CHAPTER 161. COUNTY ETHICS COMMISSION IN CERTAIN COUNTIES - Texas Statutes

LOCAL GOVERNMENT CODE

TITLE 5. MATTERS AFFECTING PUBLIC OFFICERS AND EMPLOYEES

SUBTITLE B. COUNTY OFFICERS AND EMPLOYEES

CHAPTER 161. COUNTY ETHICS COMMISSION IN CERTAIN COUNTIES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 161.001. APPLICABILITY OF CHAPTER. This chapter applies

only to a county that:

(1) has a population of 650,000 or more;

(2) is located on the international border; and

(3) before September 1, 2009, had a county ethics board

appointed by the commissioners court.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.002. DEFINITIONS. In this chapter:

(1) "Commission" means a county ethics commission created under

this chapter.

(2) "Commission staff" means county employees assigned to

provide administrative support to the commission.

(3) "Communicates directly with" has the meaning assigned by

Section 305.002, Government Code.

(4) "County affiliate" means a person described and determined

by order of the commissioners court on recommendation of the

commission. As determined by the commissioners court, the term

includes:

(A) any person whose goods and services are purchased under the

terms of a purchase order or contractual agreement with the

county; and

(B) as determined by the county, any other persons doing

business with the county.

(5) "County employee" means a person employed by the county or a

county officer and includes a person employed in the judicial

branch of the county government who is not subject to the Code of

Judicial Conduct. The term does not include a county officer.

(6) "County office" means a position held by a county officer.

(7) "County officer" means a county judge, county commissioner,

county attorney, sheriff, county tax assessor-collector, county

clerk, district clerk, county treasurer, county auditor, county

purchasing agent, and constable.

(8) "County public servant" means a person elected, selected,

appointed, employed, or otherwise designated as one of the

following, even if the person has not yet qualified for or

assumed the duties of office:

(A) a county officer or county employee;

(B) a person appointed by the commissioners court or a county

officer to a position on one of the following, whether the

position is compensated or not:

(i) an authority, board, bureau, commission, committee, council,

department, district, division, or office of the county; or

(ii) a multi-jurisdictional board;

(C) an attorney at law or notary public when participating in

the performance of a governmental function;

(D) a candidate for nomination or election to an elected county

office; or

(E) a person who is performing a governmental function under a

claim of right although the person is not legally qualified or

authorized to do so.

(9) "Lobbyist" means a person who, for compensation in excess of

an amount established by the commission, communicates directly

with a county officer or county employee to influence official

action. The term does not include an attorney who communicates

directly with a county officer or county employee to the extent

that such communication relates to the attorney's representation

of a party in a civil or criminal proceeding.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.003. CONFLICT WITH CIVIL SERVICE AGREEMENT. (a) This

chapter may not be construed to affect:

(1) the terms of an agreement authorized by Chapter 174 between

the county and county employees; or

(2) any provision of a civil service statute applicable to a

county employee.

(b) If an agreement authorized by Chapter 174 or a civil service

statute applicable to a county employee conflicts with this

chapter or an ethics code adopted or enforced under this chapter,

the agreement or civil service statute prevails.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

SUBCHAPTER B. CREATION OF COMMISSION; APPOINTMENT OF COMMISSION

MEMBERS

Sec. 161.051. CREATION OF COMMISSION BY ORDER. (a) The

commissioners court of a county, by an order adopted by a

majority of the court's full membership, may create a county

ethics commission.

(b) A copy of an order adopted under this section shall be

placed in the minutes of the court's proceedings. The copy of

the order is public information.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.052. CREATION OF COMMISSION BY ELECTION. (a) A county

ethics commission may be created by approval of the system by a

majority of the qualified voters of the county voting at an

election called for that purpose.

(b) The commissioners court by order may call an election on the

question of the creation of a county ethics commission.

(c) The commissioners court shall hold the election called under

this section on the first authorized uniform election date

prescribed by Chapter 41, Election Code, that allows sufficient

time for publication of the notice required by Subsection (d) and

for compliance with any other requirements established by law.

(d) In addition to the notice required by Chapter 4, Election

Code, the commissioners court must publish in a newspaper of

general circulation in the county, and on the home page of the

county's Internet website, a substantial copy of the order

calling the election. The first newspaper publication must be

made on or before the 15th day before the date of the election

and continue once a week for two consecutive weeks, and the

notice on the county's Internet website shall remain on the home

page each day beginning not later than the 16th day before the

election and ending on the date of the election.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.053. BALLOT. The commissioners court shall order the

ballot at the election to be printed to provide for voting for or

against the proposition: "Creation of a county ethics

commission."

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.054. RESULT OF ELECTION. If the proposition is

approved, the commissioners court shall declare the result and by

order create the county ethics commission. A copy of the order

creating the commission shall be placed in the minutes of the

court's proceedings.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.055. APPOINTMENT OF COMMISSION. (a) The commission is

composed of:

(1) five members, each of whom is appointed by the county judge

or a county commissioner; and

(2) five members appointed by the commissioners court, with one

member appointed from a list of nominees submitted by each of the

following entities:

(A) the county civil service commission;

(B) a bar association in the county;

(C) the sheriff's civil service commission;

(D) a dispute resolution center in the county that is affiliated

with a council of governments; and

(E) a human resources management association in the county.

(a-1) The commissioners court shall designate the entities

described by Subsections (a)(2)(B), (D), and (E) that may submit

nominees for membership on the commission. If a designated

entity does not wish to submit nominees, the commissioners court

shall select a similar entity that has experience with grievance

or mediation structures or processes.

