Part 2.
TEXAS ETHICS COMMISSION
Chapter 12.
SWORN COMPLAINTS
The Texas Ethics Commission proposes repeals to §12.1, §12.3, §12.17, §12.27, §12.31, §12.33, §12.37, §12.39, §12.51, §12.55, §12.63, §12.65, §12.69, §12.71, §12.81, §12.89, §12.101, §12.103, §12.105, §12.111, §12.113, §12.115, §12.117, §12.121
and §12.123, the amendments to §12.5, §12.7, §12.9, §12.11, §12.13, §12.15, §12.19, §12.21, §12.23, §12.25, §12.29, §12.35, §12.53, §12.57, §12.59, §12.61, §12.67, §12.83, §12.85, §12.87, §12.119,
and new §12.6 and §12.52.
The proposed repeal of §12.1 would repeal the rule defining "complainant"
and "respondent." This rule is unnecessary because these definitions are set
out in section 571.002(2) and 571.002(4) of the Government Code.
The proposed repeal of §12.3 would repeal the rule relating to defining
the scope of complaint proceedings before the Ethics Commission. This rule
is unnecessary because it provides no guidance or clarification.
The proposed repeal of §12.17 would repeal the rule relating to the
agreed settlement of a complaint. This rule is unnecessary because section
571.121 of the Government Code gives the Ethics Commission authority to agree
to the settlement of issues.
The proposed repeal of §12.27 would repeal the rule relating to the
extension of deadlines for action on a complaint. This rule is unnecessary
because it duplicates section 571.136 of the Government Code.
The proposed repeal of §12.31 would repeal the rule relating to the
referral of a complaint to an administrative law judge. This rule is unnecessary
because chapter 2003 and section 2001.058 of the Government Code govern the
circumstances under which the Ethics Commission may refer a matter to an administrative
law judge.
The proposed repeal of §12.33 would repeal the rule relating to the
application of the Administrative Procedure Act to complaint proceedings.
This rule is invalid because it conflicts with section 571.139 of the Government
Code, which provides that the Administrative Procedure Act applies only to
the formal hearing stage of the complaint process.
The proposed repeal of §12.37 would repeal the rule relating to the
assessment of sanctions. This rule is unnecessary because it duplicates the
content of sections 571.172, 571.173, 571.174, 571.175, 571.176, and 571.177
of the Government Code.
The proposed repeal of §12.39 would repeal the rule relating to a
criminal referral at the conclusion of a formal hearing. H.B. 1606, 78th Legislature,
Regular Session, amended section 571.171 of the Government Code to set out
the circumstances under which the Ethics Commission may make a referral to
a prosecuting attorney. That amendment supersedes subsection (a) of this rule.
Subsection (b) duplicates section 571.134 of the Government Code.
The proposed repeal of §12.51 would repeal the rule relating to the
filing date of a complaint. The file date is different for different purposes,
which is clarified by proposed rules §12.5(c) and §12.6.
The proposed repeal of §12.55 would repeal the rule relating to the
filing of a complaint that does not satisfy the statutory requirements. This
rule is unnecessary because section 571.123 of the Government Code sets out
the procedure for responding to a complaint that does not satisfy the statutory
requirements.
The proposed repeal of §12.63 would repeal the rule relating to the
Ethics Commission's response to a complaint. This rule is inconsistent with
section 571.123 of the Government Code, as amended by H.B. 1606, 78th Legislature,
Regular Session, and with section 571.1241 of the Government Code, which was
added by H.B. 1606, 78th Legislature, Regular Session.
The proposed repeal of §12.65 would repeal the rule relating to notification
of the status of a pending complaint. This provision is unnecessary because
it duplicates section 571.1351(c) of the Government Code.
The proposed repeal of §12.69 would repeal the rule relating to the
Ethic's Commission's acceptance of jurisdiction in a complaint. This rule
is inconsistent with section 571.124 of the Government Code, as amended by
H.B. 1606, 78th Legislature, Regular Session, and with section 571.1241 of
the Government Code, which was added by H.B. 1606, 78th Legislature, Regular
Session.
The proposed repeal of §12.71 would repeal the rule relating to notification
of the Ethics Commission's acceptance or refusal of jurisdiction. This rule
is inconsistent with section 571.124 of the Government Code, as amended by
H.B. 1606, 78th Legislature, Regular Session, and with section 571.1241 of
the Government Code, which was added by H.B. 1606, 78th Legislature, Regular
Session.
The proposed repeal of §12.81 would repeal the rule relating to initial
investigation procedures. This rule is inconsistent with section 571.124 of
the Government Code, as amended by H.B. 1606, 78th Legislature, Regular Session,
and with section 571.1241 of the Government Code, which was added by H.B.
1606, 78th Legislature, Regular Session.
