Bill Text: TX HB3481 | 2011-2012 | 82nd Legislature | Introduced

---

Bill Title: Relating to the sworn complaint procedures of the Texas Ethics Commission.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2011-03-18 - Referred to Elections [HB3481 Detail]

Download: Texas-2011-HB3481-Introduced.html

---

82R9095 CAE-D
By: Christian H.B. No. 3481

A BILL TO BE ENTITLED
AN ACT
relating to the sworn complaint procedures of the Texas Ethics
Commission.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 571.031, Government Code, is amended to
read as follows:
Sec. 571.031. RECORDS. Except as provided by Section
571.161 [Sections 571.139(a) and 571.140], Chapter 552 applies to
all records of the commission.
SECTION 2. Section 571.032(b), Government Code, is amended
to read as follows:
(b) After written notice under Section 571.153(b)
[571.123(b)] regarding the filing of a sworn complaint has been
sent to a person in the manner required by Subsection (a), the
commission may send the person any additional notices regarding the
complaint by regular mail unless the person has notified the
commission to send all notices regarding the complaint by
registered or certified mail, restricted delivery, return receipt
requested.
SECTION 3. Chapter 571, Government Code, is amended by
adding Subchapter E-1 to read as follows:
SUBCHAPTER E-1. COMPLAINT, INVESTIGATION,
AND HEARING PROCEDURES
Sec. 571.151. GENERAL POWERS. (a) The commission may:
(1) hold hearings, on its own motion adopted by an
affirmative vote of at least four commission members or on a sworn
complaint, and render decisions on complaints or reports of
violations as provided by this chapter; and
(2) agree to the settlement of issues.
(b) The commission may not consider a complaint or vote to
investigate a matter outside the commission's jurisdiction.
Sec. 571.152. FILING OF COMPLAINT; CONTENTS. (a) An
individual may file with the commission a sworn complaint alleging
that a person subject to a law administered and enforced by the
commission has violated a rule adopted by or a law administered and
enforced by the commission. A sworn complaint must be filed on a
form prescribed by the commission. The commission shall make the
complaint form available on the Internet. The form prescribed by
the commission must require the complainant to provide the
following information for both the complainant and the respondent:
(1) the person's name;
(2) the person's telephone number;
(3) the person's e-mail address, if known; and
(4) the physical address of the person's home or
business.
(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 law 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) To be eligible to file a sworn complaint with the
commission, an individual must be a resident of this state or must
own real property in this state. A copy of one of the following
documents must be attached to the complaint:
(1) the complainant's driver's license or personal
identification certificate issued under Chapter 521,
Transportation Code, or commercial driver's license issued under
Chapter 522, Transportation Code;
(2) a utility bill, bank statement, government check,
paycheck, or other government document that:
(A) shows the name and address of the
complainant; and
(B) is dated not more than 30 days before the date
on which the complaint is filed; or
(3) a property tax bill, notice of appraised value, or
other government document that:
(A) shows the name of the complainant;
(B) shows the address of real property in this
state; and
(C) identifies the complainant as the owner of
the real property.
(d) The complaint must be accompanied by an affidavit
stating that the information contained in the complaint is either
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.
(e) The complaint must state on its face an allegation that,
if true, constitutes a violation of a rule adopted by or a law
administered and enforced by the commission.
Sec. 571.153. PROCESSING OF COMPLAINT. (a) On receipt of a
sworn complaint, the general counsel of the commission shall
determine whether the complaint substantially complies with the
form requirements of Section 571.152.
(b) Not later than the fifth business day after the date a
complaint is filed, the general counsel shall send written notice
of the complaint to the respondent if the general counsel
determines that the complaint substantially complies with the form
requirements. The written notice to the respondent must:
(1) include a copy of the complaint; and
(2) state the procedures that the commission will
follow regarding the complaint.
(c) If the general counsel determines that the complaint
does not comply with the form requirements, the commission shall
dismiss the complaint and send written notice to the complainant
and the respondent of the dismissal.
Sec. 571.154. DISPUTE OF COMPLAINT BY RESPONDENT. (a) Not
later than the 30th day after the date the commission sends the
notice required by Section 572.153, the respondent may submit a
letter stating reasons the respondent believes the commission
should dismiss the complaint without further action.
(b) The commission may not take any action regarding the
complaint until the commission has reviewed the letter submitted by
the respondent.
(c) If the commission finds that the respondent has shown
that a violation has not occurred, the commission shall dismiss the
complaint.
(d) The commission may not take any action on a complaint
until:
(1) a letter submitted by the respondent has been
investigated as provided by Section 571.155; or
(2) the 30th day after the date notice was sent as
provided by Section 571.153, if the respondent has not submitted a
letter as provided by this section.
Sec. 571.155. GENERAL COUNSEL RECOMMENDATION. (a) On the
earlier of the receipt of a letter under Section 571.154 or on the
30th day after the date the commission sends the notice required by
Section 571.153 if a letter has not been submitted, the general
counsel shall recommend that the commission:
(1) dismiss the complaint; or
(2) investigate the complaint if the general counsel
believes that the respondent has committed a violation.
(b) After reviewing the complaint and the recommendation of
the general counsel, the commission shall determine if clear and
convincing evidence suggests that a violation may have been
committed.
(c) If the commission determines by an affirmative vote of
at least four commission members that the respondent may have
committed a violation, the presiding officer of the commission
shall notify the respondent that the commission will investigate
the complaint. Notification under this section must include:
(1) the statute or rule that the respondent is alleged
to have violated; and
