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