Emergency Sections An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing, for no more than 120 days. The emergency action is renewable once for no more than 60 days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 1. ADMINISTRATION Part II. Texas Ethics Commission Chapter 10. Practice and Procedure Subchapter A. General Provisions Definitions and Scope 1 TAC sec.sec.10.1, 10.3, 10.5, 10.7, 10.9, 10.11, 10.13, 10.15, 10.17, 10.19 The Texas Ethics Commission adopts on an emergency basis new sec.sec.10.1, 10.3, 10.5, 10.7, 10.9, 10.11, 10.13, 10.15, 10.17, and 10.19, concerning definitions and scope. These sections set forth the guidelines, requirements, and procedures to be followed upon the filing of a sworn complaint with the Texas Ethics Commission. The commission has determined that adoption of these sections on an emergency basis is in the public interest and is necessary to comply with Texas Civil Statutes, Article 6252-9d.1, which require the commission to process complaints filed with the commission. Additionally, when a complaint is filed with the commission, the commission is required to forward copies of the hearing procedure to the complainant and the respondent, thus providing notice as to the hearing procedure. Complaints have been filed with the commission; therefore, it is imperative that the proposed sections be adopted on an emergency basis. The new sections are adopted under Texas Civil Statutes, Article 6252-9d.1, which provide the Texas Ethics Commission with the authority to promulgate and adopt rules relating to the filing, processing, procedure, and resolution of sworn complaints filed with the commission alleging violations of laws, rules, and regulations administered by the commission. sec.10.1. Definitions and Scope of Chapter. (a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. (1) Act-Texas Civil Statutes, Article 6252-9d.1. (2) Administrative prosecutor-An attorney employed by the commission and designated by the executive director to prepare, present, and prove to the commission the violation alleged in a sworn complaint. (3) APTRA-The Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. (4) Commission-The Texas Ethics Commission. (5) Complainant-A person who files a sworn complaint with the commission . (6) Hearing-A proceeding at a preliminary review, informal hearing, or formal hearing that is required by the Act and at which the legal rights, duties, and privileges of a party is to be determined. (7) Party or parties-The respondent and the administrative prosecutor. (8) Respondent-A person named in a sworn complaint filed by a complainant who is alleged to have violated a rule adopted by or a law administered and enforced by the commission. (b) This chapter applies to a sworn complaint filed with the commission. These rules are intended to supplement procedures required by the Act and shall be construed to insure the fair and expeditious determination of a sworn complaint. sec.10.3. Notice of Hearing. (a) Notice of a hearing under this chapter at which the respondent is entitled to be heard shall be given to each party no less than 10 days before the date of the Texas Ethics Commission Practice and Procedure hearing. (b) The notice required by subsection (a) of this section shall be hand- delivered, with receipt acknowledged, or mailed by certified mail, return receipt requested. A hand-delivered notice is effective when it is received by the respondent. Notice that is mailed is effective on the date it is deposited into an official repository of the U.S. Post Office, properly addressed to the respondent, with postage prepaid. (c) The notice required by subsection (a) of this section must include: (1) a statement of the date, time, place, and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which the hearing is to be held; (3) a reference to the particular sections of the statutes and rules involved; and (4) a short and plain statement of the matters asserted. (d) A party may waive notice by filing a written waiver with the commission. sec.10.5. Appointment of Administrative Law Judge. The commission may refer a sworn complaint to an administrative law judge at the Office of Administrative Hearings to develop findings of fact, conclusions of law, and a proposal for decision. sec.10.7. Record in Sworn Complaint Proceeding. (a) The record in a sworn complaint case shall include: (1) all pleadings, motions, intermediate rulings, and briefs; (2) evidence considered or admitted; (3) a statement of matters officially noticed; (4) questions and offers of proof, objections, and rulings on them; (5) proposed findings and exceptions; (6) any decision, opinion, or report by the commission or administrative law judge presiding over the hearing; and (7) all staff memoranda or data submitted to or considered by the commission, the administrative law judge, or members of the agency who are involved in making the decision. (b) Proceedings before the commission or an administrative law judge shall be recorded on audio tape. The audio tape of a proceeding shall be transcribed, and a copy of the transcript made available to respondent if requested by the commission. (c) Findings of fact must be based exclusively on the evidence and on matters officially noticed. sec.10.9. Conduct of Hearings. (a) The rules of evidence and privilege as applied in non-jury civil cases in the district courts of this state shall be followed in the resolution of a sworn complaint, except that evidence not reasonably susceptible to proof under those rules may be admitted if of the type commonly relied upon by reasonably prudent people. (b) In connection with a sworn complaint, the commission may swear witnesses and take their testimony under oath. (c) In a hearing or other type of resolution of a sworn complaint, a party may conduct cross-examination or other types of rebuttal argument. (d) With notice to the parties, the commission or its delegate may take official notice of all facts judicially cognizable or