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AN ACT
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relating to the creation of a county ethics commission in certain |
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counties; providing civil and criminal penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle B, Title 5, Local Government Code, is |
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amended by adding Chapter 161 to read as follows: |
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CHAPTER 161. COUNTY ETHICS COMMISSION IN CERTAIN COUNTIES |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 161.001. APPLICABILITY OF CHAPTER. This chapter |
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applies only to a county that: |
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(1) has a population of 650,000 or more; |
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(2) is located on the international border; and |
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(3) before September 1, 2009, had a county ethics |
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board appointed by the commissioners court. |
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Sec. 161.002. DEFINITIONS. In this chapter: |
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(1) "Commission" means a county ethics commission |
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created under this chapter. |
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(2) "Commission staff" means county employees |
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assigned to provide administrative support to the commission. |
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(3) "Communicates directly with" has the meaning |
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assigned by Section 305.002, Government Code. |
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(4) "County affiliate" means a person described and |
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determined by order of the commissioners court on recommendation of |
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the commission. As determined by the commissioners court, the term |
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includes: |
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(A) any person whose goods and services are |
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purchased under the terms of a purchase order or contractual |
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agreement with the county; and |
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(B) as determined by the county, any other |
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persons doing business with the county. |
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(5) "County employee" means a person employed by the |
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county or a county officer and includes a person employed in the |
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judicial branch of the county government who is not subject to the |
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Code of Judicial Conduct. The term does not include a county |
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officer. |
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(6) "County office" means a position held by a county |
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officer. |
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(7) "County officer" means a county judge, county |
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commissioner, county attorney, sheriff, county tax |
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assessor-collector, county clerk, district clerk, county |
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treasurer, county auditor, county purchasing agent, and constable. |
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(8) "County public servant" means a person elected, |
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selected, appointed, employed, or otherwise designated as one of |
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the following, even if the person has not yet qualified for or |
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assumed the duties of office: |
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(A) a county officer or county employee; |
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(B) a person appointed by the commissioners court |
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or a county officer to a position on one of the following, whether |
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the position is compensated or not: |
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(i) an authority, board, bureau, |
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commission, committee, council, department, district, division, or |
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office of the county; or |
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(ii) a multi-jurisdictional board; |
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(C) an attorney at law or notary public when |
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participating in the performance of a governmental function; |
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(D) a candidate for nomination or election to an |
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elected county office; or |
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(E) a person who is performing a governmental |
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function under a claim of right although the person is not legally |
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qualified or authorized to do so. |
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(9) "Lobbyist" means a person who, for compensation in |
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excess of an amount established by the commission, communicates |
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directly with a county officer or county employee to influence |
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official action. The term does not include an attorney who |
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communicates directly with a county officer or county employee to |
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the extent that such communication relates to the attorney's |
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representation of a party in a civil or criminal proceeding. |
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Sec. 161.003. CONFLICT WITH CIVIL SERVICE AGREEMENT. |
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(a) This chapter may not be construed to affect: |
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(1) the terms of an agreement authorized by Chapter |
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174 between the county and county employees; or |
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(2) any provision of a civil service statute |
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applicable to a county employee. |
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(b) If an agreement authorized by Chapter 174 or a civil |
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service statute applicable to a county employee conflicts with this |
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chapter or an ethics code adopted or enforced under this chapter, |
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the agreement or civil service statute prevails. |
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[Sections 161.004-161.050 reserved for expansion] |
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SUBCHAPTER B. CREATION OF COMMISSION; APPOINTMENT OF COMMISSION |
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MEMBERS |
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Sec. 161.051. CREATION OF COMMISSION BY ORDER. (a) The |
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commissioners court of a county, by an order adopted by a majority |
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of the court's full membership, may create a county ethics |
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commission. |
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(b) A copy of an order adopted under this section shall be |
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placed in the minutes of the court's proceedings. The copy of the |
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order is public information. |
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Sec. 161.052. CREATION OF COMMISSION BY ELECTION. (a) A |
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county ethics commission may be created by approval of the system by |
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a majority of the qualified voters of the county voting at an |
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election called for that purpose. |
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(b) The commissioners court by order may call an election on |
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the question of the creation of a county ethics commission. |
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(c) The commissioners court shall hold the election called |
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under this section on the first authorized uniform election date |
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prescribed by Chapter 41, Election Code, that allows sufficient |
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time for publication of the notice required by Subsection (d) and |
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for compliance with any other requirements established by law. |
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(d) In addition to the notice required by Chapter 4, |
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Election Code, the commissioners court must publish in a newspaper |
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of general circulation in the county, and on the home page of the |
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county's Internet website, a substantial copy of the order calling |
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the election. The first newspaper publication must be made on or |
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before the 15th day before the date of the election and continue |
