SRC-JLB S.B. 268 78(R)   BILL ANALYSIS


Senate Research Center   S.B. 268
78R3046 ESH-DBy: Ellis, Rodney
Government Organization
2/24/2003
As Filed


DIGEST AND PURPOSE 

The Texas Sunset Commission's review of the Texas Ethics Commission
(commission) found that the commission's ability to investigate complaints
is limited, and the commission's hearing process is lengthy and has
redundant elements.  The review also found that the commission's
electronic filing system, which allows the public greater access to
financial disclosure reports through the Internet, is not being used to
its fullest extent.  As proposed, S.B. 268 expands the commission's
authority to conduct investigations; removes unnecessary steps in the
complaint process; expands the use of electronic filing for campaign
finance and lobby activity information; and attempts to improve the
clarity and accessibility of public information. 

RULEMAKING AUTHORITY

Rulemaking authority is expressly granted to the Texas Ethics Commission
in SECTION 1.06 (Section 571.1211, Government Code), SECTION 2.02 (Section
305.0064, Government Code), and SECTION 2.03 (Section 252.0131, Election
Code) of this bill. 

SECTION BY SECTION ANALYSIS

ARTICLE 1.  OPERATION OF TEXAS ETHICS COMMISSION

SECTION 1.01.  Amends Section 571.002, Government Code, by adding
Subdivision (2-a), to define "executive director." 

SECTION 1.02.  Amends Section 571.022, Government Code, as follows:

Sec.  571.022.  SUNSET PROVISION.  Continues the Texas Ethics Commission
(commission) for a 12-year period until 2015.   

SECTION 1.03.  Amends Chapter 571B, Government Code, by adding Sections
571.0231, 571.0271, and 571.030-571.0304, as follows: 
 
Sec. 571.0231.  GROUNDS FOR REMOVAL.  (a)  Updates standard Sunset
language relating to grounds for removal of commission members.  

Sec. 571.0271.  COMMISSION MEMBER TRAINING.  (a) Prohibits a person who is
appointed to and qualifies for office as a member of the commission from
voting, deliberating, or being counted as a member in attendance at a
meeting of the commission until the person completes a training program
that complies with this section. 

(b) Requires the training program to provide the person with certain
information. 

(c) Provides that a person appointed to the commission is entitled to
reimbursement, as provided by the General Appropriations Act, for the
travel expenses incurred in attending the training program regardless of
whether the attendance at the program  occurs before or after the person
qualifies for office. 

Sec. 571.030.  RESTRICTION ON COMMISSION MEMBERSHIP OR EMPLOYMENT AS
GENERAL COUNSEL.  Prohibits a person from being a member of the commission
or acting as the general counsel to the commission if the person is
required to register as a lobbyist under Chapter 305, Government Code,
because of the person's activities for compensation on behalf of a
profession related to the operation of the commission. 

Sec. 571.0301.  SEPARATION OF RESPONSIBILITIES.  Requires the commission
to develop and implement policies that clearly separate the policymaking
responsibilities of the commission and the management responsibilities of
the executive director and the staff of the commission. 

Sec. 571.0302.  INFORMATION TO MEMBERS AND EMPLOYEES.  Requires the
executive director or the executive director's designee to provide to
members and employees of the commission, as often as necessary,
information regarding the requirements for office or employment under this
chapter, including information regarding a person's responsibilities under
applicable laws relating to standards of conduct for state officers or
employees. 

Sec. 571.0303.  EQUAL EMPLOYMENT POLICY.  (a) Updates standard Sunset
language requiring the executive director to maintain an aqual employment
policy. 

Sec. 571.0304.  TRAINING ON STATE EMPLOYEE INCENTIVE PROGRAM. Requires the
executive director or the executive director's designee to provide to
commission employees information and training on the benefits and methods
of participation in the State Employee Incentive Program. 

SECTION 1.04.  Amends Section 571.033, Government Code, by renumbering it
as Section 571.0221, Government Code, and amending it as follows: 
 
Sec. 571.0221.  DISCRIMINATION PROHIBITED.  Requires appointments to the
commission to be made without regard to the race, color, disability, sex,
age, national origin, or religion of the appointees. 
 
SECTION 1.05.  Amends Chapter 571C, Government Code, by adding Sections
571.0671 and 571.078, as follows: 
 
Sec. 571.0671.  PROPOSITION OF TECHNOLOGICAL SOLUTIONS.  Requires the
commission to develop and implement a policy requiring the executive
director and commission employees to research and propose appropriate
technological solutions to improve the commission's ability to perform its
functions.  Requires the technological solutions to ensure that the public
is able to easily find information about the commission on the Internet,
ensure that persons who want to use the commission's services are able to
interact with the commission through the Internet and access any service
that can be provided effectively through the Internet, and be
cost-effective and developed through the commission's planning processes. 

