ADOPTED RULES

At its June 27, 2018, meeting, the Texas Ethics Commission voted to adopt the following new or amended rules: §§12.13, 12.31, 12.33, 12.53, 12.83, 12.101, 12.102, 12.121, 12.123, 12.125, 12.127, 12.131, 12.133, 12.151, 12.153, 12.155, 12.161, 12.163, 12.165, 12.167, 12.171, 12.173, and 12.175. The text of the new and amended rules is located below.

§12.13.  Representation by Counsel.
(effective August 7, 2018)
Text of Adopted Rule

§12.31.  Conduct and Decorum.
(effective August 7, 2018)
Text of Adopted Rule

§12.33.  Sanctioning Authority.
(effective August 7, 2018)
Text of Adopted Rule

§12.53.  Commission Initiated Complaint.
(effective August 7, 2018)
Text of Repealed Rule

§12.83.  Preliminary Review.
(effective August 7, 2018)
Text of Adopted Rule

§12.101.  Application and Construction.
(effective August 7, 2018)
Text of Adopted Rule

§12.102.  Order of Formal Hearing.
(effective August 7, 2018)
Text of Adopted Rule

§12.121.  Prehearing Conferences.
(effective August 7, 2018)
Text of Adopted Rule

§12.123.  Scheduling Orders.
(effective August 7, 2018)
Text of Adopted Rule

§12.125.  Filing of Documents.
(effective August 7, 2018)
Text of Adopted Rule

§12.127.  Service of Documents.
(effective August 7, 2018)
Text of Adopted Rule

§12.131.  Powers and Duties of the Presiding Officer.
(effective August 7, 2018)
Text of Adopted Rule

§12.133.  Orders from the Commission.
(effective August 7, 2018)
Text of Adopted Rule

§12.151.  Required Form of Pleadings.
(effective August 7, 2018)
Text of Adopted Rule

§12.153.  Motions, Generally.
(effective August 7, 2018)
Text of Adopted Rule

§12.155.  Motions for Continuance and to Extend Time.
(effective August 7, 2018)
Text of Adopted Rule

§12.161.  Time Allotted to Parties.
(effective August 7, 2018)
Text of Adopted Rule

§12.163.  Presentation of Evidence.
(effective August 7, 2018)
Text of Adopted Rule

§12.165.  Rules of Evidence.
(effective August 7, 2018)
Text of Adopted Rule

§12.167.  Numbering of Exhibits.
(effective August 7, 2018)
Text of Adopted Rule

§12.171.  Standard of Proof.
(effective August 7, 2018)
Text of Adopted Rule

§12.173.  Default Proceedings.
(effective August 7, 2018)
Text of Adopted Rule

§12.175.  Resolution of Formal Hearing.
(effective August 7, 2018)
Text of Adopted Rule


§12.13.  Representation by Counsel.
Text of Adopted Rule

The new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter A. GENERAL PROVISIONS AND PROCEDURES

§12.13. Representation by Counsel.

(a) A respondent has the right to be represented by counsel retained by the respondent in any proceeding of a complaint.

(b) Counsel representing a respondent shall enter an appearance with the commission that contains the counsel’s mailing address, email address, and telephone and fax numbers. If the respondent’s counsel is not licensed to practice law in Texas, the representative must show authority to appear as the respondent’s counsel.

(c) The commission may, through the approval of its presiding officer, admit an attorney who is a resident of and licensed to practice law in another state, and who is not an active member of the State Bar of Texas, to represent a respondent before the commission if the nonresident attorney complies with the requirements of Tex. Gov't Code §82.0361 and Rule XIX of the Rules Governing Admission to the Bar of Texas and files a motion, accompanied by proof of compliance with those provisions, with the commission requesting to be admitted to represent a respondent.

(d) This rule does not allow a person to engage in the unauthorized practice of law.


§12.31.  Conduct and Decorum.
Text of Adopted Rule

The new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter A. GENERAL PROVISIONS AND PROCEDURES

§12.31. Conduct and Decorum.

