S.B. No. 1368
AN ACT
relating to the creation of a county ethics commission in certain
counties; providing civil and criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 5, Local Government Code, is
amended by adding Chapter 161 to read as follows:
CHAPTER 161. COUNTY ETHICS COMMISSION IN CERTAIN COUNTIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 161.001. APPLICABILITY OF CHAPTER. This chapter
applies only to a county that:
(1) has a population of 650,000 or more;
(2) is located on the international border; and
(3) before September 1, 2009, had a county ethics
board appointed by the commissioners court.
Sec. 161.002. DEFINITIONS. In this chapter:
(1) "Commission" means a county ethics commission
created under this chapter.
(2) "Commission staff" means county employees
assigned to provide administrative support to the commission.
(3) "Communicates directly with" has the meaning
assigned by Section 305.002, Government Code.
(4) "County affiliate" means a person described and
determined by order of the commissioners court on recommendation of
the commission. As determined by the commissioners court, the term
includes:
(A) any person whose goods and services are
purchased under the terms of a purchase order or contractual
agreement with the county; and
(B) as determined by the county, any other
persons doing business with the county.
(5) "County employee" means a person employed by the
county or a county officer and includes a person employed in the
judicial branch of the county government who is not subject to the
Code of Judicial Conduct. The term does not include a county
officer.
(6) "County office" means a position held by a county
officer.
(7) "County officer" means a county judge, county
commissioner, county attorney, sheriff, county tax
assessor-collector, county clerk, district clerk, county
treasurer, county auditor, county purchasing agent, and constable.
(8) "County public servant" means a person elected,
selected, appointed, employed, or otherwise designated as one of
the following, even if the person has not yet qualified for or
assumed the duties of office:
(A) a county officer or county employee;
(B) a person appointed by the commissioners court
or a county officer to a position on one of the following, whether
the position is compensated or not:
(i) an authority, board, bureau,
commission, committee, council, department, district, division, or
office of the county; or
(ii) a multi-jurisdictional board;
(C) an attorney at law or notary public when
participating in the performance of a governmental function;
(D) a candidate for nomination or election to an
elected county office; or
(E) a person who is performing a governmental
function under a claim of right although the person is not legally
qualified or authorized to do so.
(9) "Lobbyist" means a person who, for compensation in
excess of an amount established by the commission, communicates
directly with a county officer or county employee to influence
official action. The term does not include an attorney who
communicates directly with a county officer or county employee to
the extent that such communication relates to the attorney's
representation of a party in a civil or criminal proceeding.
Sec. 161.003. CONFLICT WITH CIVIL SERVICE AGREEMENT.
(a) This chapter may not be construed to affect:
(1) the terms of an agreement authorized by Chapter
174 between the county and county employees; or
(2) any provision of a civil service statute
applicable to a county employee.
(b) If an agreement authorized by Chapter 174 or a civil
service statute applicable to a county employee conflicts with this
chapter or an ethics code adopted or enforced under this chapter,
the agreement or civil service statute prevails.
[Sections 161.004-161.050 reserved for expansion]
SUBCHAPTER B. CREATION OF COMMISSION; APPOINTMENT OF COMMISSION
MEMBERS
Sec. 161.051. CREATION OF COMMISSION BY ORDER. (a) The
commissioners court of a county, by an order adopted by a majority
of the court's full membership, may create a county ethics
commission.
(b) A copy of an order adopted under this section shall be
placed in the minutes of the court's proceedings. The copy of the
order is public information.
Sec. 161.052. CREATION OF COMMISSION BY ELECTION. (a) A
county ethics commission may be created by approval of the system by
a majority of the qualified voters of the county voting at an
election called for that purpose.
(b) The commissioners court by order may call an election on
the question of the creation of a county ethics commission.
(c) The commissioners court shall hold the election called
under this section on the first authorized uniform election date
prescribed by Chapter 41, Election Code, that allows sufficient
time for publication of the notice required by Subsection (d) and
for compliance with any other requirements established by law.
(d) In addition to the notice required by Chapter 4,
Election Code, the commissioners court must publish in a newspaper
of general circulation in the county, and on the home page of the
county's Internet website, a substantial copy of the order calling
the election. The first newspaper publication must be made on or
before the 15th day before the date of the election and continue
once a week for two consecutive weeks, and the notice on the
county's Internet website shall remain on the home page each day
beginning not later than the 16th day before the election and ending
on the date of the election.
Sec. 161.053. BALLOT. The commissioners court shall order
the ballot at the election to be printed to provide for voting for
or against the proposition: "Creation of a county ethics
commission."
Sec. 161.054. RESULT OF ELECTION. If the proposition is
approved, the commissioners court shall declare the result and by
order create the county ethics commission. A copy of the order
creating the commission shall be placed in the minutes of the
court's proceedings.
Sec. 161.055. APPOINTMENT OF COMMISSION. (a) The
commission is composed of:
(1) five members, each of whom is appointed by the
county judge or a county commissioner; and
(2) five members appointed by the commissioners court,
with one member appointed from a list of nominees submitted by each
of the following entities:
(A) the county civil service commission;
(B) a bar association in the county;
(C) the sheriff's civil service commission;
(D) a dispute resolution center in the county
that is affiliated with a council of governments; and
(E) a human resources management association in
the county.
(a-1) The commissioners court shall designate the entities
described by Subsections (a)(2)(B), (D), and (E) that may submit
nominees for membership on the commission. If a designated entity
does not wish to submit nominees, the commissioners court shall
select a similar entity that has experience with grievance or
mediation structures or processes.
(b) Not later than the 60th day after the date of the order
creating the commission as provided in Section 161.051 or Section
161.054:
(1) the county judge and each county commissioner
shall each appoint one member of the commission; and
(2) each entity described by Subsection (a)(2) or
alternate entity designated under Subsection (a-1) shall deliver to
the commissioners court the entity's nominees for membership on the
commission.