(b) Not later than the 60th day after the date of the order

creating the commission as provided in Section 161.051 or Section

161.054:

(1) the county judge and each county commissioner shall each

appoint one member of the commission; and

(2) each entity described by Subsection (a)(2) or alternate

entity designated under Subsection (a-1) shall deliver to the

commissioners court the entity's nominees for membership on the

commission.

(c) The commissioners court shall set the date for the first

meeting of the initial members. The first meeting must be set

not earlier than the 60th day after the date of the order

creating the commission and not later than the 90th day after the

date of that order.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.056. ELIGIBILITY. (a) To be eligible for appointment

to the commission, a person must:

(1) be at least 18 years old;

(2) be a property taxpayer in the county; and

(3) have resided in the county for the two years immediately

preceding the date on which the person's term will begin.

(b) A person is not eligible for appointment to the commission

if the person is:

(1) an elected officer;

(2) a county employee;

(3) a county affiliate;

(4) a person employed as a lobbyist;

(5) a person convicted of a misdemeanor involving moral

turpitude or a felony; or

(6) a person who is delinquent in payment of local, state, or

federal taxes.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.057. TERMS. (a) Members of the commission serve terms

of two years beginning on February 1 of each odd-numbered year.

(b) A member may serve more than one term.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.058. VACANCIES. (a) A vacancy on the commission shall

be filled for the remainder of the unexpired term as follows:

(1) if the vacancy involves a member appointed by the county

judge or a county commissioner, the vacancy is filled, except as

provided by Subsection (b), by appointment of that officer or the

officer's successor in office; or

(2) if the vacancy involves a member appointed under Section

161.055(a)(2), the vacancy is filled as provided by that section

for an appointment to a full term.

(b) If the county judge or county commissioner, as applicable,

does not fill the vacancy before the 60th day after the date the

position becomes vacant, the commission may fill the vacancy by a

majority vote of the remaining members.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.059. MEETINGS. (a) The commission shall meet on a

regular basis.

(b) The commission is a governmental body for purposes of

Chapter 551, Government Code.

(c) Except as otherwise provided by this chapter, a majority of

the commission constitutes a quorum.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.0591. CHAIR. (a) The position of chair alternates

every six months between members appointed under Section

161.055(a)(1) and members appointed under Section 161.055(a)(2)

and rotates so that each position on the commission serves as

chair, as follows:

(1) the rotation of members appointed under Section

161.055(a)(1) begins with the member appointed by the county

judge, followed by the members appointed by the county

commissioners in order of precinct number; and

(2) the rotation of members appointed under Section

161.055(a)(2) begins with the member appointed under Section

161.055(a)(2)(A), followed by the members appointed under

Sections 161.055(a)(2)(B), (C), (D), and (E) in that order.

(b) The member serving as chair may not vote on a matter before

the commission except to break a tie vote.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.060. REMOVAL OF COMMISSION MEMBER. A member of the

commission is a county officer described by Section 87.012(15)

and may be removed as provided by Chapter 87 if, after a trial,

the jury finds good cause for removal, including:

(1) failure to pay local, state, or federal taxes when due;

(2) violation of the ethics code adopted by the commission;

(3) conviction of a felony or misdemeanor;

(4) excessive absenteeism as determined by the commission; and

(5) official misconduct.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.061. LEGAL REPRESENTATION. The county attorney, or

district attorney, or criminal district attorney, as appropriate,

with the duty to represent the county in civil matters shall

represent the commission in all legal matters.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

SUBCHAPTER C. POWERS

Sec. 161.101. GENERAL POWERS. (a) The commission shall adopt,

publish, and enforce an ethics code governing county public

servants.

(b) The commission may adopt or use as a guide any ethics law or

rule of the United States, this state, or a political subdivision

in this state to the extent that the law or rule promotes the

purposes of this chapter and serves the needs of the county. For

purposes of Section 161.002(9), in determining the applicable

amount of compensation of a person who communicates directly with

a county officer or employee to influence official action and

engages in such communication as part of the person's regular

employment, the commission shall adopt rules that are

substantially similar to the rules or interpretations of the

Texas Ethics Commission under Chapter 305, Government Code, to

calculate the compensation.

(c) The commission may adopt bylaws, rules, forms, policies, or

procedures to assist in the administration of the commission's

duties under this chapter. The commission may be guided by

Robert's Rules of Order to the extent that it does not conflict

with the constitution and laws of the United States and this

state or conflict with other guidelines adopted by the

commission.

(d) The commission shall be assigned staff by the county and

provided access to county resources to assist in its duties.

(e) The commission shall develop and implement policies that

provide the public with information on the commission and the

ethics code.

(f) The commission shall enforce the provisions of the ethics

code by issuing appropriate orders or recommendations or by

imposing appropriate penalties.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.102. ADVISORY OPINIONS. On the request of any person

covered by the ethics code adopted by the commission, the

commission may issue a written ethics advisory opinion regarding

the application of the ethics code to a specified existing or

hypothetical factual situation. The commission may not issue an

opinion that includes the name of any person who may be affected

by the opinion. The name of the person requesting the opinion

shall be deemed confidential.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.103. PUBLIC INTEREST INFORMATION. (a) The commission

shall develop plain-language materials as described by this

section. The commission shall post the information on the

county's Internet website and make the information otherwise

available to the public.

