imposition of a civil penalty when a person reasonably

relies on a written advisory opinion of the TEC. See Tex. Gov’t Code Ann.

§ 571.097. The plain terms of the statute indicate that reliance is reasonable

when (1) the written opinion relates to the provision of the law the person is

alleged to have violated, (2) the written opinion relates a fact situation

substantially similar to the fact situation in which the person is involved, or (3)

both. See Entergy, 282 S.W.3d at 437–38 (construing language of statutory

defense in summary judgment context).

      This construction of the plain language of section 571.097 is consistent

with the stated purpose of an advisory opinion, which is to provide a defense

to those who reasonably rely on the opinion. See Op. Tex. Ethics Comm’n No.

147. Enforcing this construction of the plain language of section 571.097 does

not produce absurd results; to the contrary, the logical result of the statute is

that reliance on a written opinion of the TEC is reasonable when the written

opinion relates to the same provision of the law allegedly violated, when the

facts of the written opinion are substantially similar to the facts at issue, or

both. See Tex. Gov’t Code Ann. § 571.097.

      The TEC urges us to construe section 571.097’s “reasonable reliance”

requirement as equivalent to the reasonable reliance a plaintiff must prove to

establish promissory estoppel, equitable estoppel, a defendant’s apparent

                                        10
authority, or that a defendant must prove to establish a mistake of law defense

in a criminal case. See Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847,

865 (5th Cir. 1999) (promissory estoppel); McCormick Mktg., Inc. v. City of

Colorado City, 42 S.W.3d 162, 164–65 (Tex. App.—Eastland 2001, no pet.)

(equitable estoppel); Mobil Oil Corp. v. Frederick, 615 S.W.2d 323, 325 (Tex.

Civ. App.—Fort Worth 1981), aff’d in part, rev’d in part on other grounds, 621

S.W.2d 595 (Tex. 1981) (defendant’s apparent authority); Harrison v. State,

No. 02-07-00007-CR, 2007 WL 4292425, *5–6 (Tex. App.—Fort Worth Dec.

6, 2007, pet. ref’d) (not designated for publication) (mistake of law in defense

in criminal case). Contrary to these common law notions of reasonable reliance

and to the penal code provision dealing with the mistake of law defense,

government code section 571.097 expressly sets out when reliance on a TEC

opinion is reasonable, and that is when the TEC’s written opinion relates to the

provision of the law the person is alleged to have violated, the written opinion

relates a fact situation substantially similar to the fact situation in which the

person is involved, or both. Tex. Gov’t Code Ann. § 571.097.

      We next examine the summary judgment evidence to determine whether

Goodman conclusively established these elements of his reasonable reliance

affirmative defense.




                                       11
B.    The Summary Judgment Evidence Before the Trial Court

      In a trial de novo from a TEC final order, “[t]he reviewing trial court shall

try all issues of fact and law in the manner applicable to other civil suits” and

“may not admit in evidence the fact of prior action by the [TEC] or the nature

of that action.” See Tex. Gov’t Code Ann. § 571.133(d) (Vernon Supp. 2009).

Although Goodman filed his suit on April 10, 2008, the parties did not engage

in written discovery, and no depositions were taken. Thus, no such evidence

was available for use as summary judgment evidence.

      Goodman attached seventeen exhibits to his December 11, 2008 motion

for summary judgment, including his own affidavit, a certified copy of Advisory

Opinion 319, and various documents concerning the purchase of the properties

at issue, the transfer of the properties to his wife, and the partition

agreements. 4 As previously mentioned, the TEC filed as controverting summary



      4
       … Thus, the summary judgment evidence before the trial court consisted
of the following filed by Goodman:

Exhibit A: Affidavit of Toby Goodman and Attached Exhibits:
      A-1. A certified copy of Texas Ethics Commission Ethics Advisory
            Opinion 319.
      A-2. Special Warranty Deed dated February 19, 1999.
      A-3. Partition Agreement dated February 22, 1999.
      A-4. Travis County Tax and Appraisal Statements.
      A-5. Special Warranty Deed dated October 23, 2003, and made
            effective October 31, 2003.
      A-6. General Warranty Deed dated March 26, 2004.