(c) The commissioners court shall set the date for the first
meeting of the initial members. The first meeting must be set not
earlier than the 60th day after the date of the order creating the
commission and not later than the 90th day after the date of that
order.
Sec. 161.056. ELIGIBILITY. (a) To be eligible for
appointment to the commission, a person must:
(1) be at least 18 years old;
(2) be a property taxpayer in the county; and
(3) have resided in the county for the two years
immediately preceding the date on which the person's term will
begin.
(b) A person is not eligible for appointment to the
commission if the person is:
(1) an elected officer;
(2) a county employee;
(3) a county affiliate;
(4) a person employed as a lobbyist;
(5) a person convicted of a misdemeanor involving
moral turpitude or a felony; or
(6) a person who is delinquent in payment of local,
state, or federal taxes.
Sec. 161.057. TERMS. (a) Members of the commission serve
terms of two years beginning on February 1 of each odd-numbered
year.
(b) A member may serve more than one term.
Sec. 161.058. VACANCIES. (a) A vacancy on the commission
shall be filled for the remainder of the unexpired term as follows:
(1) if the vacancy involves a member appointed by the
county judge or a county commissioner, the vacancy is filled,
except as provided by Subsection (b), by appointment of that
officer or the officer's successor in office; or
(2) if the vacancy involves a member appointed under
Section 161.055(a)(2), the vacancy is filled as provided by that
section for an appointment to a full term.
(b) If the county judge or county commissioner, as
applicable, does not fill the vacancy before the 60th day after the
date the position becomes vacant, the commission may fill the
vacancy by a majority vote of the remaining members.
Sec. 161.059. MEETINGS. (a) The commission shall meet on
a regular basis.
(b) The commission is a governmental body for purposes of
Chapter 551, Government Code.
(c) Except as otherwise provided by this chapter, a majority
of the commission constitutes a quorum.
Sec. 161.0591. CHAIR. (a) The position of chair
alternates every six months between members appointed under Section
161.055(a)(1) and members appointed under Section 161.055(a)(2)
and rotates so that each position on the commission serves as chair,
as follows:
(1) the rotation of members appointed under Section
161.055(a)(1) begins with the member appointed by the county judge,
followed by the members appointed by the county commissioners in
order of precinct number; and
(2) the rotation of members appointed under Section
161.055(a)(2) begins with the member appointed under Section
161.055(a)(2)(A), followed by the members appointed under Sections
161.055(a)(2)(B), (C), (D), and (E) in that order.
(b) The member serving as chair may not vote on a matter
before the commission except to break a tie vote.
Sec. 161.060. REMOVAL OF COMMISSION MEMBER. A member of the
commission is a county officer described by Section 87.012(15) and
may be removed as provided by Chapter 87 if, after a trial, the jury
finds good cause for removal, including:
(1) failure to pay local, state, or federal taxes when
due;
(2) violation of the ethics code adopted by the
commission;
(3) conviction of a felony or misdemeanor;
(4) excessive absenteeism as determined by the
commission; and
(5) official misconduct.
Sec. 161.061. LEGAL REPRESENTATION. The county attorney,
or district attorney, or criminal district attorney, as
appropriate, with the duty to represent the county in civil matters
shall represent the commission in all legal matters.
[Sections 161.062-161.100 reserved for expansion]
SUBCHAPTER C. POWERS
Sec. 161.101. GENERAL POWERS. (a) The commission shall
adopt, publish, and enforce an ethics code governing county public
servants.
(b) The commission may adopt or use as a guide any ethics law
or rule of the United States, this state, or a political subdivision
in this state to the extent that the law or rule promotes the
purposes of this chapter and serves the needs of the county. For
purposes of Section 161.002(9), in determining the applicable
amount of compensation of a person who communicates directly with a
county officer or employee to influence official action and engages
in such communication as part of the person's regular employment,
the commission shall adopt rules that are substantially similar to
the rules or interpretations of the Texas Ethics Commission under
Chapter 305, Government Code, to calculate the compensation.
(c) The commission may adopt bylaws, rules, forms,
policies, or procedures to assist in the administration of the
commission's duties under this chapter. The commission may be
guided by Robert's Rules of Order to the extent that it does not
conflict with the constitution and laws of the United States and
this state or conflict with other guidelines adopted by the
commission.
(d) The commission shall be assigned staff by the county and
provided access to county resources to assist in its duties.
(e) The commission shall develop and implement policies
that provide the public with information on the commission and the
ethics code.
(f) The commission shall enforce the provisions of the
ethics code by issuing appropriate orders or recommendations or by
imposing appropriate penalties.
Sec. 161.102. ADVISORY OPINIONS. On the request of any
person covered by the ethics code adopted by the commission, the
commission may issue a written ethics advisory opinion regarding
the application of the ethics code to a specified existing or
hypothetical factual situation. The commission may not issue an
opinion that includes the name of any person who may be affected by
the opinion. The name of the person requesting the opinion shall be
deemed confidential.
Sec. 161.103. PUBLIC INTEREST INFORMATION. (a) The
commission shall develop plain-language materials as described by
this section. The commission shall post the information on the
county's Internet website and make the information otherwise
available to the public.
(b) The materials must include:
(1) a description of:
(A) the commission's responsibilities;
(B) the types of conduct that constitute a
violation of the ethics code adopted by the commission;
(C) the types of sanctions the commission may
impose;
(D) the commission's policies and procedures
relating to complaint investigation and resolution; and
(E) the duties of a person filing a complaint
with the commission; and
(2) a diagram showing the basic steps in the
commission's procedures relating to complaint investigation and
resolution.
(c) The commission shall provide the materials described by
this section to each complainant and respondent.
(d) The commission shall adopt a policy to effectively
distribute materials as required by this section.