(b) The materials must include:

(1) a description of:

(A) the commission's responsibilities;

(B) the types of conduct that constitute a violation of the

ethics code adopted by the commission;

(C) the types of sanctions the commission may impose;

(D) the commission's policies and procedures relating to

complaint investigation and resolution; and

(E) the duties of a person filing a complaint with the

commission; and

(2) a diagram showing the basic steps in the commission's

procedures relating to complaint investigation and resolution.

(c) The commission shall provide the materials described by this

section to each complainant and respondent.

(d) The commission shall adopt a policy to effectively

distribute materials as required by this section.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.104. COMMISSION MEMBER EDUCATION AND TRAINING. (a)

Not later than the 60th day after the date a person is appointed

to the commission, the person must complete training on the

following matters:

(1) the legislation that created the commission;

(2) the role and functions of the commission; and

(3) the requirements of:

(A) the open meetings law, Chapter 551, Government Code;

(B) the public information law, Chapter 552, Government Code;

and

(C) other laws relating to public officials, including

conflict-of-interest laws.

(b) A member of the commission must complete subsequent training

programs on the following matters:

(1) the ethics code adopted by the commission; and

(2) the procedural rules adopted by the commission.

(c) A person who is appointed to and qualifies for office as a

member of the commission may not vote, deliberate, or be counted

as a member in attendance at a meeting of the commission until

the person completes a training program that complies with this

section.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.105. EDUCATION AND TRAINING FOR PERSONS COVERED BY

ETHICS CODE. (a) The commission and commission staff shall

provide periodic training for persons covered by the ethics code

adopted by the commission on at least a quarterly basis.

(b) The training program must provide information regarding:

(1) the ethics code;

(2) the role and functions of the commission; and

(3) plain-language materials as further described by Section

161.103.

(c) In addition to the qualifications under Subchapter C,

Chapter 262, before submitting a bid, responding to a request for

qualifications or proposals, or otherwise contracting with the

county, an officer, principal, or other person with the authority

to bind the vendor shall complete training on the ethics code.

(d) A lobbyist intending to meet with a person covered by the

ethics code shall complete training on the ethics code.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.106. CERTAIN DISCUSSIONS OF PENDING COMPLAINTS

PROHIBITED. Until a sworn complaint alleging a violation of the

ethics code is resolved, a member of the commission may not

discuss the complaint with a member of the commissioners court.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

SUBCHAPTER D. COMPLAINT PROCEDURES AND HEARINGS

Sec. 161.151. DEFINITIONS. In this subchapter:

(1) "Category One violation" means a violation of the ethics

code adopted by the commission as to which it is generally not

difficult to ascertain whether the violation occurred or did not

occur, including:

(A) the failure by a person required to file a statement or

report required under the ethics code to:

(i) file the statement or report in a manner that complies with

applicable requirements; or

(ii) file the statement or report in a timely manner;

(B) a misrepresentation in a report required under the ethics

code; or

(C) a failure to respond in a timely manner to a written notice

under Section 161.156(b).

(2) "Category Two violation" means a violation of the ethics

code adopted by the commission that is not a Category One

violation.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.152. COMPLAINT PROCEDURES AND HEARINGS. The commission

shall adopt the complaint procedures and hearings set forth in

this subchapter. The commission may adopt additional procedures

not in conflict with this subchapter.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.153. HEARINGS AND SETTLEMENT. (a) The commission may:

(1) hold a hearing on a sworn complaint and render a decision on

a complaint or report of a violation as provided by this chapter;

and

(2) agree to the settlement of issues.

(b) The commission may not:

(1) consider a complaint or vote to investigate a matter outside

the commission's jurisdiction; or

(2) investigate any matter except in response to a sworn

complaint.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.154. CATEGORIZATION OF VIOLATIONS. An allegation of a

violation listed as a Category One violation shall be treated as

a Category Two violation if the commission at any time determines

that:

(1) the allegation arises out of the same set of facts as those

that give rise to an allegation of a Category Two violation, and

the interests of justice or efficiency require resolution of the

allegations together; or

(2) the facts and law related to a particular allegation or a

defense to the allegation present a level of complexity that

prevents resolution through the preliminary review procedures for

Category One violations prescribed by Section 161.159(a).

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.155. FILING OF COMPLAINT; CONTENTS. (a) An individual

may file with the commission a sworn complaint, on a form

prescribed by the commission, alleging that a person subject to

the ethics code has violated the ethics code. The commission

shall make the complaint form available on the county website.

(b) A complaint filed under this section must be in writing and

under oath and must set forth in simple, concise, and direct

statements:

(1) the name of the complainant;

(2) the street or mailing address of the complainant;

(3) the name of each respondent;

(4) the position or title of each respondent;

(5) the nature of the alleged violation, including if possible

the specific rule or provision of the ethics code alleged to have

been violated;

(6) a statement of the facts constituting the alleged violation

and the dates on which or period of time in which the alleged

violation occurred; and

(7) all documents or other material available to the complainant

that are relevant to the allegation, a list of all documents or

other material within the knowledge of the complainant and

available to the complainant that are relevant to the allegation

but that are not in the possession of the complainant, including

the location of the documents, if known, and a list of all

documents or other material within the knowledge of the

complainant that are unavailable to the complainant and that are

relevant to the complaint, including the location of the

documents, if known.

(c) The complaint must be accompanied by an affidavit stating

either that the information contained in the complaint is correct

or that the complainant has good reason to believe and does

believe that the violation occurred. If the complaint is based

on information and belief, the complaint shall state the source

and basis of the information and belief. The complainant may

swear to the facts by oath before a notary public or other

authorized official.