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once a week for two consecutive weeks, and the notice on the |
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county's Internet website shall remain on the home page each day |
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beginning not later than the 16th day before the election and ending |
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on the date of the election. |
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Sec. 161.053. BALLOT. The commissioners court shall order |
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the ballot at the election to be printed to provide for voting for |
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or against the proposition: "Creation of a county ethics |
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commission." |
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Sec. 161.054. RESULT OF ELECTION. If the proposition is |
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approved, the commissioners court shall declare the result and by |
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order create the county ethics commission. A copy of the order |
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creating the commission shall be placed in the minutes of the |
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court's proceedings. |
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Sec. 161.055. APPOINTMENT OF COMMISSION. (a) The |
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commission is composed of: |
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(1) five members, each of whom is appointed by the |
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county judge or a county commissioner; and |
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(2) five members appointed by the commissioners court, |
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with one member appointed from a list of nominees submitted by each |
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of the following entities: |
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(A) the county civil service commission; |
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(B) a bar association in the county; |
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(C) the sheriff's civil service commission; |
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(D) a dispute resolution center in the county |
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that is affiliated with a council of governments; and |
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(E) a human resources management association in |
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the county. |
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(a-1) The commissioners court shall designate the entities |
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described by Subsections (a)(2)(B), (D), and (E) that may submit |
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nominees for membership on the commission. If a designated entity |
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does not wish to submit nominees, the commissioners court shall |
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select a similar entity that has experience with grievance or |
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mediation structures or processes. |
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(b) Not later than the 60th day after the date of the order |
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creating the commission as provided in Section 161.051 or Section |
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161.054: |
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(1) the county judge and each county commissioner |
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shall each appoint one member of the commission; and |
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(2) each entity described by Subsection (a)(2) or |
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alternate entity designated under Subsection (a-1) shall deliver to |
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the commissioners court the entity's nominees for membership on the |
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commission. |
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(c) The commissioners court shall set the date for the first |
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meeting of the initial members. The first meeting must be set not |
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earlier than the 60th day after the date of the order creating the |
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commission and not later than the 90th day after the date of that |
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order. |
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Sec. 161.056. ELIGIBILITY. (a) To be eligible for |
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appointment to the commission, a person must: |
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(1) be at least 18 years old; |
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(2) be a property taxpayer in the county; and |
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(3) have resided in the county for the two years |
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immediately preceding the date on which the person's term will |
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begin. |
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(b) A person is not eligible for appointment to the |
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commission if the person is: |
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(1) an elected officer; |
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(2) a county employee; |
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(3) a county affiliate; |
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(4) a person employed as a lobbyist; |
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(5) a person convicted of a misdemeanor involving |
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moral turpitude or a felony; or |
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(6) a person who is delinquent in payment of local, |
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state, or federal taxes. |
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Sec. 161.057. TERMS. (a) Members of the commission serve |
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terms of two years beginning on February 1 of each odd-numbered |
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year. |
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(b) A member may serve more than one term. |
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Sec. 161.058. VACANCIES. (a) A vacancy on the commission |
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shall be filled for the remainder of the unexpired term as follows: |
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(1) if the vacancy involves a member appointed by the |
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county judge or a county commissioner, the vacancy is filled, |
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except as provided by Subsection (b), by appointment of that |
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officer or the officer's successor in office; or |
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(2) if the vacancy involves a member appointed under |
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Section 161.055(a)(2), the vacancy is filled as provided by that |
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section for an appointment to a full term. |
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(b) If the county judge or county commissioner, as |
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applicable, does not fill the vacancy before the 60th day after the |
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date the position becomes vacant, the commission may fill the |
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vacancy by a majority vote of the remaining members. |
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Sec. 161.059. MEETINGS. (a) The commission shall meet on |
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a regular basis. |
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(b) The commission is a governmental body for purposes of |
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Chapter 551, Government Code. |
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(c) Except as otherwise provided by this chapter, a majority |
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of the commission constitutes a quorum. |
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Sec. 161.0591. CHAIR. (a) The position of chair |
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alternates every six months between members appointed under Section |
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161.055(a)(1) and members appointed under Section 161.055(a)(2) |
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and rotates so that each position on the commission serves as chair, |
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as follows: |
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(1) the rotation of members appointed under Section |
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161.055(a)(1) begins with the member appointed by the county judge, |
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followed by the members appointed by the county commissioners in |
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order of precinct number; and |
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(2) the rotation of members appointed under Section |
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161.055(a)(2) begins with the member appointed under Section |
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161.055(a)(2)(A), followed by the members appointed under Sections |
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161.055(a)(2)(B), (C), (D), and (E) in that order. |
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(b) The member serving as chair may not vote on a matter |
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before the commission except to break a tie vote. |
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Sec. 161.060. REMOVAL OF COMMISSION MEMBER. A member of the |