Sec. 161.104. COMMISSION MEMBER EDUCATION AND TRAINING.
(a) Not later than the 60th day after the date a person is
appointed to the commission, the person must complete training on
the following matters:
(1) the legislation that created the commission;
(2) the role and functions of the commission; and
(3) the requirements of:
(A) the open meetings law, Chapter 551,
Government Code;
(B) the public information law, Chapter 552,
Government Code; and
(C) other laws relating to public officials,
including conflict-of-interest laws.
(b) A member of the commission must complete subsequent
training programs on the following matters:
(1) the ethics code adopted by the commission; and
(2) the procedural rules adopted by the commission.
(c) A person who is appointed to and qualifies for office as
a member of the commission may not vote, deliberate, or be counted
as a member in attendance at a meeting of the commission until the
person completes a training program that complies with this
section.
Sec. 161.105. EDUCATION AND TRAINING FOR PERSONS COVERED BY
ETHICS CODE. (a) The commission and commission staff shall
provide periodic training for persons covered by the ethics code
adopted by the commission on at least a quarterly basis.
(b) The training program must provide information
regarding:
(1) the ethics code;
(2) the role and functions of the commission; and
(3) plain-language materials as further described by
Section 161.103.
(c) In addition to the qualifications under Subchapter C,
Chapter 262, before submitting a bid, responding to a request for
qualifications or proposals, or otherwise contracting with the
county, an officer, principal, or other person with the authority
to bind the vendor shall complete training on the ethics code.
(d) A lobbyist intending to meet with a person covered by
the ethics code shall complete training on the ethics code.
Sec. 161.106. CERTAIN DISCUSSIONS OF PENDING COMPLAINTS
PROHIBITED. Until a sworn complaint alleging a violation of the
ethics code is resolved, a member of the commission may not discuss
the complaint with a member of the commissioners court.
[Sections 161.107-161.150 reserved for expansion]
SUBCHAPTER D. COMPLAINT PROCEDURES AND HEARINGS
Sec. 161.151. DEFINITIONS. In this subchapter:
(1) "Category One violation" means a violation of the
ethics code adopted by the commission as to which it is generally
not difficult to ascertain whether the violation occurred or did
not occur, including:
(A) the failure by a person required to file a
statement or report required under the ethics code to:
(i) file the statement or report in a manner
that complies with applicable requirements; or
(ii) file the statement or report in a
timely manner;
(B) a misrepresentation in a report required
under the ethics code; or
(C) a failure to respond in a timely manner to a
written notice under Section 161.156(b).
(2) "Category Two violation" means a violation of the
ethics code adopted by the commission that is not a Category One
violation.
Sec. 161.152. COMPLAINT PROCEDURES AND HEARINGS. The
commission shall adopt the complaint procedures and hearings set
forth in this subchapter. The commission may adopt additional
procedures not in conflict with this subchapter.
Sec. 161.153. HEARINGS AND SETTLEMENT. (a) The commission
may:
(1) hold a hearing on a sworn complaint and render a
decision on a complaint or report of a violation as provided by this
chapter; and
(2) agree to the settlement of issues.
(b) The commission may not:
(1) consider a complaint or vote to investigate a
matter outside the commission's jurisdiction; or
(2) investigate any matter except in response to a
sworn complaint.
Sec. 161.154. CATEGORIZATION OF VIOLATIONS. An allegation
of a violation listed as a Category One violation shall be treated
as a Category Two violation if the commission at any time determines
that:
(1) the allegation arises out of the same set of facts
as those that give rise to an allegation of a Category Two
violation, and the interests of justice or efficiency require
resolution of the allegations together; or
(2) the facts and law related to a particular
allegation or a defense to the allegation present a level of
complexity that prevents resolution through the preliminary review
procedures for Category One violations prescribed by Section
161.159(a).
Sec. 161.155. FILING OF COMPLAINT; CONTENTS. (a) An
individual may file with the commission a sworn complaint, on a form
prescribed by the commission, alleging that a person subject to the
ethics code has violated the ethics code. The commission shall make
the complaint form available on the county website.
(b) A complaint filed under this section must be in writing
and under oath and must set forth in simple, concise, and direct
statements:
(1) the name of the complainant;
(2) the street or mailing address of the complainant;
(3) the name of each respondent;
(4) the position or title of each respondent;
(5) the nature of the alleged violation, including if
possible the specific rule or provision of the ethics code alleged
to have been violated;
(6) a statement of the facts constituting the alleged
violation and the dates on which or period of time in which the
alleged violation occurred; and
(7) all documents or other material available to the
complainant that are relevant to the allegation, a list of all
documents or other material within the knowledge of the complainant
and available to the complainant that are relevant to the
allegation but that are not in the possession of the complainant,
including the location of the documents, if known, and a list of all
documents or other material within the knowledge of the complainant
that are unavailable to the complainant and that are relevant to the
complaint, including the location of the documents, if known.
(c) The complaint must be accompanied by an affidavit
stating either that the information contained in the complaint is
correct or that the complainant has good reason to believe and does
believe that the violation occurred. If the complaint is based on
information and belief, the complaint shall state the source and
basis of the information and belief. The complainant may swear to
the facts by oath before a notary public or other authorized
official.
(d) The complaint must state on its face an allegation that,
if true, constitutes a violation of the ethics code.
Sec. 161.1551. STANDING PRELIMINARY REVIEW COMMITTEE.
(a) The standing preliminary review committee shall perform the
actions prescribed by this subchapter in conducting a preliminary
review of each sworn complaint filed with the commission.
(b) The standing preliminary review committee consists of:
(1) two members of the commission, determined as
provided by Subsection (c); and
(2) a review officer selected and retained by the
commission.
(c) The initial standing preliminary review committee
consists of one commission member, chosen by lot, from the members
of the commission appointed under Section 161.055(a)(1), and one
commission member, chosen by lot, from the members appointed under
Section 161.055(a)(2).