The proposed repeal of §12.89 would repeal the rule relating to the
notice of the Ethics Commission's action at the end of the preliminary review
process. This provision is inconsistent with section 571.126 of the Government
Code, as amended by H.B. 1606, 78th Legislature, Regular Session.
The proposed repeal of §12.101, §12.103, and §12.105 would
repeal the rules relating to an informal hearing. This subchapter is unnecessary
because H.B. 1606, 78th Legislature, Regular Session, eliminated the informal
hearing from the complaint process.
The proposed repeal of §12.111 would repeal the rule relating to the
standard of proof at a formal hearing. H.B. 1606, 78th Legislature, Regular
Session, amended section 571.129 of the Government Code to change the standard
of proof at a formal hearing from "clear and convincing evidence" to a "preponderance
of the evidence." That amendment supersedes this rule.
The proposed repeal of §12.113 would repeal the rule relating to procedures
in connection with a formal hearing. This rule is unnecessary because it duplicates
section 571.131 of the Government Code.
The proposed repeal of §12.115 would repeal the rule relating to the
disclosure of information about subpoenaed witnesses. Subsection (a) duplicates
section 571.130(b) of the Government Code.
The proposed repeal of §12.117 would repeal the rule relating to certain
requests to appear at a formal hearing. This rule is unnecessary because section
571.130 of the Government Code governs such requests.
The proposed repeal of §12.121 would repeal the rule relating to the
notice of a resolution of a formal hearing. This rule is unnecessary because
it duplicates section 571.132 of the Government Code.
The proposed repeal of §12.123 would repeal the rule relating to the
availability of the Ethics Commission's decision and written report after
a formal hearing. This provision is unnecessary because it duplicates section
571.132(c)(2) of the Government Code.
The proposed amendment to §12.5 deletes the incorrect description
of the Ethics Commission's authority. Moreover, it is not necessary to describe
the Ethics Commission's authority in a rule because it is clearly set out
in section 571.061 of the Government Code. Subsection (a)(2) of the current
rule is unnecessary because it no longer covers any situation that is not
covered by other parts of the rule. The proposed rule makes clear that the
rule applies to a matter initiated on the Ethics Commission's motion as well
as to a complaint filed by a third party. The proposed amendment defines "file
date" for purposes of the Ethics Commission's authority to consider a complaint
as the date the complainant relinquishes control of the complaint. (Proposed
new §12.6 defines "file date" for purposes of the deadline for responding
to a complaint.) Also, the proposed amendment makes clear that a non-complying
complaint does not toll the running of the statute of limitations.
The proposed amendment to §12.7 deletes portions of the rule that
are unnecessary because they duplicate section 571.140 of the Government Code.
To be consistent with chapter 571 of the Government Code, the term "complaint"
replaces "sworn complaint."
The proposed amendment to §12.9 deletes the reference to §12.105,
because the Ethics Commission has proposed the deletion of §12.105. To
be consistent with chapter 571 of the Government Code, the term "complaint"
replaces "sworn complaint."
The proposed amendment to §12.11 replaces the term "sworn complaint"
with "complaint" to be consistent with chapter 571 of the Government Code.
The proposed amendment to §12.13 replaces the term "sworn complaint"
with "complaint" to be consistent with chapter 571 of the Government Code.
The proposed amendment to §12.15 deletes current subsection (a) because
it duplicates section 571.138 of the Government Code, which provides that
a complainant is not a party to a complaint.
The proposed amendment to §12.19 deletes current subsection (a)(3)
because it adds nothing to current subsection (a)(1). The proposed amendment
also deletes current subsection (b) because §12.19 does not purport to
limit any right other than the right to rely on an oral agreement. To be consistent
with chapter 571 of the Government Code, the term "complaint" replaces "sworn
complaint."
The proposed amendment to §12.21 deletes a part of current subsection
(a) that duplicates section 571.032 of the Government Code. The proposed amendment
also deletes a part of current subsection (b) that is inconsistent with current
law. For purposes of section 571.1242 of the Government Code, notices to a
respondent are effective when received. Also, the proposed amendment deletes
current subsection (d) because the five-day deadline is provided for in sections
571.123, 571.124, 571.1241, 571.126, and 571.132 of the Government Code.
The proposed amendment to §12.23 makes the rule more precise.
The proposed amendment to §12.25 clarifies the rule because, taken
literally, the current rule would allow a respondent to revoke a waiver of
a preliminary review hearing after later stages of the complaint process had
been completed.
The proposed amendment to §12.29 relates to statutory changes to the
Ethics Commission's authority to issue subpoenas. H.B. 1606, 78th Legislature,
Regular Session, amended section 571.137 of the Government Code, which sets
out the Ethics Commission's authority to issue subpoenas in connection with
a formal hearing.