(a) Parties, representatives, and other participants at a hearing shall conduct themselves with dignity, show courtesy and respect for one another and for the commission, and follow any additional guidelines of decorum prescribed by the presiding officer, including adherence to the amount of time allotted for the hearing. Attorneys shall adhere to the standards of conduct in the Texas Lawyer’s Creed promulgated by the Supreme Court of Texas and the Court of Criminal Appeals and the Texas Disciplinary Rules of Professional Conduct promulgated by the Supreme Court of Texas.

(b) Attorneys should advise their clients and witnesses of the applicable rules of conduct and decorum.

(c) All objections, arguments, and other comments by parties shall be directed to the commission and not to an opposing party.

(d) While a party is addressing the commission or questioning a witness, any other party shall not interrupt for any purpose except to make a valid objection.

(e) Parties shall not approach the dais without leave of the presiding officer and must not lean on the dais.

(f) Parties shall remain seated at the counsel table at all times except:

(g) Parties must question witnesses and deliver arguments to the commission while seated at the counsel table or standing at the lectern. If a party seeks to question or argue from another location, leave of the presiding officer must be requested and granted.

(h) Parties must request leave of the presiding officer to conduct a demonstration. 

(i) The presiding officer may take appropriate action to maintain and enforce proper conduct and decorum, including:


§12.33.  Sanctioning Authority.
Text of Adopted Rule

The new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter A. GENERAL PROVISIONS AND PROCEDURES

§12.33. Sanctioning Authority.

(a) The presiding officer has the authority to impose appropriate sanctions against a party or its representative for:

(b) The presiding officer may issue an order imposing sanctions when justified by party or representative behavior described in subsection (a) of this section and after notice and opportunity for hearing. Sanctions may include:


§12.53.  Commission Initiated Complaint.
Text of Repealed Rule

The new language is indicated by underlined text.
The deleted text is indicated by [strikethrough] text.

Chapter 12. SWORN COMPLAINTS
Subchapter B. FILING AND INITIAL PROCESSING OF A COMPLAINT

§12.53. Commission Initiated Complaint.

(a) Commission staff may gather or present documents or evidence, make recommendations, and otherwise communicate outside the presence of the respondent with commissioners in contemplation of, or in preparation for, a commission initiated preliminary review. Commissioners may request documents, evidence, or recommendations, and otherwise communicate with commission staff outside the presence of the respondent, in contemplation of, or in preparation for, a commission initiated preliminary review.

(b) [(a)] A preliminary review initiated by the commission under section 571.124(b) of the Government Code is deemed to be a complaint for purposes of all further proceedings under chapter 571 of the Government Code and of this chapter.

(c) [(b)] Documents or evidence gathered by the commission and commission staff in contemplation of, or in preparation for, a commission initiated preliminary review are related to the processing of a preliminary review or motion for the purposes of sections 571.139 and 571.140 of the Government Code.

(d) [(c)] Discussions between the commission and commission staff regarding gathering documents or evidence in contemplation of, or in preparation for, a commission initiated preliminary review are related to the processing of a preliminary review or motion for the purposes of sections 571.139 and 571.140 of the Government Code.


§12.83. Preliminary Review.
Text of Adopted Rule

The adopted new language is indicated by underlined text.
The deleted language is indicated by [strikethrough] text.

Chapter 12. SWORN COMPLAINTS
Subchapter C. INVESTIGATION AND PRELIMINARY REVIEW.

§12.83. Preliminary Review.

(a) A respondent must respond to written questions submitted to the respondent pursuant to section 571.1243 of the Government Code not later than 15 business days after the respondent receives the written questions. The executive director may grant an extension of the time period for good cause shown.

(b) If the commission staff submits written questions to a respondent pursuant to section 571.1243 of the Government Code, the time period set forth in section 571.1242(a)(2) of the Government Code or section 571.1242(b)(2) of the Government Code, as applicable, is increased by the number of business days during the period beginning on the date the commission sends the written questions and ending on the date the commission receives the respondent's written response.