(d) A commission member serves on the standing preliminary
review committee for six months. After the end of a commission
member term on the standing preliminary review committee, service
on the committee rotates as provided by Section 161.0591 for the
rotation of the chair, except that the rotation begins with the
initial members of the standing preliminary review committee chosen
under Subsection (c).
(e) The review officer must be a practicing attorney or
former judge.
Sec. 161.156. PROCESSING OF COMPLAINT. (a) The standing
preliminary review committee shall determine whether a sworn
complaint filed with the commission complies with the form
requirements of Section 161.155.
(b) Not later than the 10th business day after the date a
complaint is filed, the standing preliminary review committee shall
send written notice to the complainant and the respondent. The
notice must state whether the complaint complies with the form
requirements of Section 161.155 and include the information
required by Section 161.158(c).
(c) If the standing preliminary review committee determines
that the complaint does not comply with the form requirements, the
committee shall send the complaint to the complainant with the
written notice, a statement explaining how the complaint fails to
comply, and a copy of the rules for filing sworn complaints. The
complainant may resubmit the complaint not later than the 21st day
after the date the notice under Subsection (b) is mailed. If the
standing preliminary review committee determines that the
complaint is not resubmitted within the 21-day period, the
committee shall:
(1) dismiss the complaint; and
(2) not later than the 10th business day after the date
of the dismissal, send written notice to the complainant and the
respondent of the dismissal and the grounds for dismissal.
(d) If the standing preliminary review committee determines
that a complaint is resubmitted under Subsection (c) within the
21-day period but is not in proper form, the committee shall send
the notice required under Subsection (c), and the complainant may
resubmit the complaint under that subsection.
(e) If the standing preliminary review committee determines
that a complaint returned to the complainant under Subsection (c)
or (d) is resubmitted within the 21-day period and that the
complaint complies with the form requirements, the committee shall
send the written notice under Subsection (b).
(f) If a complaint filed with the commission is within the
jurisdiction of the commission but may also be brought under the
provisions of a collective bargaining agreement authorized by
Chapter 174, a civil service rule under Section 158.0025, or a rule
of the sheriff's department, the commission shall defer
jurisdiction over the complaint to the sheriff for disposition.
The sheriff may return a complaint deferred under this subsection
to the commission for additional proceedings as the commission
determines appropriate if the sheriff determines that the conduct
alleged in the complaint is not within the scope of the collective
bargaining agreement, civil service rule, or sheriff's department
rule. The sheriff may not return a complaint deferred under this
section if:
(1) the sheriff disciplines the employee under the
collective bargaining agreement, civil service rule, or sheriff's
department rule for the conduct alleged in the sworn complaint; or
(2) the sheriff determines that the employee did not
commit the conduct alleged in the sworn complaint.
Sec. 161.157. RETALIATION AGAINST COUNTY EMPLOYEE
REPORTING VIOLATION OF ETHICS CODE PROHIBITED. (a) The county may
not suspend or terminate the employment of or take other adverse
action against a county employee who in good faith files a complaint
or otherwise reports to the commission, commission staff, or
another law enforcement authority a violation of the ethics code by
a person subject to the ethics code.
(b) The county may not suspend or terminate the employment
of or take other adverse action against a county employee who in
good faith participates in the complaint processing, preliminary
review, hearing, or any other aspect of the investigation and
resolution by the commission of an alleged violation of the ethics
code by a person subject to the ethics code.
(c) A commission created by a county under this chapter is a
part of the "local governmental entity" for purposes of Section
554.002, Government Code.
(d) An ethics code adopted by a commission pursuant to this
chapter is a "law" as defined by Section 554.001, Government Code.
Sec. 161.158. PRELIMINARY REVIEW: INITIATION. (a) The
standing preliminary review committee shall promptly conduct a
preliminary review on receipt of a written complaint that is in
compliance with the form requirements of Section 161.155.
(b) The standing preliminary review committee shall
determine in writing whether the commission has jurisdiction over
the violation of the ethics code provision alleged in a sworn
complaint processed under Section 161.156.
(c) If the standing preliminary review committee determines
that the commission has jurisdiction, the committee shall issue a
notice under Section 161.156(b) that must include:
(1) a statement that the commission has jurisdiction
over the violation alleged in the complaint;
(2) a statement of whether the complaint will be
processed as a Category One violation or a Category Two violation,
subject to reconsideration as provided for by Section 161.154;
(3) the date by which the respondent is required to
respond to the notice;
(4) a copy of the complaint and the rules of procedure
of the commission;
(5) a statement of the rights of the respondent;
(6) a statement inviting the respondent to provide to
the commission any information relevant to the complaint; and
(7) a statement that a failure to timely respond to the
notice will be treated as a separate violation.
(d) If the standing preliminary review committee determines
that the commission does not have jurisdiction over the violation
alleged in the complaint, the committee shall:
(1) dismiss the complaint; and
(2) not later than the 10th business day after the date
of the dismissal, send to the complainant and the respondent
written notice of the dismissal and the grounds for the dismissal.
Sec. 161.159. PRELIMINARY REVIEW: RESPONSE BY RESPONDENT.
(a) If the alleged violation is a Category One violation:
(1) the respondent must respond to the notice required
by Section 161.156(b) not later than the 10th business day after the
date the respondent receives the notice; and
(2) if the matter is not resolved by agreement between
the commission and the respondent before the 30th business day
after the date the respondent receives the notice under Section
161.156(b), the standing preliminary review committee shall set the
matter for a preliminary review hearing to be held at the next
committee meeting for which notice has not yet been posted.
(b) If the alleged violation is a Category Two violation:
(1) the respondent must respond to the notice required
by Section 161.156(b) not later than the 25th business day after the
date the respondent receives the notice under Section 161.156(b);
and
(2) if the matter is not resolved by agreement between
the commission and the respondent before the 75th business day
after the date the respondent receives the notice under Section
161.156(b), the standing preliminary review committee shall set the
matter for a preliminary review hearing to be held at the next
committee meeting for which notice has not yet been posted.