                                       12
judgment evidence only a short, one-page affidavit of a TEC staff attorney who

swore that he had “found no document or correspondence to, from, or

concerning Mr. Goodman that indicates that Mr. Goodman contacted Texas

Ethics Commission staff or a member of the Texas Ethics Commission in 1999

to discuss Advisory Opinion 319, a Partition Agreement, or a Special Warranty

Deed.”     On appeal, both parties agree that Goodman’s purported verbal

communications with the TEC are not relevant because section 571.097’s

reasonable reliance defense is predicated on reasonable reliance on a written

advisory opinion issued by the TEC. Thus, because the TEC’s only summary

judgment    evidence   simply   controverts   the   existence   of   any   verbal

communications between Goodman and the TEC—and this evidence is not

relevant to any reliance by Goodman on written Advisory Opinion 319—the TEC

filed no relevant controverting summary judgment evidence. 5


      A-7. Promissory Note dated March 26, 2004.
      A-8. Deed of Trust dated March 26, 2004
      A-9. Special Warranty Deed dated March 27, 2004.
      A-10. Partition Agreement dated March 27, 2004.
      A-11. Williamson County Tax and Appraisal Statements.
Exhibit B: Affidavit of Robert Martin, Ph.D.
Exhibit C: Texas Ethics Commission Rules, Ch.12-A § 12.5.
Exhibit D: Sworn Complaint Before Texas Ethics Commission.
Exhibit E: Texas Ethics Commission Final Order.
Exhibit F: Texas Ethics Commission Letter dated March 11, 2008.
      5
         … The TEC attempts to rely on some of the factual statements set forth
in its final order; Goodman attached that order to his summary judgment motion

                                      13
C.    Goodman’s Uncontroverted Summary Judgment Evidence Conclusively
Establishes the Reasonable Reliance Affirmative Defense

      1.     TEC’s allegations against Goodman

      The TEC alleged that Goodman violated election code section 253.035

and the then-applicable version of section 253.038. Section 253.035 prohibits

a person who accepts a political contribution as an officeholder from converting

the contribution to personal use. Tex. Elec. Code Ann. § 253.035(a) (Vernon

2003). “Personal use” is defined as “a use that primarily furthers individual or

family purposes not connected with the performance of duties or activities as

a . . . holder of a public office.” Id. § 253.035(d).       But, “personal use” is

expressly defined not to include

      payments made to defray ordinary and necessary expenses incurred
      in connection with activities as a candidate or in connection with
      the performance of duties or activities as a public officeholder,
      including payment of rent, utility, and other reasonable housing or
      household expenses incurred in maintaining a residence in Travis
      County by members of the legislature who do not ordinarily reside
      in Travis County, but excluding payments prohibited under Section
      253.038.




as summary judgment evidence. By law, however, the factual statements in
the final order are no evidence in Goodman’s trial court suit. See Tex. Gov’t
Code Ann. § 571.133(d) (providing that in a trial de novo from a TEC final
order, the trial court “shall try all issues of fact and law in the manner applicable
to other civil suits” and “may not admit in evidence the fact of prior action by
the [TEC] or the nature of that action” except to establish trial court jurisdiction
over the suit) (emphasis added).

                                         14
Id. At the time, election code section 253.038 prohibited an officeholder from

knowingly making or authorizing payment from a political contribution to

purchase real property or to pay the interest on or principal of a note for the

purchase of real property. See Act of May 27, 1991, 72nd Leg., R.S., ch. 304,

§ 5.07, 1991 Tex. Gen. Laws 1290, 1325 (amended 2007).

      2.    Summary Judgment Evidence on Elements of Reasonable Reliance
            Defense

      As set forth above, the reasonable reliance defense created by the

legislature requires that a person reasonably rely upon a written advisory

opinion of the TEC and explains that reliance is reasonable when the opinion

relates to the provision of the law that the person is alleged to have violated,

the opinion relates a fact situation substantially similar to the fact situation in

which the person is involved, or both. See Tex. Gov’t Code Ann. § 571.097.

            a.     Reliance

      Concerning the first element, Goodman’s affidavit affirmatively swears

that he relied on Advisory Opinion 319 in executing the special warranty deed

conveying his interest in the Travis County condominium at issue to his wife,

in executing the partition agreement making the condominium her separate

property, in executing the special warranty deed conveying his interest in the

Cedar Park home to his wife, and in executing the partition agreement making



                                        15
the Cedar Park home her separate property.      Goodman’s affidavit further

provides that “[f]rom 1999 until September 2005, and in reliance on the

Opinion, I made rental payments to my wife in various amounts from funds on

deposit in the officeholder/campaign account to pay rent, maintenance fees,

household expenses, and housing costs as I do not ordinarily reside in Travis

County, Texas.”

     Goodman’s testimony that he relied upon Advisory Opinion 319 is

uncontradicted, clear, direct and positive, and free from inaccuracies and

circumstances tending to cast suspicion on it.       See, e.g., Ragsdale v.

Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). Indeed, the

TEC does not dispute that Goodman relied upon Advisory Opinion 319; rather,

the TEC contends that “in this case there are genuine issues of fact as to

whether Goodman’s reliance on EAO 319 was reasonable.”         Based on the

summary judgment evidence in the record, Goodman conclusively established

that he relied upon Advisory Opinion 319.           We next examine the

reasonableness of Goodman’s reliance.