(2) the alleged factual basis to support the finding
of the commission.
(d) If the commission determines that the general counsel
has not presented clear and convincing evidence that a violation
may have occurred, the commission shall dismiss the complaint. The
general counsel shall notify the complainant and the respondent of
the dismissal.
Sec. 571.156. INVESTIGATION. On a finding under Section
571.155 that a violation may have occurred, the commission shall
conduct an investigation of the complaint. The investigation may
include field investigations, audits, and other methods of
collecting information.
Sec. 571.157. GENERAL COUNSEL REPORT. (a) On the
completion of the investigation under Section 571.156, the general
counsel shall prepare a written report of the general counsel's
findings regarding the factual and legal issues of the complaint.
The report must recommend that the commission:
(1) dismiss the complaint; or
(2) find probable cause that a violation has occurred.
(b) The general counsel shall notify the respondent of the
general counsel's recommendation and include a copy of the general
counsel's report.
(c) Not later than the 15th day after the date a respondent
receives a copy of the general counsel's report, the respondent may
file a brief with the commission stating the respondent's position
on the factual and legal issues of the case.
(d) After reviewing the respondent's brief, the general
counsel shall advise the commission in writing of the general
counsel's recommendation to proceed with the complaint or to
dismiss the complaint.
Sec. 571.158. PROBABLE CAUSE HEARING. (a) The respondent
may request a hearing to present oral argument to the commission
before the commission decides whether there is probable cause to
believe that the respondent has violated a law or rule over which
the commission has jurisdiction.
(b) The respondent may request a hearing in the brief filed
by the respondent or by a separate written request. A request for a
hearing must state with specificity the reason the hearing is being
requested and must identify the issues the respondent intends to
address, including potential liability and the amount of any civil
penalty.
(c) The commission shall grant a request for an oral hearing
on the affirmative vote of at least two members. If the request is
granted, the respondent may appear before the commission to discuss
any issue presented in the respondent's brief.
(d) A hearing under this section is not open to the public.
Only the respondent, the respondent's attorney, or a member or
employee of the commission may attend the hearing.
(e) The commission and the general counsel may question the
respondent regarding the alleged violation. The commission may
also question the general counsel for clarification of the issues.
The commission may request that the respondent supplement the
record within a specified time.
(f) The proceedings must be recorded by a court reporter.
The respondent may purchase a copy of the transcript from the court
reporter. The transcript of the hearing is part of the public
record of the complaint when the complaint is closed. As necessary,
the commission may order redactions from the transcript before the
transcript is made public.
Sec. 571.159. FINDING BY COMMISSION. (a) The commission
shall review the findings and recommendation of the general counsel
and the brief submitted by the respondent. The commission shall
also review the arguments made by the respondent at the hearing
under Section 571.158, if a hearing was held. If the commission
determines by an affirmative vote of at least four members that
there is probable cause to believe that the respondent has violated
a law or rule over which the commission has jurisdiction, the
commission shall authorize the general counsel to notify the
respondent by letter.
(b) If the commission finds no probable cause to believe the
respondent has committed a violation or otherwise orders a
dismissal, the commission shall authorize the general counsel to
notify both the respondent and the complainant by letter.
(c) If the commission dismisses the complaint, the general
counsel shall make public the dismissal and the basis for the
dismissal not later than the 10th day after the date the
notification required by Subsection (b) is sent to the complainant
and respondent.
Sec. 571.160. APPEAL OF FINAL DECISION. (a) To appeal a
final decision of the commission, the respondent or the
respondent's attorney may file a petition in a district court in
Travis County or in the county in which the respondent resides.
(b) The petition must be filed not later than the 30th
business day after the date the respondent received the decision.
(c) 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.
Sec. 571.161. CONFIDENTIALITY. (a) Except as provided by
this subchapter, the following documents are confidential and may
not be released to the public:
(1) a complaint filed with the commission;
(2) any notification sent by the commission;
(3) any information received as the result of an
investigation conducted by the commission; or
(4) any findings made by the commission.
(b) The information described by Subsection (a) may be made
public by the commission with the written consent of the
respondent.
Sec. 571.162. REPRESENTATION BY ATTORNEY. (a) A
respondent may be represented by an attorney regarding any matter
pending before the commission if the respondent advises the
commission by letter that the respondent will be represented by an
attorney. The letter must include:
(1) the name, address, e-mail address, and telephone
number of the attorney; and
(2) a statement authorizing the attorney to receive
all notifications and other communication from the commission on
behalf of the respondent.
(b) On the receipt of a letter of representation as provided
by Subsection (a), the commission may not contact the respondent
except through the designated attorney unless authorized in writing
by the respondent.
SECTION 4. Section 571.176(c), Government Code, is amended
to read as follows:
(c) A person may file a sworn complaint with the commission,
in accordance with Section 571.152 [571.122], 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 E-1
[E].
SECTION 5. The following provisions of the Government Code
are repealed:
(1) Section 571.078(b); and
(2) Subchapter E, Chapter 571.
SECTION 6. Subchapter E-1, Government Code, as added by
this Act, applies only to a sworn complaint filed with the Texas
Ethics Commission on or after the effective date of this Act. A
sworn complaint filed before the effective date of the Act is
governed by the law in effect when the complaint was filed, and the
former law is continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2011.