The proposed amendment to §12.35 deletes portions that are either
unnecessary or duplicative of section 571.176 of the Government Code. To be
consistent with chapter 571 of the Government Code, the term "complaint" replaces
"sworn complaint."
The proposed amendment to §12.53 makes clear that a matter initiated
by the Ethics Commission is a complaint for all statutory purposes, not just
for purposes of the Ethics Commission rules. To be consistent with chapter
571 of the Government Code, the term "complaint" replaces "sworn complaint."
The proposed amendment to §12.57 deletes language that duplicates
section 571.122 of the Government Code. To be consistent with chapter 571
of the Government Code, the term "complaint" replaces "sworn complaint."
The proposed amendment to §12.59 makes the rule more precise than
the current rule. To be consistent with chapter 571 of the Government Code,
the term "complaint" replaces "sworn complaint."
The proposed amendment to §12.61 deletes unnecessary language.
The proposed amendment to §12.67 makes the amended rule more precise.
The proposed amendment to §12.83 reflects the addition of section
571.1244 of the Government Code by H.B. 1606, 78th Legislature, Regular Session,
which requires the Ethics Commission to adopt procedures for the conduct of
preliminary reviews and preliminary review hearings. The proposed amendment
deletes current subsection (b) because it is inconsistent with section 571.1242
of the Government Code, which was added by H.B. 1606, 78th Legislature, Regular
Session.
The proposed amendment to §12.85 reflects changes made necessary by
section 571.1242 of the Government Code, which was added by H.B. 1606, 78th
Legislature, Regular Session.
The proposed amendment to §12.87 deletes provisions that are unnecessary
because they duplicate section 571.126 of the Government Code. The proposed
amendment also deletes the reference to an informal hearing, which is no longer
part of the complaint process. The proposed amendment provides for a resolution
in case the Ethics Commission is deadlocked after a preliminary review hearing.
The proposed amendment to §12.119 deletes language that duplicates
section 571.132 of the Government Code. The proposed amendment also prescribes
the resolution after a formal hearing if the Ethics Commission is unable to
reach either the five votes required to find that a violation has not occurred
or the six votes needed to find a violation. Chapter 571 of the Government
Code does not address this situation.
The new §12.6 defines the file date for purposes of section 571.123
of the Government Code.
The new §12.52 clarifies what constitutes a response for purposes
of section 571.1242 of the Government Code and sets out the consequences for
failure to respond.
Sarah Woelk, General Counsel, has determined that for each year of the
first five years the rules are in effect there would be no fiscal implication
to the state and no fiscal implication for local government as a result of
enforcing or administering the rules as proposed. Ms. Woelk has also determined
that these rules will have no local employment impact.
Ms. Woelk has also determined that for each year of the first five years
the rules are in effect, the anticipated public benefit will be clarification
of the rules that govern complaint proceedings.
Ms. Woelk has also determined there will be no direct adverse effect on
small businesses or micro-businesses because these rules do not regulate businesses.
Ms. Woelk has further determined that there are no economic costs to persons
required to comply with the rules or resulting from the repeals.
The Texas Ethics Commission invites comments on the proposed rules from
any member of the public. A written statement should be mailed or delivered
to Sarah Woelk, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070,
or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken
comments to the Ethics Commission concerning the proposed rules may do so
at any Ethics Commission meeting during the agenda item "Communication to
the Commission from the Public" and during the public comment period at a
Ethics Commission meeting when the Ethics Commission considers final adoption
of the proposed rules. Information concerning the date, time, and location
of Ethics Commission meetings is available by telephoning (512) 463-5800 or,
toll free, (800) 325-8506.
Subchapter A. GENERAL PROVISIONS AND PROCEDURES
1 TAC §§12.1, 12.3, 12.17, 12.27, 12.31, 12.33, 12.37, 12.39
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Ethics Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §12.1, §12.3, §12.17, §12.27, §12.31, §12.33, §12.37,
and §12.39 is proposed under Government Code, Chapter 571, Section 571.062,
which authorizes the Ethics Commission to adopt rules concerning the laws
administered and enforced by the Ethics Commission.
The proposed repeal of §12.1 affects section 571.002 of the Government
Code. The proposed repeal of §12.3 affects chapter 571 of the Government
Code. The proposed repeal of §12.17 affects section 571.121 of the Government
Code. The proposed repeal of §12.27 affects section 571.136 of the Government
Code. The proposed repeal of §12.31 affects section 2001.058 and chapter
2003 of the Government Code. The proposed repeal of §12.33 affects section
571.139 of the Government Code. The proposed repeal of §12.37 affects
section 571.172, 571.173, 571.174, 571.175, 571.176, and 571.177 of the Government
Code. The proposed repeal of §12.39 affects sections 571.134 and 571.171
of the Government Code.
§12.1.Definitions.
§12.3.Scope of Chapter.
§12.17.Agreed Disposition.
§12.27.Extension of Deadlines.