generally recognized by the commission and its staff in the exercise of its authority. (e) In the resolution of a sworn complaint, a party is entitled to assistance of counsel retained by that party. sec.10.11. Discovery. (a) After accepting jurisdiction, upon motion of any party, and upon notice to all other parties, the commission may order any party: (1) to produce and permit the inspection and reproduction by or on behalf of the moving party any tangible thing not privileged that constitutes or contains or is reasonably presumed to lead to the discovery of evidence material to any matter involved in the sworn complaint; and (2) to permit entry upon designated land or other property in the party's possession or control for the purposes of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon that may be material to any matter involved in the sworn complaint. (b) The order shall specify the date, time, place, and manner for the execution of the order. sec.10.13. Decision on a Sworn Complaint. (a) By agreement of the parties, a proposed final disposition of a sworn complaint may be presented to the commission. (b) By the written consent of the parties, the commission may consider a sworn complaint at the preliminary review or informal hearing stage without a hearing and may communicate with the parties by mail or telephone. Either party may revoke consent for proceeding without a hearing at any time before the commission announces its final decision. (c) A decision on a sworn complaint reached before a formal hearing is initiated shall be in writing. (d) Any resolution of a sworn complaint stemming from alternative methods or statutorily prescribed proceedings is a final decision for purposes of appeal. (e) When the commission has appointed an administrative law judge, the decision of the commission shall comply with the procedural requirements of APTRA, sec.15, which is hereby incorporated by reference into these rules. sec.10.15. Prehearing Conference. (a) When appropriate, the commission or its delegate may hold a prehearing conference to formulate recommendations to the commission on matters preliminary to the hearing. (b) A prehearing conference may be convened to address the following matters: (1) issuance of subpoenas; (2) factual and legal issues; (3) stipulations; (4) requests for official notice; (5) identification and exchange of documentary evidence; (6) admissibility of evidence; (7) identification and qualification of witnesses; (8) motions in limine and other motions; (9) discovery disputes; (10) order of presentation; (11) scheduling; (12) settlement conferences; and (13) such other matters as will promote the prompt resolution of the sworn complaint. sec.10.17. Jurisdiction. (a) By record vote of at least six members, the commission shall determine its jurisdiction to hear a sworn complaint. (b) The commission will not consider a complaint or vote to investigate any matter that is alleged to be a violation of a law that is not administered and enforced by the commission. (c) The commission's consideration of and decision on its jurisdiction to consider a sworn complaint is not subject to Texas Civil Statutes, Article 6252- 17 (the Open Meetings Act) or Article 6252-17a (the Open Records Act). (d) A vote to decide jurisdiction under this section may be taken by the executive director individually polling the commissioners, by conference call, or at a meeting of the commissioners. The executive director shall record each commissioner's vote on the commission's jurisdiction and shall file a record of the vote with the sworn complaint file maintained by the commission. sec.10.19. Notice of Jurisdiction. Notice of the decision by the commission on its jurisdiction shall be given to the complainant and the respondent in accordance with the Act, sec.1.17(d). Issued in Austin, Texas, on June 4, 1992. TRD-9208079 Jim Mathieson Assistant General Counsel Texas Ethics Commission Effective date: June 11, 1992 Expiration date: October 9, 1992 For further information, please call: (512) 463-5800 Preliminary Hearing 1 TAC sec.10.31 The Texas Ethics Commission adopts on an emergency basis new sec.10.31, concerning preliminary hearing. This section sets forth the preliminary review process initiated upon the filing of a sworn complaint with the Texas Ethics Commission. The commission has determined that adoption of this section on an emergency basis is in the public interest and is necessary to comply with Texas Civil Statutes, Article 6252-9d.1, which requires the commission to process complaints filed with it. Additionally, when a complaint is filed with the commission, the commission is required to forward copies of the hearing procedure to the complainant and the respondent, thus providing notice as to the hearing procedure. Complaints have been filed with the commission; therefore; it is imperative that the proposed section be adopted on an emergency basis. The new section is adopted under Texas Civil Statutes, Article 6252-9d.1, which provide the Texas Ethics Commission with the authority to promulgate and adopt rules relating to the filing, processing, procedure, and resolution of sworn complaints filed with the commission alleging violations of laws, rules, and regulations administered by the commission. sec.10.31. Preliminary Review. (a) A hearing to conduct the commission's preliminary review of a sworn complaint shall be scheduled no earlier than 10 days after a notice of jurisdiction is given to the parties. (b) A respondent may contest the commission's jurisdiction at the preliminary review hearing. (c) A hearing to conduct the commission's preliminary review is not subject to Texas Civil Statutes, Article 6252-17 (the Open Meetings Act) or Article 6252- 17a (the Open Records Act). Issued in Austin, Texas, on June 4, 1992. TRD-9208084 Jim Mathieson Assistant General Counsel Texas Ethics Commission Effective date: June 11, 1992 Expiration date: October 9, 1992 For further information, please call: (512) 463-5800