CHAPTER 161. COUNTY ETHICS COMMISSION IN CERTAIN COUNTIES
LOCAL GOVERNMENT CODE
TITLE 5. MATTERS AFFECTING PUBLIC OFFICERS AND EMPLOYEES
SUBTITLE B. COUNTY OFFICERS AND EMPLOYEES
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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."
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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).
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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).
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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.
Added by Acts 2009, 81st Leg., R.S., Ch.
799, Sec. 1, eff. September 1, 2009.
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 certi