§12.31.Administrative Law Judge.
§12.33.Contested Case Procedures.
§12.37.Sanctions.
§12.39.Criminal Referral.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on March 5, 2004.
TRD-200401715
Sarah Woelk
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: April 18, 2004
For further information, please call: (512) 463-5800
1 TAC §§12.51, 12.55, 12.63, 12.65, 12.69, 12.71
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Ethics Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §12.51, §12.55, §12.63, §12.65, §12.69,
and §12.71 is proposed under Government Code, Chapter 571, Section 571.062,
which authorizes the Ethics Commission to adopt rules concerning the laws
administered and enforced by the Ethics Commission.
The proposed repeal of §12.51 affects sections 571.122 and 571.123
of the Government Code. The proposed repeal of §12.55 affects section
571.123 of the Government Code. The proposed repeal of §12.63 affects
sections 571.123 and 571.1241 of the Government Code. The proposed repeal
of §12.65 affects section 571.1351 of the Government Code. The proposed
repeal of §12.69 affects sections 571.124 and 571.1241 of the Government
Code. The proposed repeal of §12.71 affects sections 571.124 and 571.1241
of the Government Code.
§12.51.Filing with Commission.
§12.55.Attempted Sworn Complaint.
§12.63.Notice of Sworn Complaint.
§12.65.Status Reports on Pending Sworn Complaints.
§12.69.Vote To Consider a Sworn Complaint.
§12.71.Notice of Jurisdiction.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 5, 2004.
TRD-200401716
Sarah Woelk
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: April 18, 2004
For further information, please call: (512) 463-5800
1 TAC §12.81, §12.89
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Ethics Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §12.81 and §12.89 is proposed
under Government Code, Chapter 571, Section 571.062, which authorizes the
Ethics Commission to adopt rules concerning the laws administered and enforced
by the Ethics Commission. The proposed repeal of §12.81 affects sections
571.124 and 571.1241 of the Government Code. The proposed repeal of §12.89
affects section 571.126 of the Government Code.
§12.81.Initial Investigation.
§12.89.Notice of Informal Hearing or Dismissal.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 5, 2004.
TRD-200401720
Sarah Woelk
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: April 18, 2004
For further information, please call: (512) 463-5800
1 TAC §§12.101, 12.103, 12.105
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Ethics Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §12.101, §12.103, and §12.105
is proposed under Government Code, Chapter 571, Section 571.062, which authorizes
the Ethics Commission to adopt rules concerning the laws administered and
enforced by the Ethics Commission.
The proposed repeal of §12.101 affects chapter 571 of the Government
Code. The proposed repeal of §12.103 affects chapter 571 of the Government
Code. The proposed repeal of §12.105 affects chapter 571 of the Government
Code.
§12.101.Informal Hearing.
§12.103.Resolution after an Informal Hearing.
§12.105.Notice of Formal Hearing or Dismissal.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 5, 2004.
TRD-200401722
Sarah Woelk
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: April 18, 2004
For further information, please call: (512) 463-5800
1 TAC §§12.111, 12.113, 12.115, 12.117, 12.121, 12.123
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Texas Ethics Commission or in the Texas Register office, Room 245,
James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal of §12.111, §12.113, §12.115, §12.117, §12.121,
and §12.123 is proposed under Government Code, Chapter 571, Section 571.062,
which authorizes the Ethics Commission to adopt rules concerning the laws
administered and enforced by the Ethics Commission. The proposed repeal of §12.111
affects section 571.129 of the Government Code. The proposed repeal of §12.113
affects section 571.131 of the Government Code. The proposed repeal of §12.115
affects section 571.130 of the Government Code. The proposed repeal of §12.117
affects section 571.130 of the Government Code. The proposed repeal of §12.121
affects section 571.132 of the Government Code. The proposed repeal of §12.123
affects section 571.132 of the Government Code.
§12.111.Standard of Proof.
§12.113.Disclosure of Information.
§12.115.Nondisclosure of Subpoenaed Witnesses.
§12.117.Request to Appear.
§12.121.Notice of Resolution after Formal Hearing.
§12.123.Commission Report Available to the Public.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed
with the Office of the Secretary of State on March 5, 2004.
TRD-200401723
Sarah Woelk
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: April 18, 2004
For further information, please call: (512) 463-5800
1 TAC §§12.5 - 12.7, 12.9, 12.11, 12.13, 12.15, 12.19, 12.21, 12.23, 12.25, 12.29, 12.35
The amendments to §12.5, §12.7, §12.9, §12.11, §12.13, §12.15, §12.19, §12.21, §12.23, §12.25, §12.29, §12.35,
and new §12.6 are proposed under Government Code, Chapter 571, Section
571.062, which authorizes the Ethics Commission to adopt rules concerning
the laws administered and enforced by the Ethics Commission.