Sec. 571.078.  NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION.
(a) Requires the commission to develop and implement a policy to encourage
the use of certain procedures. 

(b) Requires the commission's procedures relating to alternative dispute
resolution to conform, to the extent possible, to any model guidelines
issued by the State Office of Administrative Hearings for the use of
alternative dispute resolution by state agencies. 

(c)  Requires the commission to designate a trained person to coordinate
the  implementation of the policy adopted under Subsection (a), serve as a
resource for any training needed to implement the procedures for
negotiated rulemaking or alternative dispute resolution, and collect  data
concerning the effectiveness of those procedures, as implemented by the
commission. 
 
SECTION  1.06.  Amends Chapter 571E, Government Code, by adding Section
571.1211, as follows: 
 
Sec. 571.1211.  RULES REGARDING COMPLAINT PROCEDURES.  (a) Requires the
commission to adopt rules governing the time in which and the manner by
which the commission shall ensure the timely processing of complaints
under this subchapter.  Requires the rules to prescribe the maximum time
permitted for a respondent to respond to correspondence from the
commission and establish a process for the commission to determine what
action the commission will take if the respondent does not respond within
the prescribed time. 
 
(b)  Requires rules to require the commission, in making its
determination, to consider the seriousness of the alleged violation and
the respondent's previous history, if any, of violations of laws within
the commission's jurisdiction. 

SECTION 1.07.  Amends Section 571.122(a), Government Code, to require the
commission to make the complaint form provided for in this section
available on the Internet. 

SECTION 1.08.  Amends Section 571.123, Government Code, by adding
Subsection (b-1) to require the written notice, if the commission
determines that the complaint complies with the form requirements, to also
state whether the commission has jurisdiction over the violation alleged
in the complaint. 

SECTION 1.09.  Amends Sections 571.124(c), (e), and (f), Government Code,
as follows: 
 
(c) Requires the executive director, rather than the commission by record
vote, to   determine in writing whether the commission has jurisdiction
over the violation of law alleged in a sworn complaint processed under
Section 571.123. 
 
(e) Requires the notice under Section 571.123(b), if the executive
director, rather than the commission, determines that the commission has
jurisdiction, to include certain information. 

(f) Makes conforming changes.

SECTION 1.10.  Amends Chapter 571E, Government Code, by adding Section
571.1241, as follows: 
 
Sec. 571.1241.  APPEAL OF EXECUTIVE DIRECTOR'S DETERMINATION OF NO
JURISDICTION.  (a) Authorizes the complainant, if the executive director
determines that the commission does not have jurisdiction over the
violation alleged in the complaint, to file an appeal to the commission.
Requires an appeal under this section to be filed not later than the 30th
day after the date the complainant receives the executive director's
determination. 
 
(b) Requires the commission, on receipt of an appeal under Subsection (a),
to promptly schedule the appeal for hearing and send to the complainant
and the respondent written notice of the date, time, and place of the
appeal hearing. 
 
(c) Provides that during a hearing under this section the only issue that
may be considered is whether the commission has jurisdiction over the
violation alleged in the complaint and authorizes the commission to
consider all submitted evidence related to the complaint and review any
documents or material related to the complaint, and requires the
commission to determine whether it has jurisdiction over the violation
alleged in the complaint. 
  
(d) Authorizes the respondent or complainant, during a hearing under this
section, to appear before the commission with the assistance of counsel,
if desired, and present any relevant evidence, including a written
statement. 
 
(e) Requires the commission, not later than the fifth business day after
the date of a hearing under this section, to send written notice to the
complainant and the respondent stating whether the commission has
jurisdiction over the violation alleged in the complaint. 

(f) Requires the notice, if the commission determines that the commission
has jurisdiction, to include the items listed in Sections 571.124(e)(1)
through (4). 
 
(g) Requires the commission, if the commission determines that the
commission does not have jurisdiction over the violation alleged in the
complaint, to follow certain plans and procedures. 

SECTION 1.11.  Amends Section 571.125, Government Code, as follows:
 
Sec. 571.125.  New heading:  PRELIMINARY REVIEW HEARING:  PROCEDURE.  (a)
Requires the commission to conduct a preliminary review hearing if
following the preliminary review, the commission and the respondent cannot
agree to the disposition of the complaint or motion or the respondent in
writing requests a hearing. 
 
(b) Requires the commission to provide written notice to the complainant,
if any, and the respondent of the date, time, and place the commission
will conduct the preliminary review hearing. 
 
(c)  Provides that during a preliminary review hearing, the commission may
submit written questions and require those questions to be answered under
oath in addition to other actions the commission is already authorized to
take. 
 
(d) Makes a conforming change. 
SECTION 1.12.  Amends the heading to Section 571.126, Government Code, to
read as follows: 
 
 Sec. 571.126.  PRELIMINARY REVIEW HEARING:  RESOLUTION.