(d) The complaint must state on its face an allegation that, if

true, constitutes a violation of the ethics code.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.1551. STANDING PRELIMINARY REVIEW COMMITTEE. (a) The

standing preliminary review committee shall perform the actions

prescribed by this subchapter in conducting a preliminary review

of each sworn complaint filed with the commission.

(b) The standing preliminary review committee consists of:

(1) two members of the commission, determined as provided by

Subsection (c); and

(2) a review officer selected and retained by the commission.

(c) The initial standing preliminary review committee consists

of one commission member, chosen by lot, from the members of the

commission appointed under Section 161.055(a)(1), and one

commission member, chosen by lot, from the members appointed

under Section 161.055(a)(2).

(d) A commission member serves on the standing preliminary

review committee for six months. After the end of a commission

member term on the standing preliminary review committee, service

on the committee rotates as provided by Section 161.0591 for the

rotation of the chair, except that the rotation begins with the

initial members of the standing preliminary review committee

chosen under Subsection (c).

(e) The review officer must be a practicing attorney or former

judge.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.156. PROCESSING OF COMPLAINT. (a) The standing

preliminary review committee shall determine whether a sworn

complaint filed with the commission complies with the form

requirements of Section 161.155.

(b) Not later than the 10th business day after the date a

complaint is filed, the standing preliminary review committee

shall send written notice to the complainant and the respondent.

The notice must state whether the complaint complies with the

form requirements of Section 161.155 and include the information

required by Section 161.158(c).

(c) If the standing preliminary review committee determines that

the complaint does not comply with the form requirements, the

committee shall send the complaint to the complainant with the

written notice, a statement explaining how the complaint fails to

comply, and a copy of the rules for filing sworn complaints. The

complainant may resubmit the complaint not later than the 21st

day after the date the notice under Subsection (b) is mailed. If

the standing preliminary review committee determines that the

complaint is not resubmitted within the 21-day period, the

committee shall:

(1) dismiss the complaint; and

(2) not later than the 10th business day after the date of the

dismissal, send written notice to the complainant and the

respondent of the dismissal and the grounds for dismissal.

(d) If the standing preliminary review committee determines that

a complaint is resubmitted under Subsection (c) within the 21-day

period but is not in proper form, the committee shall send the

notice required under Subsection (c), and the complainant may

resubmit the complaint under that subsection.

(e) If the standing preliminary review committee determines that

a complaint returned to the complainant under Subsection (c) or

(d) is resubmitted within the 21-day period and that the

complaint complies with the form requirements, the committee

shall send the written notice under Subsection (b).

(f) If a complaint filed with the commission is within the

jurisdiction of the commission but may also be brought under the

provisions of a collective bargaining agreement authorized by

Chapter 174, a civil service rule under Section 158.0025, or a

rule of the sheriff's department, the commission shall defer

jurisdiction over the complaint to the sheriff for disposition.

The sheriff may return a complaint deferred under this subsection

to the commission for additional proceedings as the commission

determines appropriate if the sheriff determines that the conduct

alleged in the complaint is not within the scope of the

collective bargaining agreement, civil service rule, or sheriff's

department rule. The sheriff may not return a complaint deferred

under this section if:

(1) the sheriff disciplines the employee under the collective

bargaining agreement, civil service rule, or sheriff's department

rule for the conduct alleged in the sworn complaint; or

(2) the sheriff determines that the employee did not commit the

conduct alleged in the sworn complaint.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.157. RETALIATION AGAINST COUNTY EMPLOYEE REPORTING

VIOLATION OF ETHICS CODE PROHIBITED. (a) The county may not

suspend or terminate the employment of or take other adverse

action against a county employee who in good faith files a

complaint or otherwise reports to the commission, commission

staff, or another law enforcement authority a violation of the

ethics code by a person subject to the ethics code.

(b) The county may not suspend or terminate the employment of or

take other adverse action against a county employee who in good

faith participates in the complaint processing, preliminary

review, hearing, or any other aspect of the investigation and

resolution by the commission of an alleged violation of the

ethics code by a person subject to the ethics code.

(c) A commission created by a county under this chapter is a

part of the "local governmental entity" for purposes of Section

554.002, Government Code.

(d) An ethics code adopted by a commission pursuant to this

chapter is a "law" as defined by Section 554.001, Government

Code.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.158. PRELIMINARY REVIEW: INITIATION. (a) The

standing preliminary review committee shall promptly conduct a

preliminary review on receipt of a written complaint that is in

compliance with the form requirements of Section 161.155.

(b) The standing preliminary review committee shall determine in

writing whether the commission has jurisdiction over the

violation of the ethics code provision alleged in a sworn

complaint processed under Section 161.156.

(c) If the standing preliminary review committee determines that

the commission has jurisdiction, the committee shall issue a

notice under Section 161.156(b) that must include:

(1) a statement that the commission has jurisdiction over the

violation alleged in the complaint;

(2) a statement of whether the complaint will be processed as a

Category One violation or a Category Two violation, subject to

reconsideration as provided for by Section 161.154;

(3) the date by which the respondent is required to respond to

the notice;

(4) a copy of the complaint and the rules of procedure of the

commission;

(5) a statement of the rights of the respondent;

(6) a statement inviting the respondent to provide to the

commission any information relevant to the complaint; and

(7) a statement that a failure to timely respond to the notice

will be treated as a separate violation.