(c) A respondent's failure to timely respond as required by
Subsection (a)(1) or (b)(1) is a Category One violation.
(d) The response required by Subsection (a) or (b) must
include any challenge the respondent seeks to raise to the
commission's exercise of jurisdiction. In addition, the respondent
may:
(1) acknowledge the occurrence or commission of a
violation;
(2) deny the allegations contained in the complaint
and provide evidence supporting the denial; or
(3) agree to enter into an assurance of voluntary
compliance or other agreed order, which may include an agreement to
immediately cease and desist.
(e) If the standing preliminary review committee sets the
matter for a preliminary review hearing, the committee shall
promptly send to the complainant and the respondent written notice
of the date, time, and place of the preliminary review hearing.
Sec. 161.160. PRELIMINARY REVIEW: WRITTEN QUESTIONS.
During a preliminary review, the commission staff may submit to the
complainant or respondent written questions reasonably intended to
lead to the discovery of matters relevant to the investigation.
Sec. 161.161. PRELIMINARY REVIEW AND PRELIMINARY REVIEW
PROCEDURES. The commission shall adopt procedures for the conduct
of preliminary reviews and preliminary review hearings. The
procedures must include:
(1) a reasonable time for responding to questions
submitted by the commission and commission staff and subpoenas
issued by the commission; and
(2) the tolling or extension of otherwise applicable
deadlines where:
(A) the commission issues a subpoena and the
standing preliminary review committee's meeting schedule makes it
impossible both to provide a reasonable time for response and to
comply with the otherwise applicable deadlines; or
(B) the commission determines that, despite the
standing preliminary review committee's diligence and the
reasonable cooperation of the respondent, a matter is too complex
to resolve within the otherwise applicable deadlines without
compromising either the committee's investigation or the rights of
the respondent.
Sec. 161.162. PRELIMINARY REVIEW HEARING: PROCEDURE.
(a) The standing preliminary review committee shall conduct a
preliminary review hearing if:
(1) following the preliminary review, the standing
preliminary review committee and the respondent cannot agree to the
disposition of the complaint; or
(2) the respondent in writing requests a hearing.
(b) The standing preliminary review committee shall provide
written notice to the complainant and the respondent of the date,
time, and place the committee will conduct the preliminary review
hearing.
(c) At or after the time the standing preliminary review
committee provides notice of a preliminary review hearing, the
committee may submit to the complainant and the respondent written
questions and require those questions to be answered under oath
within a reasonable time. After receiving answers to any questions
submitted to the complainant under this subsection and before the
preliminary review hearing, the committee shall provide the
respondent both the questions and the answers to the questions
submitted by the complainant. This subsection may not be construed
to require a person to give evidence that violates the person's
right against self-incrimination under the United States
Constitution or the Texas Constitution.
(d) On the request of the respondent, the standing
preliminary review committee shall request that any information in
the possession or control of the complainant, including exculpatory
information, that is directly related to the complaint be provided
the respondent and the committee.
(e) During a preliminary review hearing, the standing
preliminary review committee:
(1) may consider all submitted evidence related to the
complaint;
(2) may review any documents or material related to
the complaint; and
(3) shall determine whether there is credible evidence
that provides cause for the committee to conclude that a violation
within the jurisdiction of the commission has occurred.
(f) During a preliminary review hearing, the respondent may
appear before the standing preliminary review committee with the
assistance of counsel, if desired by the respondent, and present
any relevant evidence, including a written statement.
Sec. 161.163. PRELIMINARY REVIEW HEARING: RESOLUTION.
(a) As soon as practicable after the completion of a preliminary
review hearing, the standing preliminary review committee by vote
shall issue a decision stating:
(1) whether there is credible evidence for the
committee to determine that a violation within the jurisdiction of
the commission has occurred and whether the violation is technical
or de minimis; or
(2) that there is insufficient evidence for the
committee to determine whether a violation within the jurisdiction
of the commission has occurred.
(b) If the standing preliminary review committee determines
that there is credible evidence for the committee to determine that
a violation has occurred, the committee shall resolve and settle
the complaint to the extent possible. If the committee
successfully resolves and settles the complaint, not later than the
10th business day after the date of the final resolution of the
complaint, the committee shall send to the complainant and the
respondent a copy of the order stating the committee's
determination and written notice of the resolution and the terms of
the resolution. If the committee is unsuccessful in resolving and
settling the complaint, the committee shall:
(1) order a formal hearing to be held in accordance
with Sections 161.164-161.167; and
(2) not later than the 10th business day after the date
of the order, send to the complainant and the respondent:
(A) a copy of the order;
(B) written notice of the date, time, and place
of the formal hearing;
(C) a statement of the nature of the alleged
violation;
(D) a description of the evidence of the alleged
violation;
(E) a copy of the complaint;
(F) a copy of the commission's rules of
procedure; and
(G) a statement of the rights of the respondent.
(c) If the standing preliminary review committee determines
that there is credible evidence for the committee to determine that
a violation within the jurisdiction of the commission has not
occurred, the committee shall:
(1) dismiss the complaint; and
(2) not later than the fifth business day after the
date of the dismissal, send to the complainant and the respondent a
copy of the order stating the committee's determination and written
notice of the dismissal and the grounds for dismissal.
(d) If the standing preliminary review committee determines
that there is insufficient credible evidence for the committee to
determine that a violation within the jurisdiction of the
commission has occurred, the commission may dismiss the complaint
or order a formal hearing under Sections 161.164-161.167. Not
later than the fifth business day after the date of the committee's
determination under this subsection, the committee shall send to
the complainant and the respondent a copy of the decision stating
the committee's determination and written notice of the grounds for
the determination.
