House Bill 1606, the Ethics Commission sunset bill, required numerous changes in our rules. At its May 7, 2004, meeting, the Ethics Commission voted to adopt rules regarding sworn complaints.
Text of Adopted Rule
The new language is italicized.
Subchapter A. GENERAL PROVISIONS AND PROCEDURES
§ 12.1 Definitions is repealed.
§ 12.3. Scope of Chapter is repealed.
§ 12.5. Deadline for Filing a Complaint
(a) The commission has no jurisdiction over an alleged violation:
(1) 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 barred from criminal prosecution by operation of the applicable statute of limitations; or
(2) if the alleged violation is not also a criminal offense and if the allegation is based on facts that occurred more than three years before the date the complaint is filed or the date the commission would vote to initiate a preliminary review of a matter.
(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) 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) Confidentiality under section 571.140 of the Government Code may be waived only if the complainant and each respondent named in the complaint provide a verified, written waiver of confidentiality to the executive director.
§ 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 complaint until written notice of a formal hearing on the complaint is sent to the respondent and complainant.
(b) The Open Records Law, chapter 552 of the Government Code, does not apply to information relating to a complaint until written notice of a formal hearing on the complaint is sent to the respondent and complainant.
§ 12.11. Delegation to Executive Director
Any duty or power of the commission relating to a complaint that does not require a commission vote is delegated to the executive director.
§ 12.13. Representation by Counsel
A respondent has the right to be represented by counsel retained by the respondent in any proceeding of a complaint.
§ 12.15. Appearance of Complainant at Hearing
The commission may grant a complainant the opportunity to be heard at a hearing.
§ 12.17. Agreed Disposition is repealed.
§ 12.19. Agreements to be in Writing
No stipulation or agreement with respect to any matter in a complaint shall be effective unless it has been:
(1) reduced to writing and signed by each person making the stipulation or agreement, or by that person's authorized representative; or
(2) entered into the record during the course of a hearing.
§ 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 a hearing must be given at least 10 business days before the date of the hearing, and must include:
(1) 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 person entitled to receive notice may waive that right by filing a written waiver with the executive director.
(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, 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.
§ 12.25. Waiver of Hearing
A respondent may waive the right to a hearing.
§ 12.27. Extension of Deadlines is repealed.
§ 12.29. Subpoenas
(a) A subpoena issued under section 571.137 of the Government Code shall specify the date, time, place, and manner for execution of the subpoena.
(b) A subpoena that requires a person to provide testimony shall be served on that person at least 10 business days before the date the subpoena is to be executed.
§ 12.31. Administrative Law Judge is repealed.
§ 12.33. Contested Case Procedures is repealed.
§ 12.35. Frivolous Complaint
(a) 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.
(b) 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:
(1) the timing of the 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;
(2) the nature and type of any publicity surrounding the filing of the complaint, and the degree of participation by the complainant in publicizing the fact that a complaint was filed with the commission;
(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 shall include:
(1) an explanation of why the complaint appears to be frivolous; and
(2) the date, time, and place of the show cause hearing to be held under subsection (e) of this section.
(e) Before making a determination that a 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.
§ 12.37. Sanctions is repealed.
§ 12.39. Criminal Referral is repealed.
Subchapter B. FILING AND INITIAL PROCESSING OF A COMPLAINT
§ 12.51. Filing with Commission is repealed.
§ 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
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.
§ 12.55. Attempted Sworn Complaint is repealed.
§ 12.57. Contents of a Complaint
(a) In addition to the contents set out in Government Code section 571.122, a complaint must include the following information:
(1) the telephone number of the complainant; and
(2) if known to the complainant, the mailing address and telephone number of each respondent.
(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 of Violation
(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 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.
§ 12.61. Statement of Facts
(a) 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.
(b) The facts alleged must disclose the specific date or dates on which the alleged violation occurred, if that date is known to the complainant. If the complainant is unable to provide a specific date for the violation, the complaint must disclose a specific period of time during which the alleged violation may have occurred.
(c) The facts alleged may adopt by reference the content of documents submitted with the complaint. However, the allegations must reasonably identify those portions of the document that are relevant to the alleged violation.
§ 12.63. Notice of Sworn Complaint is repealed.
§ 12.65. Status Reports on Pending Sworn Complaints is repealed.
§ 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 unless the executive director determines that certain supporting documents are redundant.
(b) If the executive director determines that supporting documents are redundant, the notice of complaint shall describe the documents and inform the respondent that the documents 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.
(c) 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.
§ 12.69. Vote To Consider a Sworn Complaint is repealed.
§ 12.71. Notice of Jurisdiction is repealed.
Subchapter C. INVESTIGATION AND PRELIMINARY REVIEW
§ 12.81. Initial Investigation is repealed.
§ 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:
(1) the date the commission rejects the staff's application for a subpoena;
(2) the date the person to whom the subpoena is directed complies with the subpoena; or
(3) the date the commission reports to a district court pursuant to section 571.137(c) of the Government Code.
(d) The executive director may report to the commission any findings and conclusions from a preliminary review of a complaint.
§ 12.85. Preliminary Review Hearing
The executive director and the respondent may present any relevant evidence at a preliminary review hearing, including examination and cross-examination of witnesses.
§ 12.87. Resolution of Preliminary Review Hearing
The executive director shall dismiss a complaint if the commission fails to issue a decision under section 571.126 of the Government Code within 180 days after a preliminary review hearing.
§ 12.89. Notice of Informal Hearing or Dismissal is repealed.
Subchapter D. INFORMAL HEARING
§ 12.101. Informal Hearing is repealed.
§ 12.103. Resolution After an Informal Hearing is repealed.
§ 12.105. Notice of Formal Hearing or Dismissal is repealed.
Subchapter E. FORMAL HEARING
§ 12.111. Standard of Proof is repealed.
§ 12.113. Disclosure of Information is repealed.
§ 12.115. Nondisclosure of Subpoenaed Witnesses is repealed.
§ 12.117. Request To Appear is repealed.
§ 12.119. Resolution after a Formal Hearing
The executive director shall dismiss a complaint if the commission fails to adopt a motion under section 571.132 of the Government Code. The dismissal shall state the complaint was dismissed because there were insufficient commission votes to find that there was or was not a violation of law.
§ 12.121. Notice of Resolution after Formal Hearing is repealed.
§ 12.123. Commission Report Available to the Public is repealed.