The proposed amendment to §12.5 affects section 571.061 of the Government
Code. The proposed new §12.6 affects section 571.123 of the Government
Code. The proposed amendment to §12.7 affects section 571.140 of the
Government Code. The proposed amendment to §12.9 affects sections 571.139
and 571.140 of the Government Code. The proposed amendment to §12.11
affects sections 571.029 and 571.030 of the Government Code. The proposed
amendment to §12.13 affects chapter 571, subsection E of the Government
Code. The proposed amendment to §12.15 affects section 571.138 of the
Government Code. The proposed amendment to §12.19 affects section 571.121
of the Government Code. The proposed amendment to §12.21 affects sections
571.032, 571.123, 571.124, 571.1241, 571.1242, 571.126, and 571.132 of the
Government Code. The proposed amendment to §12.23 affects sections 571.125,
571.126, 571.131, and 571.132 of the Government Code. The proposed amendment
to §12.25 affects sections 571.125, 571.126, 571.131, and 571.132 of
the Government Code. The proposed amendment to §12.29 affects section
571.137 of the Government Code. The proposed amendment to §12.35 affects
section 571.176 of the Government Code.
§12.5. Deadline for Filing a Complaint [
(a)
The commission
has no jurisdiction over
an alleged violation
[
[
[
(1)
[
(2)
[
(b)
For purposes of this section,
a complaint is filed on the date it is hand-delivered to the commission or
on the date that it is deposited in the mail or with a common or contract
carrier, properly addressed, with postage prepaid.
(c)
For purposes of this section,
a complaint is not filed unless it complies with the requirements of section
571.122 of the Government Code.
§12.6.File Date for Purposes of Commission Response Deadline.
For purposes of section 571.123 of the Government Code, the file date
for a complaint is the date the complaint is received at the agency office.
§12.7.Confidentiality.
(a)
[
[
(b)
[
[
[
[
§12.9.Compliance with Open Meetings Law and Open Records Law.
(a)
The Open Meetings Law
, chapter 551 of the Government
Code,
does not apply to a meeting or decision of the commission in connection
with a [
(b)
The Open Records Law
, chapter 552 of the Government
Code,
does not apply to information relating to a [
§12.11.Delegation to Executive Director.
Any duty or power of the commission relating to a [
§12.13.Representation by Counsel.
A respondent has the right to be represented by counsel retained by
the respondent in any proceeding of a [
§12.15. Appearance of Complainant at Hearing [
[
[
§12.19.Agreements To Be in Writing.
[
(1)
reduced to writing and signed by each person making the
stipulation or agreement, or
by
that person's authorized representative;
or
(2)
entered
[
[
[
§12.21.Notice.
(a)
A notice required to be sent to a complainant under
chapter 571 of the Government Code shall be sent to the address most recently
provided by the complainant.
[
(b)
A notice required to be sent to a respondent under
chapter 571 of the Government Code shall be sent to the address provided by
the complainant or to the address most recently provided by the respondent.
[
(c)
Notice of
[
(1) - (4)
(No change.)
[
(d)
[
(e)
A respondent or complainant
in a complaint may waive the right under section 571.032 of the Government
Code to receive written notices related to the complaint by registered or
certified mail, restricted delivery, return receipt requested, and may agree
to receive written notices related to the complaint by first class mail.
§12.23.Hearing in Respondent's Absence.
If a respondent fails to appear at a hearing [
§12.25.Waiver of Hearing.
A respondent may waive the right to a hearing.
[
§12.29.Subpoenas.
[
[
(a)
[
(b)
[
[
§12.35.Frivolous Complaint.
[
(a)
[
(b)
[
(1)
the timing of the [
(2)
the nature and type of any publicity surrounding the filing
of the [
(3)
the existence and nature of any relationship between the
respondent and the complainant before the complaint was filed;
(4)
if respondent is a candidate for election to office, the
existence and nature of any relationship between the complainant and any candidate
or group opposing the respondent;
(5)
any evidence that the complainant knew or reasonably should
have known that the allegations in the complaint were groundless; and
(6)
any evidence of the complainant's motives in filing the
complaint.
(c)
Notice of a show cause hearing
must be given at least 10 business days before the date of the hearing. Notice
shall be sent by registered or certified mail, restricted delivery, return
receipt requested.
(d)
Notice of an order to show cause [
(1) - (2)
(No change.)
(e)
Before making a determination that a [
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 5, 2004.
TRD-200401725
Sarah Woelk
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: April 18, 2004
For further information, please call: (512) 463-5800
1 TAC §§12.52, 12.53, 12.57, 12.59, 12.61, 12.67
The new §12.52 and the amendments to §12.53, §12.57, §12.59, §12.61,
and §12.67 are proposed under Government Code, Chapter 571, Section 571.062,
which authorizes the Ethics Commission to adopt rules concerning the laws
administered and enforced by the Ethics Commission.