                                     16
             b.   Reasonableness of Reliance 6

      Concerning the second element of the affirmative defense, the

reasonableness    of   reliance,   Goodman’s   summary     judgment   evidence

conclusively established—via the certified copy of Advisory Opinion 319

attached to his summary judgment motion—that Advisory Opinion 319 relates

specifically to election code section 253.035(a) and to former section

253.038(a), the same provisions of the law that Goodman was alleged to have

violated.7   See Tex. Gov’t Code Ann. § 571.097; Tex. Elec. Code Ann.

§ 253.035(a); Act of May 27, 1991, 72nd Leg., R.S., ch. 304, § 5.07, 1991

Tex. Gen. Laws 1290, 1325 (amended 2007) (current version at Tex. Elec.

Code Ann. §253.038(a-1)(1)).

      We next examine whether Goodman’s summary judgment evidence

conclusively established that his reliance was reasonable because Advisory



      6
       … As previously mentioned, the TEC cites a number of “reasonable
reliance” cases from other areas of the law. We decline to apply those cases’
reasonable reliance analysis here because, as set forth above, government code
section 571.097 itself dictates when reliance on a written TEC advisory opinion
is reasonable. See Tex. Gov’t Code Ann. § 571.097.
      7
        … Advisory Opinion 319 states, “There are two issues . . . : whether
such payments constitute a conversion of political contributions to personal use
in violation of section 253.035 of the Election Code and whether such
payments constitute a use of political contributions to purchase real estate in
violation of section 253.038 of the Election Code,” which are the exact
provisions of the election code that the TEC alleged Goodman had violated.

                                       17
Opinion 319 relates “to a fact situation that is substantially similar to the fact

situation in which the person [Goodman] is involved.” See Tex. Gov’t Code

Ann. § 571.097. This brings us to the heart of the TEC’s argument in this

appeal. The TEC argues that Goodman’s reliance on Advisory Opinion 319 was

not reasonable because Advisory Opinion 319 does not relate to a fact situation

that is similar to Goodman’s.     The TEC points out two factual differences

between the situation addressed in Advisory Opinion 319 and Goodman’s

situation. First, the TEC points out that Goodman signed a note on the Travis

County condominium and, subsequently, on the Cedar Park home and that this

fact distinguishes Goodman’s situation from the situation presented in Advisory

Opinion 319. Second, the TEC claims that Advisory Opinion 319 addressed a

legislator’s rental of his spouse’s separate property located in Travis County and

the fact that the Cedar Park home rented by Goodman was across the Travis

County line distinguishes Goodman’s situation from the situation presented in

Advisory Opinion 319.

      We first note that the reasonable reliance defense promulgated by the

legislature does not authorize an officeholder or candidate to rely on advisory

opinions only when the opinion presents facts identical to those in which the

person being prosecuted by the TEC is involved. Rather, the legislature chose

to create a defense when the TEC advisory opinion relates “to a fact situation

                                       18
that is substantially similar to the fact situation in which the person is

involved.”   See Tex. Gov’t Code Ann. § 571.097 (emphasis added).           We

examine Advisory Opinion 319 to determine whether Goodman’s summary

judgment evidence establishing that he signed a note on the Travis County

condominium and the Cedar Park house make his situation not substantially

similar to the situation in that opinion.

      The TEC argues that because Goodman remained liable on the notes he

signed on the Travis County condominium and the Cedar Park home, he

“retained a financial interest in the properties because each payment that he

made to his wife as ‘rent’ ultimately benefitted him and his liability on the

promissory notes. Accordingly, because Goodman remained liable for the debt,

the use of political contributions as rent directly benefitted him.” The problem

with the TEC’s argument is that the TEC submitted no controverting summary

judgment evidence in the trial court. No summary judgment evidence exists in

the record establishing how Goodman’s wife used the rent payments he made

to her for rental of her separate property. The summary judgment evidence

conclusively establishes that Goodman used political contributions to pay rent

to his wife for the rental of her separate property, not that he used political

contributions to make payments on a note.




                                        19
      More importantly, nothing in Advisory Opinion 319 indicates that the rent

paid by the legislator to rent his wife’s separate property was not used by the

wife to discharge a joint obligation of the couple for the purchase of the rental

property or other real property, such as the couple’s home. Instead, Advisory

Opinion 319 explains and concludes:

      [T]he personal-use restriction in section 253.035 of the Election
      Code does not prohibit a legislator from using political contributions
      to pay his spouse fair market value for the use of the spouse’s
      assets for officeholder purposes, it has been suggested that the
      payments at issue here are prohibited under section 253.038 of the
      Election Code, which prohibits the use of political contributions to
      purchase real property or to pay the interest on or principal of a
      note for the purchase of real estate. [Footnote omitted.]

      The real property in question here is the separate property of the
      legislator’s spouse. In Texas a married person has the sole
      management, disposition, and control over his or her separate
      property. Tex. Const. art. XVI, § 15; Fam. Code § 5.21. A man
      who pays rent to his spouse for the use of real property does not
      thereby acquire or “purchase” an interest in that property.
      Consequently, a legislator’s use of political contributions to make
      a rental payment to his spouse for the use of her separate rental
      property does not constitute a payment to purchase real property
      and does not violate section 253.038 of the Election Code.

Op. Tex. Ethics Comm’n No. 319 (emphasis added). And finally, Advisory

Opinion 319 summarizes its holding that a legislator’s use of political

contributions to make a rental payment to his spouse for the use of her

separate property “does not constitute a payment to purchase real property and

does not violate section 253.038 of the Election Code. Nor is such a payment

                                       20
a conversion to personal use as long as the payment does not exceed the fair

market value of the use of the property.” We cannot agree with the TEC that

the fact situation presented by Advisory Opinion 319 is not substantially similar

to the fact situation in which Goodman is involved.        To the contrary, the

summary judgment evidence submitted by Goodman conclusively establishes

that his situation is substantially similar to the situation presented and

addressed in Advisory Opinion 319.

      Next, the TEC argues that Advisory Opinion 319 is not substantially

similar to Goodman’s situation because the rental property at issue in that

opinion was located in Travis County while Goodman’s Cedar Park home is

located just across the Travis County line in Williamson County. The TEC did

not raise this issue in the trial court as a basis for defeating Goodman’s

affirmative defense of reasonable reliance. Nonetheless, the TEC argues on

appeal that Advisory Opinion 319 is limited in application to situations involving

Travis County rental properties owned as separate property by a legislator’s

spouse and is not applicable to Williamson County rental properties owned as

separate property by a legislator’s spouse. The TEC argues that the situation

in Advisory Opinion 319 “implicated the ‘safe harbor’ provision of Texas

Election Code Section 253.035(d)(1), while Goodman’s payments on the

Williamson County property would not.” An examination of the “safe harbor”

                                       21
provision of the election code section at issue conclusively establishes that it

is not limited to residences in Travis County.

        The “safe harbor” provision referenced by the TEC provides, in pertinent

part:

        In this section, “personal use” means a use that primarily furthers
        individual or family purposes not connected with the performance
        of duties or activities as a candidate for or holder of a public office.
        The term does not include:

              (1) payments made to defray ordinary and necessary
              expenses incurred in connection with activities as a
              candidate or in connection with the performance of
              duties or activities as a public officeholder, including
              payment of rent, utility, and other reasonable housing
              or household expenses incurred in maintaining a
              residence in Travis County by members of the
              legislature who do not ordinarily reside in Travis
              County.

Tex. Elec. Code Ann. § 253.035(d) (emphasis added).              Applying the Code

Construction Act to this statute, it is fundamental that the word emphasized

above, “including,” is a “term[] of enlargement and not of limitation or exclusive

enumeration, and use of the term[] does not create a presumption that

components       not   expressed    are   excluded.”      Tex.   Gov’t   Code      Ann.

§ 311.005(13) (Vernon 2005); see also Osterberg v. Peca, 12 S.W.3d 31, 38

(Tex.) (applying Code Construction Act to provisions of election code), cert.

denied, 530 U.S. 1244 (2000). Thus, we cannot presume—and in fact we are



                                          22
expressly prohibited by statute from presuming—that by specifically listing

payment of rent, utility, and other reasonable housing expenses incurred in

maintaining a residence in Travis County, the legislature intended to exclude

payment of such expenses incurred in maintaining a residence in adjoining

Williamson County. See id. Accordingly, as a matter of law, the distinction

that the TEC attempts to draw between Travis County rental property owned

as separate property by a legislator’s spouse in Advisory Opinion 319 and the

Williamson County rental properties owned as separate property by Goodman’s

wife is nonexistent.

      Because the summary judgment evidence in the record before us

conclusively establishes each element of Goodman’s affirmative defense of

reasonable reliance on Advisory Opinion 319, we overrule the TEC’s sole issue

on appeal.

                              VI. C ONCLUSION

      Having overruled the TEC’s sole issue on appeal, we affirm the trial

court’s judgment. See Tex. R. App. P. 43.2(a).




                                                 SUE WALKER
                                                 JUSTICE

PANEL: LIVINGSTON and WALKER, JJ.

DELIVERED: January 28, 2010

                                     23