(d) If the standing preliminary review committee determines that

the commission does not have jurisdiction over the violation

alleged in the complaint, the committee shall:

(1) dismiss the complaint; and

(2) not later than the 10th business day after the date of the

dismissal, send to the complainant and the respondent written

notice of the dismissal and the grounds for the dismissal.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.159. PRELIMINARY REVIEW: RESPONSE BY RESPONDENT. (a)

If the alleged violation is a Category One violation:

(1) the respondent must respond to the notice required by

Section 161.156(b) not later than the 10th business day after the

date the respondent receives the notice; and

(2) if the matter is not resolved by agreement between the

commission and the respondent before the 30th business day after

the date the respondent receives the notice under Section

161.156(b), the standing preliminary review committee shall set

the matter for a preliminary review hearing to be held at the

next committee meeting for which notice has not yet been posted.

(b) If the alleged violation is a Category Two violation:

(1) the respondent must respond to the notice required by

Section 161.156(b) not later than the 25th business day after the

date the respondent receives the notice under Section 161.156(b);

and

(2) if the matter is not resolved by agreement between the

commission and the respondent before the 75th business day after

the date the respondent receives the notice under Section

161.156(b), the standing preliminary review committee shall set

the matter for a preliminary review hearing to be held at the

next committee meeting for which notice has not yet been posted.

(c) A respondent's failure to timely respond as required by

Subsection (a)(1) or (b)(1) is a Category One violation.

(d) The response required by Subsection (a) or (b) must include

any challenge the respondent seeks to raise to the commission's

exercise of jurisdiction. In addition, the respondent may:

(1) acknowledge the occurrence or commission of a violation;

(2) deny the allegations contained in the complaint and provide

evidence supporting the denial; or

(3) agree to enter into an assurance of voluntary compliance or

other agreed order, which may include an agreement to immediately

cease and desist.

(e) If the standing preliminary review committee sets the matter

for a preliminary review hearing, the committee shall promptly

send to the complainant and the respondent written notice of the

date, time, and place of the preliminary review hearing.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.160. PRELIMINARY REVIEW: WRITTEN QUESTIONS. During a

preliminary review, the commission staff may submit to the

complainant or respondent written questions reasonably intended

to lead to the discovery of matters relevant to the

investigation.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.161. PRELIMINARY REVIEW AND PRELIMINARY REVIEW

PROCEDURES. The commission shall adopt procedures for the

conduct of preliminary reviews and preliminary review hearings.

The procedures must include:

(1) a reasonable time for responding to questions submitted by

the commission and commission staff and subpoenas issued by the

commission; and

(2) the tolling or extension of otherwise applicable deadlines

where:

(A) the commission issues a subpoena and the standing

preliminary review committee's meeting schedule makes it

impossible both to provide a reasonable time for response and to

comply with the otherwise applicable deadlines; or

(B) the commission determines that, despite the standing

preliminary review committee's diligence and the reasonable

cooperation of the respondent, a matter is too complex to resolve

within the otherwise applicable deadlines without compromising

either the committee's investigation or the rights of the

respondent.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.162. PRELIMINARY REVIEW HEARING: PROCEDURE. (a) The

standing preliminary review committee shall conduct a preliminary

review hearing if:

(1) following the preliminary review, the standing preliminary

review committee and the respondent cannot agree to the

disposition of the complaint; or

(2) the respondent in writing requests a hearing.

(b) The standing preliminary review committee shall provide

written notice to the complainant and the respondent of the date,

time, and place the committee will conduct the preliminary review

hearing.

(c) At or after the time the standing preliminary review

committee provides notice of a preliminary review hearing, the

committee may submit to the complainant and the respondent

written questions and require those questions to be answered

under oath within a reasonable time. After receiving answers to

any questions submitted to the complainant under this subsection

and before the preliminary review hearing, the committee shall

provide the respondent both the questions and the answers to the

questions submitted by the complainant. This subsection may not

be construed to require a person to give evidence that violates

the person's right against self-incrimination under the United

States Constitution or the Texas Constitution.

(d) On the request of the respondent, the standing preliminary

review committee shall request that any information in the

possession or control of the complainant, including exculpatory

information, that is directly related to the complaint be

provided the respondent and the committee.

(e) During a preliminary review hearing, the standing

preliminary review committee:

(1) may consider all submitted evidence related to the

complaint;

(2) may review any documents or material related to the

complaint; and

(3) shall determine whether there is credible evidence that

provides cause for the committee to conclude that a violation

within the jurisdiction of the commission has occurred.

(f) During a preliminary review hearing, the respondent may

appear before the standing preliminary review committee with the

assistance of counsel, if desired by the respondent, and present

any relevant evidence, including a written statement.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.163. PRELIMINARY REVIEW HEARING: RESOLUTION. (a) As

soon as practicable after the completion of a preliminary review

hearing, the standing preliminary review committee by vote shall

issue a decision stating:

(1) whether there is credible evidence for the committee to

determine that a violation within the jurisdiction of the

commission has occurred and whether the violation is technical or

de minimis; or

(2) that there is insufficient evidence for the committee to

determine whether a violation within the jurisdiction of the

commission has occurred.