The proposed new §12.52 affects section 571.1242 of the Government
Code. The proposed amendment to §12.53 affects section 571.124 of the
Government Code. The proposed amendment to §12.57 affects section 571.122
of the Government Code. The proposed amendment to §12.59 affects sections
571.122 and 571.123 of the Government Code. The proposed amendment to §12.61
affects sections 571.122 and 571.123 of the Government Code. The proposed
amendment to §12.67 affects section 571.123 of the Government Code.
§12.52.Response to Notice of Complaint.
(a)
The response required by section 571.1242 of the Government
Code must:
(1)
be in writing;
(2)
admit or deny the allegations set forth in the complaint;
and
(3)
be signed by the respondent.
(b)
If a respondent does not submit a response within the time
period prescribed by section 571.1242 of the Government Code, the commission
may issue an order imposing a civil penalty for failure to file a response.
(c)
If a respondent does not submit a response that satisfies
the requirements of subsection (a) of this section, the commission may issue
an order imposing a penalty for failure to file a complete response.
§12.53.Commission Initiated Complaint.
[
[
§12.57.Contents of a [
(a)
In addition to the contents set out in section 571.122
of the Government Code, a complaint must
[
(1)
the [
(2)
[
[
[
[
[
[
[
[
(b)
A complaint must include the
position and title of a respondent only if the alleged violation is related
to the position or title of the respondent.
[
[
§12.59. Description [
(a)
If a complaint does not include the specific rule
or provision of law alleged to have been violated, the complaint must clearly
and concisely describe facts that, if true, would constitute a violation of
a law administered and enforced by the commission.
[
(b)
A [
§12.61.Statement of Facts.
(a)
[
(b) - (c)
(No change.)
§12.67.Copies and Documents Provided by the Commission.
(a)
The executive director shall provide to a respondent
copies of all documents submitted with a complaint
[
[
(b)
[
[
(c)
[
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on March 5, 2004.
TRD-200401724
Sarah Woelk
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: April 18, 2004
For further information, please call: (512) 463-5800
Subchapter B. FILING AND INITIAL PROCESSING OF A COMPLAINT
Subchapter C. INVESTIGATION AND PRELIMINARY REVIEW
Subchapter D. INFORMAL HEARING
Subchapter E. FORMAL HEARING
Subchapter A. GENERAL PROVISIONS AND PROCEDURES Subject Matter of a Sworn Complaint ].
will not consider a complaint or vote to
investigate
]:
(1)
an allegation that a person
has violated any law other than the Government Code, Chapter 302 (concerning
Speaker of the House of Representatives), Chapter 303 (concerning Governor
for a Day and Speaker's Reunion Day Ceremonies), Chapter 305 (concerning Registration
of Lobbyists), Chapter 571 (concerning Texas Ethics Commission), Chapter 572
(concerning Personal Financial Disclosure, Standards of Conduct, and Conflict
of Interest), or Chapter 2004 (concerning Representation Before State Agencies);
Local Government Code, Chapter 159, Subchapter C, in connection with a county
judicial officer who elects to file a financial statement with the Ethics
Commission; Election Code, Title 15 (concerning Regulating Political Funds
and Campaigns); or a commission rule adopted to administer and enforce one
of these laws;]
(2)
an alleged violation that
occurred before January 1, 1992;]
(3)
] if the alleged violation is
also a criminal offense,
and if, at the time the complaint is filed or
at the time the commission would vote to initiate a preliminary review of
a matter, the allegation would be
[
an allegation
] barred from
criminal prosecution by operation of the applicable statute of limitations;
or
(4)
]
if the alleged violation
is not also a criminal offense and if the
[
for any other alleged
violation, an
] allegation
is
based on facts that occurred
more than three years before the date the [
sworn
] complaint is
filed
or the date the commission would vote to initiate a preliminary
review of a matter
.
Except as otherwise provided by this section, all
information relating to a sworn complaint known to or in the possession of
the commission is confidential.
] The commission and its employees shall
not communicate any information about a sworn complaint, including whether
or not a complaint has been filed, to any person other than the respondent,
the complainant, and a witness or potential witness identified by the respondent,
the complainant, or another witness or potential witness.
(b)
Information otherwise confidential
under this section may be disclosed by entering it into the record of a formal
hearing or a judicial proceeding.]
(c)
] Confidentiality under
section 571.140
[
subsection (a)
] of
the Government Code
[
this section
] may be waived only if the complainant and
each respondent named in the [
sworn
] complaint
provide
[
provides
] a verified, written waiver of confidentiality to the executive
director.