Sec. 161.164. FORMAL HEARING: STANDARD OF EVIDENCE.
During a formal hearing, the commission shall determine by a
preponderance of the evidence whether a violation within the
jurisdiction of the commission has occurred.
Sec. 161.165. FORMAL HEARING: SUBPOENAS AND WITNESSES.
(a) A subpoena or other request to testify shall be served
sufficiently in advance of the scheduled appearance at a formal
hearing to allow a reasonable period, as determined by the
commission, for the person subpoenaed to prepare for the hearing
and to employ counsel if desired.
(b) Except as provided by Section 161.166(a)(1), the
commission may order that a person may not, except as specifically
authorized by the presiding officer, make public the name of a
witness subpoenaed by the commission before the date of that
witness's scheduled appearance.
(c) A witness may read a written statement or present a
brief oral opening statement at a formal hearing, subject to the
rules of evidence applicable to a contested case under Section
2001.081, Government Code.
(d) A person whose name is mentioned or who is identified or
referred to in testimony or in statements made by a commission
member, commission staff member, or witness and who reasonably
believes that the statement tends to adversely affect the person's
reputation may:
(1) request to appear personally before the commission
to testify in the person's own behalf; or
(2) file a sworn statement of facts relevant to the
testimony or statement that the person believes adversely affects
the person's reputation.
(e) A witness who testifies at a formal hearing must be
sworn.
Sec. 161.166. FORMAL HEARING: PROCEDURE. (a) Not later
than the fifth business day before the date of a scheduled formal
hearing or on the granting of a motion for discovery by the
respondent, the commission shall provide to the respondent:
(1) a list of proposed witnesses to be called at the
hearing;
(2) copies of all documents expected to be introduced
as exhibits at the hearing; and
(3) a brief statement as to the nature of the testimony
expected to be given by each witness to be called at the hearing.
(b) The respondent may not be compelled to give evidence or
testimony that violates the respondent's right against
self-incrimination under the United States Constitution or the
Texas Constitution.
(c) The commission shall adopt rules governing discovery,
hearings, and related procedures consistent with this chapter and
Chapter 2001, Government Code.
Sec. 161.167. FORMAL HEARING: RESOLUTION. (a) Not later
than the 30th business day after the date of the formal hearing, the
commission shall convene a meeting and by motion shall issue:
(1) a final decision stating the resolution of the
formal hearing; and
(2) a written report stating the commission's findings
of fact, conclusions of law, and recommendation of imposition of a
civil penalty, if any.
(b) Six members of the commission are required for a quorum
at a formal hearing.
(c) Not later than the 10th business day after the date the
commission issues the final decision and written report, the
commission shall:
(1) send a copy of the decision and report to the
complainant and to the respondent; and
(2) make a copy of the decision and report available to
the public during reasonable business hours.
Sec. 161.168. STATUS OF COMPLAINT. (a) The commission
shall keep an information file about each sworn or other complaint
filed with the commission. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the
commission;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the commission closed the file without taking action other than
to investigate the complaint.
(b) The commission shall provide to the person filing the
complaint and to each person who is a subject of the complaint a
copy of the commission's policies and procedures relating to
complaint investigation and resolution.
(c) In addition to the notice required by Sections 161.156
and 161.167, the commission, at least quarterly until final
disposition of a complaint, shall notify the person who filed the
complaint and each person who is a subject of the complaint of the
status of the sworn complaint.
(d) The commission shall resolve a complaint within six
months of its receipt unless it makes a determination that
additional time is required to resolve the matter. On a
determination that additional time is required, the commission may
extend the investigation in three-month increments. Each extension
requires separate approval by the commission.
(e) If the commission does not resolve the matter within six
months or within an authorized extension, the complaint shall be
deemed to have been dismissed without prejudice.
Sec. 161.169. EXTENSION OF DEADLINE. The commission may,
on its own motion or on the reasonable request of a respondent,
extend any deadline for action relating to a sworn complaint,
preliminary review hearing, or formal hearing.
Sec. 161.170. SUBPOENA. (a) In connection with a formal
hearing, the commission, as authorized by this chapter, may
subpoena and examine witnesses and documents that directly relate
to a sworn complaint.
(b) In connection with a preliminary review, the
commission, for good cause and as authorized by this chapter, may
subpoena documents and witnesses on application by the commission
staff and a motion adopted by a vote of at least five members of the
commission, for the purpose of attempting to obtain from the
documents or witnesses specifically identified information, if the
commission reasonably believes that the specifically identified
information:
(1) is likely to be determinative as to whether the
subject of an investigation has violated a provision of the ethics
code;
(2) can be determined from the documents or is known by
the witnesses; and
(3) is not reasonably available through a less
intrusive means.
(c) The commission shall adopt procedures for the issuance
of subpoenas under this section.
(d) Section 2001.089, Government Code, applies to a
subpoena issued under this subchapter. On the request of the
respondent, the commission shall subpoena any information in the
possession or control of any person identified in the request,
including exculpatory information, that is directly related to the
complaint and provide the information to the respondent.
(e) A copy of a subpoena issued under this section must be
delivered to the respondent.
(f) At the written request of at least five members of the
commission, a peace officer shall serve a subpoena of the
commission in the manner prescribed for service of a district court
subpoena.
(g) If a person to whom a subpoena is directed refuses to
appear, refuses to answer inquiries, or fails or refuses to produce
books, records, or other documents that were under the person's
control when the demand was made, the commission shall report that
fact to a district court in the county. The district court shall
enforce the subpoena by attachment proceedings for contempt in the
same manner as the court enforces a subpoena issued by the court.
(h) A respondent has the right to quash a subpoena in a
district court in the county as provided by law.