(b) If the standing preliminary review committee determines that

there is credible evidence for the committee to determine that a

violation has occurred, the committee shall resolve and settle

the complaint to the extent possible. If the committee

successfully resolves and settles the complaint, not later than

the 10th business day after the date of the final resolution of

the complaint, the committee shall send to the complainant and

the respondent a copy of the order stating the committee's

determination and written notice of the resolution and the terms

of the resolution. If the committee is unsuccessful in resolving

and settling the complaint, the committee shall:

(1) order a formal hearing to be held in accordance with

Sections 161.164-161.167; and

(2) not later than the 10th business day after the date of the

order, send to the complainant and the respondent:

(A) a copy of the order;

(B) written notice of the date, time, and place of the formal

hearing;

(C) a statement of the nature of the alleged violation;

(D) a description of the evidence of the alleged violation;

(E) a copy of the complaint;

(F) a copy of the commission's rules of procedure; and

(G) a statement of the rights of the respondent.

(c) If the standing preliminary review committee determines that

there is credible evidence for the committee to determine that a

violation within the jurisdiction of the commission has not

occurred, the committee shall:

(1) dismiss the complaint; and

(2) not later than the fifth business day after the date of the

dismissal, send to the complainant and the respondent a copy of

the order stating the committee's determination and written

notice of the dismissal and the grounds for dismissal.

(d) If the standing preliminary review committee determines that

there is insufficient credible evidence for the committee to

determine that a violation within the jurisdiction of the

commission has occurred, the commission may dismiss the complaint

or order a formal hearing under Sections 161.164-161.167. Not

later than the fifth business day after the date of the

committee's determination under this subsection, the committee

shall send to the complainant and the respondent a copy of the

decision stating the committee's determination and written notice

of the grounds for the determination.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.164. FORMAL HEARING: STANDARD OF EVIDENCE. During a

formal hearing, the commission shall determine by a preponderance

of the evidence whether a violation within the jurisdiction of

the commission has occurred.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.165. FORMAL HEARING: SUBPOENAS AND WITNESSES. (a) A

subpoena or other request to testify shall be served sufficiently

in advance of the scheduled appearance at a formal hearing to

allow a reasonable period, as determined by the commission, for

the person subpoenaed to prepare for the hearing and to employ

counsel if desired.

(b) Except as provided by Section 161.166(a)(1), the commission

may order that a person may not, except as specifically

authorized by the presiding officer, make public the name of a

witness subpoenaed by the commission before the date of that

witness's scheduled appearance.

(c) A witness may read a written statement or present a brief

oral opening statement at a formal hearing, subject to the rules

of evidence applicable to a contested case under Section

2001.081, Government Code.

(d) A person whose name is mentioned or who is identified or

referred to in testimony or in statements made by a commission

member, commission staff member, or witness and who reasonably

believes that the statement tends to adversely affect the

person's reputation may:

(1) request to appear personally before the commission to

testify in the person's own behalf; or

(2) file a sworn statement of facts relevant to the testimony or

statement that the person believes adversely affects the person's

reputation.

(e) A witness who testifies at a formal hearing must be sworn.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.166. FORMAL HEARING: PROCEDURE. (a) Not later than

the fifth business day before the date of a scheduled formal

hearing or on the granting of a motion for discovery by the

respondent, the commission shall provide to the respondent:

(1) a list of proposed witnesses to be called at the hearing;

(2) copies of all documents expected to be introduced as

exhibits at the hearing; and

(3) a brief statement as to the nature of the testimony expected

to be given by each witness to be called at the hearing.

(b) The respondent may not be compelled to give evidence or

testimony that violates the respondent's right against

self-incrimination under the United States Constitution or the

Texas Constitution.

(c) The commission shall adopt rules governing discovery,

hearings, and related procedures consistent with this chapter and

Chapter 2001, Government Code.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.167. FORMAL HEARING: RESOLUTION. (a) Not later than

the 30th business day after the date of the formal hearing, the

commission shall convene a meeting and by motion shall issue:

(1) a final decision stating the resolution of the formal

hearing; and

(2) a written report stating the commission's findings of fact,

conclusions of law, and recommendation of imposition of a civil

penalty, if any.

(b) Six members of the commission are required for a quorum at a

formal hearing.

(c) Not later than the 10th business day after the date the

commission issues the final decision and written report, the

commission shall:

(1) send a copy of the decision and report to the complainant

and to the respondent; and

(2) make a copy of the decision and report available to the

public during reasonable business hours.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.168. STATUS OF COMPLAINT. (a) The commission shall

keep an information file about each sworn or other complaint

filed with the commission. The file must include:

(1) the name of the person who filed the complaint;

(2) the date the complaint is received by the commission;

(3) the subject matter of the complaint;

(4) the name of each person contacted in relation to the

complaint;

(5) a summary of the results of the review or investigation of

the complaint; and

(6) an explanation of the reason the file was closed, if the

commission closed the file without taking action other than to

investigate the complaint.

(b) The commission shall provide to the person filing the

complaint and to each person who is a subject of the complaint a

copy of the commission's policies and procedures relating to

complaint investigation and resolution.

(c) In addition to the notice required by Sections 161.156 and

161.167, the commission, at least quarterly until final

disposition of a complaint, shall notify the person who filed the

complaint and each person who is a subject of the complaint of

the status of the sworn complaint.

(d) The commission shall resolve a complaint within six months

of its receipt unless it makes a determination that additional

time is required to resolve the matter. On a determination that

additional time is required, the commission may extend the

investigation in three-month increments. Each extension requires

separate approval by the commission.

(e) If the commission does not resolve the matter within six

months or within an authorized extension, the complaint shall be

deemed to have been dismissed without prejudice.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.169. EXTENSION OF DEADLINE. The commission may, on its

own motion or on the reasonable request of a respondent, extend

any deadline for action relating to a sworn complaint,

preliminary review hearing, or formal hearing.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.170. SUBPOENA. (a) In connection with a formal

hearing, the commission, as authorized by this chapter, may

subpoena and examine witnesses and documents that directly relate

to a sworn complaint.