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commission is a county officer described by Section 87.012(15) and |
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may be removed as provided by Chapter 87 if, after a trial, the jury |
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finds good cause for removal, including: |
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(1) failure to pay local, state, or federal taxes when |
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due; |
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(2) violation of the ethics code adopted by the |
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commission; |
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(3) conviction of a felony or misdemeanor; |
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(4) excessive absenteeism as determined by the |
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commission; and |
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(5) official misconduct. |
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Sec. 161.061. LEGAL REPRESENTATION. The county attorney, |
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or district attorney, or criminal district attorney, as |
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appropriate, with the duty to represent the county in civil matters |
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shall represent the commission in all legal matters. |
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[Sections 161.062-161.100 reserved for expansion] |
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SUBCHAPTER C. POWERS |
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Sec. 161.101. GENERAL POWERS. (a) The commission shall |
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adopt, publish, and enforce an ethics code governing county public |
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servants. |
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(b) The commission may adopt or use as a guide any ethics law |
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or rule of the United States, this state, or a political subdivision |
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in this state to the extent that the law or rule promotes the |
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purposes of this chapter and serves the needs of the county. For |
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purposes of Section 161.002(9), in determining the applicable |
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amount of compensation of a person who communicates directly with a |
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county officer or employee to influence official action and engages |
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in such communication as part of the person's regular employment, |
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the commission shall adopt rules that are substantially similar to |
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the rules or interpretations of the Texas Ethics Commission under |
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Chapter 305, Government Code, to calculate the compensation. |
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(c) The commission may adopt bylaws, rules, forms, |
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policies, or procedures to assist in the administration of the |
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commission's duties under this chapter. The commission may be |
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guided by Robert's Rules of Order to the extent that it does not |
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conflict with the constitution and laws of the United States and |
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this state or conflict with other guidelines adopted by the |
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commission. |
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(d) The commission shall be assigned staff by the county and |
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provided access to county resources to assist in its duties. |
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(e) The commission shall develop and implement policies |
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that provide the public with information on the commission and the |
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ethics code. |
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(f) The commission shall enforce the provisions of the |
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ethics code by issuing appropriate orders or recommendations or by |
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imposing appropriate penalties. |
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Sec. 161.102. ADVISORY OPINIONS. On the request of any |
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person covered by the ethics code adopted by the commission, the |
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commission may issue a written ethics advisory opinion regarding |
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the application of the ethics code to a specified existing or |
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hypothetical factual situation. The commission may not issue an |
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opinion that includes the name of any person who may be affected by |
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the opinion. The name of the person requesting the opinion shall be |
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deemed confidential. |
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Sec. 161.103. PUBLIC INTEREST INFORMATION. (a) The |
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commission shall develop plain-language materials as described by |
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this section. The commission shall post the information on the |
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county's Internet website and make the information otherwise |
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available to the public. |
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(b) The materials must include: |
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(1) a description of: |
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(A) the commission's responsibilities; |
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(B) the types of conduct that constitute a |
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violation of the ethics code adopted by the commission; |
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(C) the types of sanctions the commission may |
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impose; |
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(D) the commission's policies and procedures |
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relating to complaint investigation and resolution; and |
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(E) the duties of a person filing a complaint |
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with the commission; and |
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(2) a diagram showing the basic steps in the |
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commission's procedures relating to complaint investigation and |
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resolution. |
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(c) The commission shall provide the materials described by |
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this section to each complainant and respondent. |
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(d) The commission shall adopt a policy to effectively |
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distribute materials as required by this section. |
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Sec. 161.104. COMMISSION MEMBER EDUCATION AND TRAINING. |
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(a) Not later than the 60th day after the date a person is |
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appointed to the commission, the person must complete training on |
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the following matters: |
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(1) the legislation that created the commission; |
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(2) the role and functions of the commission; and |
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(3) the requirements of: |
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(A) the open meetings law, Chapter 551, |
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Government Code; |
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(B) the public information law, Chapter 552, |
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Government Code; and |
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(C) other laws relating to public officials, |
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including conflict-of-interest laws. |
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(b) A member of the commission must complete subsequent |
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training programs on the following matters: |
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(1) the ethics code adopted by the commission; and |
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(2) the procedural rules adopted by the commission. |
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(c) A person who is appointed to and qualifies for office as |
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a member of the commission may not vote, deliberate, or be counted |
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as a member in attendance at a meeting of the commission until the |
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person completes a training program that complies with this |
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section. |
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Sec. 161.105. EDUCATION AND TRAINING FOR PERSONS COVERED BY |
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ETHICS CODE. (a) The commission and commission staff shall |
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provide periodic training for persons covered by the ethics code |