(i) A subpoenaed witness who attends a commission hearing is
entitled to the same mileage and per diem payments as a witness who
appears before a grand jury. A person who provides subpoenaed
documents to the commission is entitled to reimbursement from the
commission for the person's reasonable cost of producing the
documents.
Sec. 161.171. STATUS OF COMPLAINANT. The complainant is
not a party to a preliminary review, preliminary review hearing, or
formal hearing under this subchapter.
Sec. 161.172. APPLICABILITY OF OTHER ACTS. (a) Except as
provided by Section 161.173(b), Chapter 552, Government Code, does
not apply to documents or any additional evidence relating to the
processing, preliminary review, preliminary review hearing, or
resolution of a sworn complaint.
(b) Chapter 551, Government Code, does not apply to the
processing, preliminary review, preliminary review hearing, or
resolution of a sworn complaint, but does apply to a formal hearing
held under Sections 161.164-161.167.
(c) Subchapters C-H, Chapter 2001, Government Code, apply
only to a formal hearing under this subchapter, the resolution of a
formal hearing, and the appeal of a final order of the commission,
and only to the extent consistent with this chapter.
Sec. 161.173. CONFIDENTIALITY; OFFENSE. (a) Except as
provided by Subsection (b), (c), or (m), proceedings at a
preliminary review hearing performed by the commission, a sworn
complaint, and documents and any additional evidence relating to
the processing, preliminary review, preliminary review hearing, or
resolution of a sworn complaint are confidential and may not be
disclosed unless entered into the record of a formal hearing or a
judicial proceeding, except that a document or statement that was
previously public information remains public information.
(b) An order issued by the commission after the completion
of a preliminary review or hearing determining that a violation
other than a technical or de minimis violation has occurred is not
confidential.
(c) Commission staff may, for the purpose of investigating a
sworn complaint, disclose to the complainant, the respondent, or a
witness information that is otherwise confidential and relates to
the sworn complaint if:
(1) the employee makes a good faith determination that
the disclosure is necessary to conduct the investigation;
(2) the employee's determination under Subdivision (1)
is objectively reasonable;
(3) the commission specifically authorizes the
disclosure; and
(4) the employee discloses only the information
necessary to conduct the investigation.
(d) A person commits an offense if the person intentionally:
(1) destroys, mutilates, or alters information
obtained under this chapter; or
(2) removes information obtained under this chapter
without permission as provided by this chapter.
(e) An offense under Subsection (d) is a misdemeanor
punishable by:
(1) a fine of not less than $25 or more than $4,000;
(2) confinement in the county jail for not less than
three days or more than three months; or
(3) both the fine and confinement.
(f) A person commits an offense if the person distributes
information considered confidential under the terms of this
chapter.
(g) A person who obtains access to confidential information
under this chapter commits an offense if that person knowingly:
(1) uses the confidential information for a purpose
other than the purpose for which the information was received or for
a purpose unrelated to this chapter, including solicitation of
political contributions or solicitation of clients;
(2) permits inspection of the confidential
information by a person who is not authorized to inspect the
information; or
(3) discloses the confidential information to a person
who is not authorized to receive the information.
(h) An offense under Subsection (f) or (g) is a misdemeanor
punishable by:
(1) a fine of not more than $1,000;
(2) confinement in the county jail for not more than
six months; or
(3) both the fine and confinement.
(i) If conduct that constitutes an offense under this
section also constitutes an offense under the Penal Code, including
under Section 37.10 or 39.06 of that code, the person may be
prosecuted under this section or the Penal Code, as applicable.
(j) A violation under this section constitutes official
misconduct.
(k) In addition to other penalties, the respondent may
commence a civil action for damages on the respondent's own behalf
against any person who is alleged to have disclosed information
made confidential by this subchapter. Any action under this
chapter must be brought in a district court in the county. The
court may award costs and attorney's fees.
(l) A county employee is subject to discipline, including
termination of employment, for disclosing confidential information
under this chapter.
(m) The commission may disclose confidential information in
making a referral to a prosecuting attorney concerning an offense
under this section.
(n) A county employee who discloses confidential
information in compliance with Subsection (c) or (m) is not subject
to Subsections (d)-(l).
Sec. 161.174. AVAILABILITY OF COMMISSION ORDERS ON
INTERNET. (a) As soon as practicable following a preliminary
review, preliminary review hearing, or formal hearing at which the
commission determines that a person has committed a violation
within the commission's jurisdiction, the commission shall make
available on the Internet:
(1) a copy of the commission's order stating the
determination; or
(2) a summary of the commission's order.
(b) This section does not apply to a determination of a
violation that is technical or de minimis.
[Sections 161.175-161.200 reserved for expansion]
SUBCHAPTER E. ENFORCEMENT
Sec. 161.201. ORDER. The commission may:
(1) issue and enforce a cease and desist order to stop
a violation;
(2) issue an affirmative order to require compliance
with the laws administered and enforced by the commission; and
(3) issue an order of public censure with or without a
civil penalty imposed under Section 161.202.
Sec. 161.202. CIVIL PENALTY FOR DELAY OR VIOLATION.
(a) The commission may impose a civil penalty of not more than $500
for each delay in complying with a commission order.
(b) The commission may impose a civil penalty of not more
than $4,000 for a violation of the ethics code adopted by the
commission.
(c) A penalty paid under this section shall be deposited to
the credit of the general fund of the county.
(d) This section is cumulative of any other available
sanctions under this chapter.
Sec. 161.203. WAIVER OR REDUCTION OF PENALTY. (a) A
person may request the waiver or reduction of a civil penalty by
submitting an affidavit to the commission that states the filer's
reasons for requesting a waiver or reduction.