(c) If the commission staff applies to the commission for the issuance of a subpoena pursuant to section 571.137(a-1) of the Government Code, the time period set forth in section 571.1242(a)(2) of the Government Code or section 571.1242(b)(2) of the Government Code as applicable, is increased by the number of business days during the period beginning on the date the staff applies to the commission for the subpoena and ending on either:

(d) During a preliminary review, commission staff may present documents or evidence, make recommendations, or otherwise communicate with commissioners outside the presence of the respondent for the purpose of investigating and resolving a sworn complaint. [The executive director may report to the commission any findings and conclusions from a preliminary review of a complaint.]

(e) Commission staff may not communicate with a commissioner outside the presence of the respondent for the purpose of influencing a decision on a pending sworn complaint after the complaint has been scheduled for a preliminary review hearing and notice of the hearing has been sent to the respondent.


§12.101. Application and Construction.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 1. General Procedures

§12.101. Application and Construction.

The proceedings of a formal hearing shall be conducted in accordance with this subchapter, Chapter 571 of the Government Code, and Subchapters C-H, Chapter 2001, of the Government Code (the Administrative Procedure Act) only to the extent they are consistent with Chapter 571. In the event of a conflict, Chapter 571 controls.


§12.102. Order of Formal Hearing.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 1. General Procedures

§12.102. Order of Formal Hearing.

As soon as practicable after the commission orders a formal hearing, the executive director shall provide to the parties to the complaint, and to the complainant, a copy of the commission's decision to order the hearing. The decision shall include the date, time, and place of the hearing and be signed by the presiding officer.


§12.121. Prehearing Conferences.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 2. Scheduling, Filing, and Service

§12.121. Prehearing Conferences.

The presiding officer may order that one or more prehearing conferences be held to address any matters prior to the formal hearing, including motions for discovery or subpoenas, motions for sanction, or other matters related to the hearing. The commission shall provide such an order to the parties and the complainant within 5 business days after the decision is made. The order shall include the date, time, and place of the conference and a list of the matters to be addressed at the conference.


§12.123. Scheduling Orders.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 2. Scheduling, Filing, and Service

§12.123. Scheduling Orders.

(a) The following deadlines apply to a prehearing conference or formal hearing, as applicable:

(b) A scheduling order containing the deadlines under this section shall be included with the notice required by section 571.126 of the Government Code. The presiding officer may amend a scheduling order upon the request of a party for good cause shown. A decision by the presiding officer to amend a scheduling order or to deny a motion, response, or evidence shall be issued to the parties to a hearing within 5 business days after the decision is made.

(c) The presiding officer may deny a party's motions, responses, or replies or deny a party's evidence from being admitted into the record of the hearing if the party violates a scheduling order.


§12.125. Filing of Documents.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 2. Scheduling, Filing, and Service

§12.125. Filing of Documents.

(a) Motions, responses, and other documents in a formal hearing must be filed with the Commission:

(b) All documents must clearly indicate the sworn complaint number and the name of the respondent for which it is filed.

(c) Time of filing. With respect to documents filed by mail, fax, or hand-delivery, the time and date of filing shall be determined by the file stamp affixed by the commission. With respect to documents filed by email, the time and date of filing is the electronic time stamp affixed by the commissions email system. Documents received when the commission is closed shall be deemed filed the next business day.

(d) Non-conforming documents. The commission may not refuse to file a document that fails to conform with this chapter. When a filed document fails to conform to this rule, the executive director or presiding officer may identify the errors to be corrected and state a deadline.


§12.127. Service of Documents.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 2. Scheduling, Filing, and Service

§12.127. Service of Documents.

(a) Service on all parties. On the same date a document is filed with the commission, a copy shall also be sent to each party or the party's authorized representative by hand-delivery; by regular, certified, or registered mail; by email, upon agreement of the parties; or by fax.

(b) Certificate of service. A person filing a document shall include a certificate of service that certifies compliance with this section.

(c) Presumed time of receipt of served documents. The following rebuttable presumptions shall apply regarding a party's receipt of documents served by another party:

(d) Burden on sender. The sender has the burden of proving date and time of service.


§12.131. Powers and Duties of the Presiding Officer.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 3. Powers and Duties of Commission and Presiding Officer.