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adopted by the commission on at least a quarterly basis. |
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(b) The training program must provide information |
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regarding: |
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(1) the ethics code; |
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(2) the role and functions of the commission; and |
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(3) plain-language materials as further described by |
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Section 161.103. |
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(c) In addition to the qualifications under Subchapter C, |
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Chapter 262, before submitting a bid, responding to a request for |
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qualifications or proposals, or otherwise contracting with the |
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county, an officer, principal, or other person with the authority |
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to bind the vendor shall complete training on the ethics code. |
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(d) A lobbyist intending to meet with a person covered by |
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the ethics code shall complete training on the ethics code. |
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Sec. 161.106. CERTAIN DISCUSSIONS OF PENDING COMPLAINTS |
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PROHIBITED. Until a sworn complaint alleging a violation of the |
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ethics code is resolved, a member of the commission may not discuss |
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the complaint with a member of the commissioners court. |
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[Sections 161.107-161.150 reserved for expansion] |
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SUBCHAPTER D. COMPLAINT PROCEDURES AND HEARINGS |
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Sec. 161.151. DEFINITIONS. In this subchapter: |
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(1) "Category One violation" means a violation of the |
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ethics code adopted by the commission as to which it is generally |
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not difficult to ascertain whether the violation occurred or did |
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not occur, including: |
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(A) the failure by a person required to file a |
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statement or report required under the ethics code to: |
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(i) file the statement or report in a manner |
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that complies with applicable requirements; or |
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(ii) file the statement or report in a |
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timely manner; |
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(B) a misrepresentation in a report required |
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under the ethics code; or |
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(C) a failure to respond in a timely manner to a |
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written notice under Section 161.156(b). |
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(2) "Category Two violation" means a violation of the |
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ethics code adopted by the commission that is not a Category One |
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violation. |
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Sec. 161.152. COMPLAINT PROCEDURES AND HEARINGS. The |
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commission shall adopt the complaint procedures and hearings set |
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forth in this subchapter. The commission may adopt additional |
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procedures not in conflict with this subchapter. |
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Sec. 161.153. HEARINGS AND SETTLEMENT. (a) The commission |
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may: |
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(1) hold a hearing on a sworn complaint and render a |
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decision on a complaint or report of a violation as provided by this |
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chapter; and |
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(2) agree to the settlement of issues. |
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(b) The commission may not: |
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(1) consider a complaint or vote to investigate a |
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matter outside the commission's jurisdiction; or |
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(2) investigate any matter except in response to a |
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sworn complaint. |
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Sec. 161.154. CATEGORIZATION OF VIOLATIONS. An allegation |
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of a violation listed as a Category One violation shall be treated |
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as a Category Two violation if the commission at any time determines |
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that: |
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(1) the allegation arises out of the same set of facts |
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as those that give rise to an allegation of a Category Two |
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violation, and the interests of justice or efficiency require |
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resolution of the allegations together; or |
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(2) the facts and law related to a particular |
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allegation or a defense to the allegation present a level of |
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complexity that prevents resolution through the preliminary review |
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procedures for Category One violations prescribed by Section |
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161.159(a). |
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Sec. 161.155. FILING OF COMPLAINT; CONTENTS. (a) An |
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individual may file with the commission a sworn complaint, on a form |
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prescribed by the commission, alleging that a person subject to the |
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ethics code has violated the ethics code. The commission shall make |
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the complaint form available on the county website. |
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(b) A complaint filed under this section must be in writing |
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and under oath and must set forth in simple, concise, and direct |
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statements: |
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(1) the name of the complainant; |
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(2) the street or mailing address of the complainant; |
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(3) the name of each respondent; |
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(4) the position or title of each respondent; |
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(5) the nature of the alleged violation, including if |
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possible the specific rule or provision of the ethics code alleged |
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to have been violated; |
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(6) a statement of the facts constituting the alleged |
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violation and the dates on which or period of time in which the |
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alleged violation occurred; and |
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(7) all documents or other material available to the |
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complainant that are relevant to the allegation, a list of all |
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documents or other material within the knowledge of the complainant |
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and available to the complainant that are relevant to the |
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allegation but that are not in the possession of the complainant, |
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including the location of the documents, if known, and a list of all |
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documents or other material within the knowledge of the complainant |
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that are unavailable to the complainant and that are relevant to the |
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complaint, including the location of the documents, if known. |
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(c) The complaint must be accompanied by an affidavit |
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stating either that the information contained in the complaint is |
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correct or that the complainant has good reason to believe and does |
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believe that the violation occurred. If the complaint is based on |
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information and belief, the complaint shall state the source and |
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basis of the information and belief. The complainant may swear to |
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the facts by oath before a notary public or other authorized |
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official. |
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(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 |