(d)
An order or decision issued
after a preliminary review or an informal hearing is not confidential under
this section if the commission makes the following affirmative findings in
the order or decision:]
(1)
the respondent violated the law; and]
(2)
the violation of law was not a technical or
de minimis violation.]
sworn
] complaint until written notice of a formal hearing
on the [
sworn
] complaint is sent to the respondent and complainant
[
under §12.105 of this title (relating to Notice of Formal Hearing
or Dismissal)
].
sworn
]
complaint until written notice of a formal hearing on the [
sworn
]
complaint is sent to the respondent and complainant [
under §12.105
of this title (relating to Notice of Formal Hearing or Dismissal)
].
sworn
]
complaint that does not require a commission vote is delegated to the executive
director.
sworn
] complaint.
Not a Party ].
(a)
The complainant is not a party
to a preliminary review, an informal hearing, or a formal hearing.]
(b)
]
The commission may grant a complainant the
opportunity to be heard at a hearing.
(a)
]
No stipulation or agreement with respect to
any matter in a [
sworn
] complaint shall be
effective
[
enforced
] unless it has been:
dictated
] into the record
during the course of a hearing
.
[
; or
]
(3)
incorporated in an order signed
by the person making the stipulation or agreement or that person's authorized
representative.]
(b)
This section does not limit
a person's right to waive or modify by stipulation or agreement a right or
privilege afforded by these sections or by law.]
When required by reference to this
section, a notice shall be hand-delivered, with receipt acknowledged, or mailed
by certified mail, restricted delivery, return receipt requested, to the recipient's
last known mailing address on file with the commission.
]
A hand-delivered notice is effective when it is received. Notice
that is mailed is effective on the date it is deposited into an official repository
of the United States Postal Service, properly addressed, with postage prepaid.
]
If the notice is for
] a
hearing [
, it
] must be given at least 10 business days before the
date of the hearing, and must include:
(d)
If the notice is of a commission
order or decision, the notice shall be given no later than five business days
after the date of the order or decision and shall include a copy of the order
or decision.]
(e)
] A person entitled to receive
notice may waive that right by filing a written waiver with the executive
director. [
That waiver may be withdrawn by written notice received by
the executive director no later than five business days before the next day
a notice is required under this chapter.
]
after notice of
the hearing was given pursuant to §12.21 of this title (relating to Notice)
], the commission may proceed in the respondent's absence
and may
find credible evidence of the violations alleged in the complaint and may
issue a final order imposing a civil penalty
[
and, where appropriate,
may decide against the respondent
].
The
commission may consider and act on a sworn complaint at the preliminary review
or informal hearing stage without a hearing if each affected respondent provides
a written waiver of his or her right to appear. A respondent may revoke consent
to act without a hearing given under this section at any time before the commission
announces a final disposition of the complaint.
]
(a)
The commission may subpoena
documentary evidence that is directly relevant to a sworn complaint in connection
with an informal or formal hearing only after it has set a date and time for
the hearing.]
(b)
The commission may subpoena
a witness in connection with a formal hearing only after it has set a date
and time for the hearing.]
(c)
] A subpoena
issued
under
section 571.137 of the Government Code
[
subsections (a) or (b) of
this section
] shall specify the date, time, place, and manner for execution
of the subpoena.
(d)
] A subpoena that requires a
person to
provide testimony
[
submit written testimony for
an informal or formal hearing, or to testify at a formal hearing
] shall
be served on that person at least 10 business days before the date the subpoena
is to be executed.
(e)
As provided by §12.115
of this title (relating to Nondisclosure of Subpoenaed Witnesses), the commission
may order that a person may not, except as specifically authorized by the
chairman, make public the name of a witness subpoenaed by the commission before
the date of that witness's scheduled appearance.]
(a)
For purposes of this section,
a "frivolous complaint" is a sworn complaint that is groundless and brought
in bad faith or groundless and brought for the purpose of harassment.]
(b)
] By a record vote of at least
six commissioners, the commission may order a complainant to show cause why
the commission should not determine that the complaint filed by the complainant
is a frivolous complaint.
(c)
] In deciding if a complaint
is frivolous, the commission will be guided by the Texas Rules of Civil Procedure,
Rule 13, and interpretations of that rule, and may also consider:
sworn
] complaint with respect
to when the facts supporting the alleged violation became known or should
have become known to the complainant, and with respect to the date of any
pending election in which the respondent is a candidate or is involved with
a candidacy, if any;
sworn
] complaint, and the degree of participation by the
complainant in publicizing the fact that a [
sworn
] complaint was
filed with the commission;
shall be given to
the complainant pursuant to §12.21 of this title (relating to Notice),
with a copy to the respondent, and
] shall include:
sworn
]
complaint is a frivolous complaint, the commission shall hold a hearing at
which the complainant may be heard and may be represented by counsel retained
by the complainant.
(f)
By a record vote of at least
six commissioners after the hearing under subsection (e) of this section,
the commission may determine that a complainant filed a frivolous complaint
and may impose a civil penalty against that complainant under §12.37
of this title (relating to Sanctions).]