(b) The commission may waive or reduce a civil penalty if
the commission finds that a waiver or reduction is in the public
interest and in the interest of justice. The commission shall
consider the following before acting to waive or reduce a civil
penalty:
(1) the facts and circumstances supporting the
person's request for a waiver or reduction;
(2) the seriousness of the violation, including the
nature, circumstances, consequences, extent, and gravity of the
violation, and the amount of the penalty;
(3) any history of previous violations by the person;
(4) the demonstrated good faith of the person,
including actions taken to rectify the consequences of the
violation;
(5) the penalty necessary to deter future violations;
and
(6) any other matter that justice may require.
(c) After hearing the waiver request, the commission may
affirm, reduce, or waive the civil penalty.
Sec. 161.204. NOTIFICATION OF REGULATORY OR SUPERVISORY
ENTITY. The commission may notify the appropriate regulatory or
supervisory entity, including any agency, the State Commission on
Judicial Conduct, or the State Bar of Texas, of a violation of the
ethics code adopted by the commission.
Sec. 161.205. CIVIL PENALTY FOR FRIVOLOUS OR BAD-FAITH
COMPLAINT. (a) The commission may impose a civil penalty of not
more than $4,000 for the filing of a frivolous or bad-faith
complaint. In this subsection, "frivolous complaint" means a
complaint that is groundless and brought in bad faith or is
groundless and brought for the purpose of harassment.
(b) In addition to other penalties, the respondent may
commence a civil action on the respondent's own behalf against any
person who filed a frivolous complaint against the respondent. Any
action under this chapter shall be brought in a district court in
the county. The court may award costs and attorney's fees.
(c) A person may file a sworn complaint with the commission,
in accordance with Section 161.155, alleging that a complaint
relating to that person filed with the commission is frivolous or
brought in bad faith. A complaint may be filed under this
subsection without regard to whether the complaint alleged to be
frivolous or brought in bad faith is pending before the commission
or has been resolved. The commission shall act on a complaint made
under this subsection as provided by Subchapter D.
Sec. 161.206. FACTORS CONSIDERED FOR ASSESSMENT OF
SANCTION. The commission shall consider the following factors in
assessing a sanction:
(1) the seriousness of the violation, including the
nature, circumstances, consequences, extent, and gravity of the
violation;
(2) the history and extent of previous violations;
(3) the demonstrated good faith of the violator,
including actions taken to rectify the consequences of the
violation;
(4) the penalty necessary to deter future violations;
and
(5) any other matters that justice may require.
Sec. 161.207. APPEALS. (a) A respondent may appeal the
decision by filing a petition in a district court in the county
within 30 days after the date of the decision.
(b) An appeal brought under this section is not limited to
questions of law, and the substantial evidence rule does not apply.
The action shall be determined by trial de novo. The reviewing
court shall try all issues of fact and law in the manner applicable
to other civil suits in this state but may not admit in evidence the
fact of prior action by the commission or the nature of that action,
except to the limited extent necessary to show compliance with
statutory provisions that vest jurisdiction in the court. A party
is entitled, on demand, to a jury determination of any issue of fact
on which a jury determination is available in other civil suits in
this state.
(c) If the district court renders judgment for the
petitioner, and the petitioner is a county employee, the court may
order reinstatement of the county employee, payment of back pay, or
other appropriate relief.
(d) If the district court renders judgment for the
petitioner, the court may order appropriate relief, including costs
and attorney's fees.
Sec. 161.208. DELIVERY OF RECORD TO REVIEWING COURT.
(a) After service of the petition on the commission and within the
time permitted for filing an answer or within additional time
allowed by the court, the commission shall send to the reviewing
court the original or a certified copy of the entire record of the
proceeding under review.
(b) The record shall be filed with the clerk of the court.
The record may be shortened by stipulation of all parties to the
review proceedings. The court may assess additional costs against
a party who unreasonably refuses to stipulate to limit the record,
unless the party pays all costs of record preparation.
(c) The court may require or permit later corrections or
additions to the record.
Sec. 161.209. COST OF PREPARING COMMISSION RECORD.
(a) The commission may require a party who appeals a final
decision under Section 161.207 to pay one-half of the cost of
preparation of the original or a certified copy of the record of the
commission proceeding that is required to be sent to the reviewing
court.
(b) A charge imposed under this section is a court cost and
may be assessed by the court in accordance with the Texas Rules of
Civil Procedure.
Sec. 161.210. COLLECTIONS. The county attorney may collect
a fine or other penalty imposed by the commission under this chapter
in the same manner as provided for the collection of a debt owed to
the county.
[Sections 161.211-161.300 reserved for expansion]
SUBCHAPTER F. DISSOLUTION OF COMMISSION
Sec. 161.301. PETITION FOR DISSOLUTION OF COMMISSION. If,
after an ethics commission created pursuant to Section 161.052 has
been in effect for at least one year, 10 percent of the qualified
voters of the county petition the commissioners court to dissolve
the commission, the commissioners court shall call an election to
determine whether the commission will be dissolved.
Sec. 161.302. DISSOLUTION ELECTION. (a) An election under
this subchapter must be held in the manner provided for an election
to create a county ethics commission.
(b) The ballot for the election shall be printed to provide
for voting for or against the proposition: "Dissolution of the
county ethics commission."
Sec. 161.303. DISSOLUTION OF COMMISSION. If the
proposition is approved by a majority of the qualified voters
voting at the election, the commissioners court shall declare the
result and by order dissolve the ethics commission. A copy of the
order dissolving the commission shall be placed in the minutes of
the court's proceedings.
Sec. 161.304. SAVING PROVISIONS. The dissolution of a
county ethics commission under this subchapter does not affect:
(1) the prior operation of the ethics code adopted by
the commission or any prior action taken under it; or
(2) any penalty, forfeiture, or punishment incurred
for a violation of the ethics code before the effective date of the
dissolution.
SECTION 2. This Act takes effect September 1, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1368 passed the Senate on
April 9, 2009, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 29, 2009, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1368 passed the House, with
amendments, on May 26, 2009, by the following vote: Yeas 135,
Nays 4, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor