The Attorney General’s office said it will not represent the Texas Ethics Commission in a lawsuit brought by HD128 runoff candidate Briscoe Cain, who is suing to use official House video footage in campaign advertising. Section 306.005, Government Code prohibits use of “any audio or video materials produced by or under the direction” of the Legislature in political advertising.

The lawsuit, Cain v. Untermeyer, was filed on Wednesday in Harris Co.

According to the lawsuit, Cain wants to use videos from the 2013 and 2015 sessions relating to Rep. Wayne Smith’s (R-Baytown) votes on funding for additional aircraft to patrol the border, driver’s permits for non-U.S. citizens and legislative pensions. The lawsuit argues that laws governing the commercial use of legislatively produced audio/video materials (Section 306.006, Government Code) are “less burdensome than the political advertising restrictions.”

The court denied Cain’s request for a temporary restraining order and injunctive relief, which would have prohibited the Ethics Commission from enforcing Section 306.005, Government Code. A hearing has been set for May 13 in before 270th District Judge Brent Gamble. Early voting for the runoff election begins May 16.