§12.131. Powers and Duties of the Presiding Officer.

(a) Presiding officer's authority and duties. The presiding officer shall have the authority and duty to:

(b) Presiding officer's powers. The presiding officer shall have the power to regulate the hearing, and the conduct of the parties and authorized representatives, including the power to:


§12.133. Orders from the Commission.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 3. Powers and Duties of Commission and Presiding Officer.

§12.133. Orders from the Commission.

(a) The presiding officer has authority to issue orders to control the conduct and scope of the proceeding, including orders to:

(b) Record of rulings. Rulings not made orally at a recorded prehearing conference or hearing shall be in writing and issued to all parties of record.

(c) Consolidation or joinder for hearing. The presiding officer may order that cases be consolidated or joined for hearing if:

(d) Severance of issues. The presiding officer may order severance of issues if separate hearings on the issues will promote the fair and efficient handling of the matters.


§12.151. Required Form of Pleadings.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 5. Pleadings and Motions.

§12.151. Required Form of Pleadings.

(a) Content generally. Written requests for action in a formal hearing shall be typewritten or printed legibly on 8-1/2 x 11-inch paper and timely filed with the commission. Photocopies are acceptable if copies are clear and legible. All filings shall contain or be accompanied by the following:

(b) Amendment or supplementation of pleadings. A party may amend or supplement its pleadings as follows:


§12.153. Motions, Generally.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 5. Pleadings and Motions.

§12.153. Motions, Generally.

(a) Purpose and effect of motions. To make a request, including to obtain a ruling, order, or any other procedural relief, a party shall file a written motion. The motion shall describe specifically the action requested and the basis for the requested action. Unless otherwise specified in this chapter, a motion is not granted until it has been ruled on by the presiding officer or commission, as applicable, even if the motion is uncontested or agreed.

(b) General requirements for motions. Except as provided in this chapter, or unless otherwise ordered by the presiding officer, all motions shall:

(3) include a reference in the motion's title to a request for a hearing on the motion if the moving party seeks a hearing; and

(d) Other motions. In addition, other types of motions are addressed in other sections of this chapter. If there is a conflict between this section and a requirement found in another section relating to a specific type of motion, the more specific provision applies.


§12.155. Motions for Continuance and to Extend Time.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 5. Pleadings and Motions.

§12.155. Motions for Continuance and to Extend Time.

(a) Contents of a motion for continuance. A request to postpone or delay a hearing or prehearing conference shall include:

(b) Contents of a motion to extend time. A request for more time to file a document or respond to discovery shall include:

(c) Date of filing. Motions for continuance or to extend time shall be filed no later than five days before the date of the proceeding or deadline at issue or shall state good cause for presenting the motion after that time. If the presiding officer finds good cause has been demonstrated, the presiding officer may consider a motion filed after that time or presented orally at the proceeding.

(d) Date of service. Motions for continuance or extension shall be served in accordance with §12.127 of this chapter. However, a motion for continuance that is filed five days or less before the date of the proceeding shall be served:

(e) Responses to motions for continuance. Responses to motions for continuance shall be in writing, except a response to a motion for continuance made on the date of the proceeding may be presented orally at the proceeding. Unless otherwise ordered or allowed by the presiding officer, responses to motions for continuance shall be made by the earlier of:

(f) Responses to motions to extend time. Unless otherwise ordered by the presiding officer, responses to motions for extension of a deadline are due three days after receipt of the motion.

(g) A motion for continuance or extension of time is not granted until it has been ruled on by the presiding officer, even if the motion is uncontested or agreed. A case is subject to default or dismissal for a party's failure to appear at a scheduled hearing in which a motion for continuance has not been ruled on by the presiding officer, even when the motion is agreed or unopposed.


§12.161. Time Allotted to Parties.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 6. Hearings and Prehearing Conferences.

§12.161. Time Allotted to Parties.

The presiding officer shall determine the amount of time allotted to each party for the presentation of its case to the commission. Upon request of a party, the presiding officer may adjust the time allotted for good cause shown or for a violation of a rule under this chapter. A determination shall be made by order or orally during the course of the proceeding.