Subchapter B. FILING AND INITIAL PROCESSING OF A COMPLAINT
(a)
The commission may initiate
a preliminary review of a matter within the jurisdiction of the commission
by a record vote of at least six members. The matter, including the names
of each respondent, shall be specified in the motion voted on by the commission.]
(b)
]
A preliminary review [
and all further
proceedings under this chapter with respect to a matter
] initiated
by the commission under section 571.124(b) of the Government Code
[
under this section shall be
]
is
deemed to be a [
sworn
] complaint for [
all
] purposes of
all further proceedings
under chapter 571 of the Government Code and
of this chapter. [
Notices required by this title are given only to the respondent, since there
is no complainant in a sworn complaint under this section.
]
Sworn ] Complaint.
A sworn complaint must
be written and
] include the following information:
name, mailing address, and
] telephone number
of the complainant;
and
the name and,
] if known to the complainant,
the
mailing address and telephone number of each respondent [
;
].
(3)
the position or title of each
respondent where the alleged violation is related to the position or title
held by the respondent;]
(4)
in simple, concise, and direct
statements, the nature of the alleged violation, including, if known to the
complainant, the specific rule or provision of law alleged to have been violated;]
(5)
in simple, concise, and direct
statements, the facts alleged by the complainant which, if true, constitute
a violation of a law administered and enforced by the commission, including
the dates or period of time in which the alleged violation occurred;]
(6)
a simple, concise, and direct
statement that identifies allegations of fact not personally known to the
complainant but alleged on information and belief, and the source and basis
of complainant's information and belief that those facts are true;]
(7)
all documents or other material
relevant to the allegations that are in complainant's possession when the
sworn complaint was filed;]
(8)
a description of all documents
or other material relevant to the allegations known and available to complainant
but not in complainant's possession when the sworn complaint was filed, including
the location of those documents; and]
(9)
a description of all documents
or other material relevant to the allegations known but not available to the
complainant when the sworn complaint was filed, including the location of
those documents, if known to the complainant.]
(b)
A sworn complaint must be
accompanied by the complainant's sworn affidavit. The complainant shall swear
by oath or affirmation before a notary or other person authorized by law to
administer oaths, under penalty of perjury, that the information contained
in the complaint is true and correct as to alleged facts within the personal
knowledge of the complainant, or that the complainant has good reason to believe
and does believe that the facts alleged on information and belief are true.]
(c)
A communication that fails
to include the affidavit required by subsection (b) of this section is not
a sworn complaint, and will be returned to the person making the communication
in accordance with §12.55 of this title (relating to Attempted Sworn
Complaint).]
Nature ] of Violation.
The description
of the nature of an alleged violation under §12.57 of this title (relating
to Contents of a Sworn Complaint) is sufficient if the commission can reasonably
ascertain the relevant rule or provision of law from the description or from
the statement of facts. When the nature of the violation is not clearly stated
in the complaint, the commission shall clearly restate the nature of the alleged
violation in the notice provided under §12.63 of this title (relating
to Notice of Sworn Complaint).
]
sworn
] complaint that erroneously cites a
specific rule or provision of law is nonetheless sufficient if the correct
citation can reasonably be ascertained by the commission. When a complaint
erroneously cites a specific rule or provision of law, the commission shall
cite the correct rule or provision of law in the notice provided
to the
respondent
[
under §12.63 of this title (relating to Notice
of Sworn Complaint)
].
The allegations under §12.57 of this title (relating
to Contents of a Sworn Complaint) must include all facts necessary to establish
each element of the violation.
] The alleged facts must provide sufficient
detail to reasonably place the respondent on notice of the law violated [
,
]
and
of the manner and means by which the violation allegedly
occurred [
,
] and to afford the respondent a basis on which to prepare
a response.
When this title
requires a copy of the sworn complaint to be provided to the complainant or
respondent, the copy shall include all documents submitted with the complaint,
] unless the executive director [
:
]
(1)
]
determines that certain supporting documents
are redundant [
and will be provided to the respondent in accordance with
paragraph (3) of this subsection;
]
.
(2)
]
If the executive director
determines that supporting documents are redundant, the notice of complaint
shall describe
[
describes
] the documents [
for which
copies are not provided;
] and
(3)
]
inform the respondent
[
includes
a statement
] that the documents [
described in paragraph (2) of
this subsection
] are available for examination by the respondent at
the agency office and that copies will be provided to the respondent on request
at the respondent's expense.
(b)
] [
The right to receive
a document from the commission may be waived.
] Whenever the executive
director believes a complainant or respondent may agree a document is not
needed, the executive director may ask if the complainant or respondent will
waive the right to receive the document.
Subchapter C. INVESTIGATION AND PRELIMINARY REVIEW