(b) In connection with a preliminary review, the commission, for

good cause and as authorized by this chapter, may subpoena

documents and witnesses on application by the commission staff

and a motion adopted by a vote of at least five members of the

commission, for the purpose of attempting to obtain from the

documents or witnesses specifically identified information, if

the commission reasonably believes that the specifically

identified information:

(1) is likely to be determinative as to whether the subject of

an investigation has violated a provision of the ethics code;

(2) can be determined from the documents or is known by the

witnesses; and

(3) is not reasonably available through a less intrusive means.

(c) The commission shall adopt procedures for the issuance of

subpoenas under this section.

(d) Section 2001.089, Government Code, applies to a subpoena

issued under this subchapter. On the request of the respondent,

the commission shall subpoena any information in the possession

or control of any person identified in the request, including

exculpatory information, that is directly related to the

complaint and provide the information to the respondent.

(e) A copy of a subpoena issued under this section must be

delivered to the respondent.

(f) At the written request of at least five members of the

commission, a peace officer shall serve a subpoena of the

commission in the manner prescribed for service of a district

court subpoena.

(g) If a person to whom a subpoena is directed refuses to

appear, refuses to answer inquiries, or fails or refuses to

produce books, records, or other documents that were under the

person's control when the demand was made, the commission shall

report that fact to a district court in the county. The district

court shall enforce the subpoena by attachment proceedings for

contempt in the same manner as the court enforces a subpoena

issued by the court.

(h) A respondent has the right to quash a subpoena in a district

court in the county as provided by law.

(i) A subpoenaed witness who attends a commission hearing is

entitled to the same mileage and per diem payments as a witness

who appears before a grand jury. A person who provides

subpoenaed documents to the commission is entitled to

reimbursement from the commission for the person's reasonable

cost of producing the documents.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.171. STATUS OF COMPLAINANT. The complainant is not a

party to a preliminary review, preliminary review hearing, or

formal hearing under this subchapter.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.172. APPLICABILITY OF OTHER ACTS. (a) Except as

provided by Section 161.173(b), Chapter 552, Government Code,

does not apply to documents or any additional evidence relating

to the processing, preliminary review, preliminary review

hearing, or resolution of a sworn complaint.

(b) Chapter 551, Government Code, does not apply to the

processing, preliminary review, preliminary review hearing, or

resolution of a sworn complaint, but does apply to a formal

hearing held under Sections 161.164-161.167.

(c) Subchapters C-H, Chapter 2001, Government Code, apply only

to a formal hearing under this subchapter, the resolution of a

formal hearing, and the appeal of a final order of the

commission, and only to the extent consistent with this chapter.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.173. CONFIDENTIALITY; OFFENSE. (a) Except as provided

by Subsection (b), (c), or (m), proceedings at a preliminary

review hearing performed by the commission, a sworn complaint,

and documents and any additional evidence relating to the

processing, preliminary review, preliminary review hearing, or

resolution of a sworn complaint are confidential and may not be

disclosed unless entered into the record of a formal hearing or a

judicial proceeding, except that a document or statement that was

previously public information remains public information.

(b) An order issued by the commission after the completion of a

preliminary review or hearing determining that a violation other

than a technical or de minimis violation has occurred is not

confidential.

(c) Commission staff may, for the purpose of investigating a

sworn complaint, disclose to the complainant, the respondent, or

a witness information that is otherwise confidential and relates

to the sworn complaint if:

(1) the employee makes a good faith determination that the

disclosure is necessary to conduct the investigation;

(2) the employee's determination under Subdivision (1) is

objectively reasonable;

(3) the commission specifically authorizes the disclosure; and

(4) the employee discloses only the information necessary to

conduct the investigation.

(d) A person commits an offense if the person intentionally:

(1) destroys, mutilates, or alters information obtained under

this chapter; or

(2) removes information obtained under this chapter without

permission as provided by this chapter.

(e) An offense under Subsection (d) is a misdemeanor punishable

by:

(1) a fine of not less than $25 or more than $4,000;

(2) confinement in the county jail for not less than three days

or more than three months; or

(3) both the fine and confinement.

(f) A person commits an offense if the person distributes

information considered confidential under the terms of this

chapter.

(g) A person who obtains access to confidential information

under this chapter commits an offense if that person knowingly:

(1) uses the confidential information for a purpose other than

the purpose for which the information was received or for a

purpose unrelated to this chapter, including solicitation of

political contributions or solicitation of clients;

(2) permits inspection of the confidential information by a

person who is not authorized to inspect the information; or

(3) discloses the confidential information to a person who is

not authorized to receive the information.

(h) An offense under Subsection (f) or (g) is a misdemeanor

punishable by:

(1) a fine of not more than $1,000;

(2) confinement in the county jail for not more than six months;

or

(3) both the fine and confinement.

(i) If conduct that constitutes an offense under this section

also constitutes an offense under the Penal Code, including under

Section 37.10 or 39.06 of that code, the person may be prosecuted

under this section or the Penal Code, as applicable.

(j) A violation under this section constitutes official

misconduct.

(k) In addition to other penalties, the respondent may commence

a civil action for damages on the respondent's own behalf against

any person who is alleged to have disclosed information made

confidential by this subchapter. Any action under this chapter

must be brought in a district court in the county. The court may

award costs and attorney's fees.