§12.163. Presentation of Evidence.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 6. Hearings and Prehearing Conferences.

§12.163. Presentation of Evidence.

(a) Presentation by parties. After the resolution of all prehearing matters, each party shall make its presentation during the formal hearing. Commission staff shall make the first opening statement. The respondent or respondent's authorized representative shall then make an opening statement, should the respondent wish to do so at that time. The respondent may reserve the opening statement until the presentation of the respondent's case.

(b) Following opening statements, commission staff may present evidence in its case. At the conclusion of the presentation of the evidence, commission staff may rest. The respondent or the respondent's authorized representative may then make an opening statement, or, if an opening statement has already been made, present evidence in its defense of the allegations raised in the notice of formal hearing. At the conclusion of the presentation of evidence by the respondent, the respondent may rest.

(c) After both parties have rested their case, commission staff shall make a closing argument. The respondent may then make a closing argument. Commission staff may then make a reply.

(d) Unless otherwise ordered by the presiding officer, after closing arguments, evidence will be closed and the case will be turned over to the members of the commission for deliberation and decision.


§12.165. Rules of Evidence.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 6. Hearings and Prehearing Conferences.

§12.165. Rules of Evidence.

(a) The Texas Rules of Evidence as applied in a nonjury civil case in district court govern a formal hearing only to the extent consistent with Chapter 571 of the Government Code.

(b) Evidence may be admitted if it meets the standards set out in section 2001.081 of the Government Code.


§12.167. Numbering of Exhibits.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 6. Hearings and Prehearing Conferences.

§12.167. Numbering of Exhibits.

(a) Each exhibit to be offered shall first be numbered by the offering party.

(b) Copies of the original exhibit shall be furnished by the party offering the exhibit to the commission and to each party present at the hearing unless otherwise ordered by the presiding officer.

(c) Excluded exhibits. An exhibit excluded from evidence will be considered withdrawn by the offering party and will be returned to the party.

(d) Pre-numbered exhibits may be filed with the commission prior to the formal hearing. Pre-numbered exhibits that are not offered and admitted at the hearing will be deemed withdrawn.


§12.171. Standard of Proof.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 7. Disposition of Formal Hearing.

§12.171. Standard of Proof.

At a formal hearing, the commission shall determine by preponderance of the evidence whether a violation within the jurisdiction of the commission has occurred.


§12.173. Default Proceedings.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 7. Disposition of Formal Hearing.

§ 12.173. Default Proceedings.

(a) If a respondent to whom a notice of hearing with factual allegations is served or provided fails to appear for the hearing, the commission may proceed in the respondent's absence on a default basis.

(b) A default proceeding under this section requires adequate proof of the following:

(c) In the absence of adequate proof to support a default, the presiding officer shall continue the hearing and direct commission staff to provide adequate notice of hearing. If adequate notice is unable to be provided, the commission may dismiss the complaint.

(d) Upon receiving the required showing of proof to support a default, the commission may by vote deem admitted the allegations in the notice of hearing and issue a default decision.


§12.175. Resolution of Formal Hearing.
Text of Adopted Rule

The adopted new language is indicated by underlined text.

Chapter 12. SWORN COMPLAINTS
Subchapter E. FORMAL HEARING
Division 7. Disposition of Formal Hearing.

§12.175. Resolution of Formal Hearing.

(a) As provided by section 571.139 of the Government Code, the commission may deliberate in private regarding the resolution of a sworn complaint or motion, including a dismissal of a complaint, a determination of whether a violation within the jurisdiction of the commission has occurred, and an appropriate penalty upon a finding of a violation. As provided by section 2001.061 of the Government Code, the presiding officer may permit the executive director, general counsel, or other employee of the commission who has not participated in a hearing in the complaint for the purpose of using the special skills or knowledge of the agency and its staff in evaluating the evidence.

(b) The presiding officer may announce the commission's decision on the resolution of a sworn complaint or motion after the conclusion of a formal hearing.

(c) The commission should issue a final order within 60 days after the conclusion of a formal hearing.

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