(l) A county employee is subject to discipline, including

termination of employment, for disclosing confidential

information under this chapter.

(m) The commission may disclose confidential information in

making a referral to a prosecuting attorney concerning an offense

under this section.

(n) A county employee who discloses confidential information in

compliance with Subsection (c) or (m) is not subject to

Subsections (d)-(l).

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.174. AVAILABILITY OF COMMISSION ORDERS ON INTERNET.

(a) As soon as practicable following a preliminary review,

preliminary review hearing, or formal hearing at which the

commission determines that a person has committed a violation

within the commission's jurisdiction, the commission shall make

available on the Internet:

(1) a copy of the commission's order stating the determination;

or

(2) a summary of the commission's order.

(b) This section does not apply to a determination of a

violation that is technical or de minimis.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

SUBCHAPTER E. ENFORCEMENT

Sec. 161.201. ORDER. The commission may:

(1) issue and enforce a cease and desist order to stop a

violation;

(2) issue an affirmative order to require compliance with the

laws administered and enforced by the commission; and

(3) issue an order of public censure with or without a civil

penalty imposed under Section 161.202.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.202. CIVIL PENALTY FOR DELAY OR VIOLATION. (a) The

commission may impose a civil penalty of not more than $500 for

each delay in complying with a commission order.

(b) The commission may impose a civil penalty of not more than

$4,000 for a violation of the ethics code adopted by the

commission.

(c) A penalty paid under this section shall be deposited to the

credit of the general fund of the county.

(d) This section is cumulative of any other available sanctions

under this chapter.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.203. WAIVER OR REDUCTION OF PENALTY. (a) A person may

request the waiver or reduction of a civil penalty by submitting

an affidavit to the commission that states the filer's reasons

for requesting a waiver or reduction.

(b) The commission may waive or reduce a civil penalty if the

commission finds that a waiver or reduction is in the public

interest and in the interest of justice. The commission shall

consider the following before acting to waive or reduce a civil

penalty:

(1) the facts and circumstances supporting the person's request

for a waiver or reduction;

(2) the seriousness of the violation, including the nature,

circumstances, consequences, extent, and gravity of the

violation, and the amount of the penalty;

(3) any history of previous violations by the person;

(4) the demonstrated good faith of the person, including actions

taken to rectify the consequences of the violation;

(5) the penalty necessary to deter future violations; and

(6) any other matter that justice may require.

(c) After hearing the waiver request, the commission may affirm,

reduce, or waive the civil penalty.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.204. NOTIFICATION OF REGULATORY OR SUPERVISORY ENTITY.

The commission may notify the appropriate regulatory or

supervisory entity, including any agency, the State Commission on

Judicial Conduct, or the State Bar of Texas, of a violation of

the ethics code adopted by the commission.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.205. CIVIL PENALTY FOR FRIVOLOUS OR BAD-FAITH

COMPLAINT. (a) The commission may impose a civil penalty of not

more than $4,000 for the filing of a frivolous or bad-faith

complaint. In this subsection, "frivolous complaint" means a

complaint that is groundless and brought in bad faith or is

groundless and brought for the purpose of harassment.

(b) In addition to other penalties, the respondent may commence

a civil action on the respondent's own behalf against any person

who filed a frivolous complaint against the respondent. Any

action under this chapter shall be brought in a district court in

the county. The court may award costs and attorney's fees.

(c) A person may file a sworn complaint with the commission, in

accordance with Section 161.155, alleging that a complaint

relating to that person filed with the commission is frivolous or

brought in bad faith. A complaint may be filed under this

subsection without regard to whether the complaint alleged to be

frivolous or brought in bad faith is pending before the

commission or has been resolved. The commission shall act on a

complaint made under this subsection as provided by Subchapter D.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.206. FACTORS CONSIDERED FOR ASSESSMENT OF SANCTION.

The commission shall consider the following factors in assessing

a sanction:

(1) the seriousness of the violation, including the nature,

circumstances, consequences, extent, and gravity of the

violation;

(2) the history and extent of previous violations;

(3) the demonstrated good faith of the violator, including

actions taken to rectify the consequences of the violation;

(4) the penalty necessary to deter future violations; and

(5) any other matters that justice may require.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.207. APPEALS. (a) A respondent may appeal the

decision by filing a petition in a district court in the county

within 30 days after the date of the decision.

(b) An appeal brought under this section is not limited to

questions of law, and the substantial evidence rule does not

apply. The action shall be determined by trial de novo. The

reviewing court shall try all issues of fact and law in the

manner applicable to other civil suits in this state but may not

admit in evidence the fact of prior action by the commission or

the nature of that action, except to the limited extent necessary

to show compliance with statutory provisions that vest

jurisdiction in the court. A party is entitled, on demand, to a

jury determination of any issue of fact on which a jury

determination is available in other civil suits in this state.

(c) If the district court renders judgment for the petitioner,

and the petitioner is a county employee, the court may order

reinstatement of the county employee, payment of back pay, or

other appropriate relief.

(d) If the district court renders judgment for the petitioner,

the court may order appropriate relief, including costs and

attorney's fees.

Added by Acts 2009, 81st Leg., R.S., Ch.

799, Sec. 1, eff. September 1, 2009.

Sec. 161.208. DELIVERY OF RECORD TO REVIEWING COURT. (a) After

service of the petition on the commission and within the time

permitted for filing an answer or within additional time allowed

by the court, the commission shall send to the reviewing court

the original or a certi