SECTION 1.13.  Amends Sections 571.126(a), (b), and (d), Government Code,
as follows: 
 
(a) Requires the commission by record vote, as soon as practicable after
the completion of a preliminary review hearing, to issue a decision with
certain information.   
 
(b) Adds items to the list of information and materials the commission is
required to send to the complainant and respondent.  Makes conforming
changes. 
 
(d) Makes conforming changes.

SECTION 1.14.  Amends Chapter 571E, Government Code, by amending Sections
571.135 and 571.136 and adding Section 571.1351, as follows: 
 
Sec. 571.135.  New heading:  PUBLIC INTEREST INFORMATION.  (a) Requires
the commission to develop plain-language materials as described by this
section.  Requires the commission to distribute the materials to the
public and appropriate state agencies. 
 
  (b) Requires the materials to include certain information.
  
(c) Requires the commission to provide the materials described by this
section to each complainant and respondent. 
 
(d) Requires the commission to adopt a policy to effectively distribute
materials as required by this section. 
 
Sec. 571.1351.  STATUS OF COMPLAINT.  (a) Requires the commission to keep
an information file about each sworn or other complaint filed with the
commission.  Requires the file to include certain information. 
  
(b) Requires the commission to 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) Requires the commission, at least quarterly until final disposition of
a complaint, to notify the person who filed the complaint and each person
who is a subject of the complaint, if any, of the status of the sworn or
other complaint in addition to the notice required by Sections 571.124
through 571.132. 

Sec. 571.136.  EXTENSION OF DEADLINE.  Makes a conforming change.
 
SECTION 1.15.  Amends Section 571.137, Government Code, by amending
Subsection (a) and adding Subsections (a-1) and (a-2), as follows: 
 
(a) Makes a conforming change.
 
(a-1) Authorizes the commission, for good cause and as authorized by this
chapter, to subpoena documents that directly relate to a sworn complaint
in connection with a preliminary review.  Requires the commission to adopt
guidelines for the issuance of subpoenas under this subsection. 

(a-2)  Requires a copy of a subpoena issued under this section to be
delivered to the respondent. 
 
SECTION 1.16.  Amends Section 571.138, Government Code, to make a
conforming change. 
 
SECTION 1.17.  Amends Sections 571.139(a) and (b), Government Code, to
make conforming changes. 

SECTION 1.18.  Amends Section 571.140, Government Code, by amending
Subsections (a) and (b) and adding Subsection (a-1) as follows: 
 
(a) Makes conforming changes.
 
(a-1) Authorizes an employee of the commission to disclose information
made confidential under Subsection (a) if the employee is investigating a
sworn complaint or motion, disclosure of the information is necessary to
conduct the investigation, and the employee acts in good faith to maintain
the confidentiality of the information to the greatest extent possible. 

(b) Makes a conforming change.

SECTION 1.19.  Amends Chapter 571E, Government Code, by adding Sections
571.141 and 571.142, as follows: 
 
 Sec. 571.141.  DISCLOSURE OF CONFIDENTIAL INFORMATION TO STATE COMMISSION
ON JUDICIAL CONDUCT OR STATE BAR OF TEXAS.  (a) Authorizes the commission
to disclose to the State Commission on Judicial Conduct or the State Bar
of Texas information relating to an investigation or proceeding under this
chapter to the extent necessary for the recipient of the information to
perform an official duty or function to certain entities. 
  
(b) Authorizes the commission to disclose confidential information under
this section on its own motion or at the request of the State Commission
on Judicial Conduct or the state bar. 
 
(c) Provides that information disclosed to the State Commission on
Judicial Conduct or the state bar under this section remains confidential,
and Section 571.140 applies to an officer or employee of the State
Commission on Judicial Conduct or the state bar as if the person were an
officer or employee of the commission. 

Sec. 571.142.  AVAILABILITY OF COMMISSION ORDERS ON INTERNET.  (a)
Requires the commission, as soon as practicable following a preliminary
review hearing or formal hearing at which the commission determines that a
person has committed a violation within the commission's jurisdiction, to
make available on the Internet certain information. 
 
(b) Provides that this section does not apply to a determination of a
violation that is technical or de minimis. 

SECTION 1.20.  Amends Section 571.171, Government Code, as follows:
 
 Sec. 571.171.  INITIATION AND REFERRAL.  (a) Created from existing text.

(b) Requires the executive director, if after a preliminary investigation
of a complaint the executive director reasonably believes that the person
who is the subject of the complaint has violated a criminal statute, to
refer the matter to the appropriate prosecuting attorney for criminal
prosecution. 
 
(c) Authorizes the commission or executive director to disclose
confidential information in making a referral to a prosecuting attorney
under this section. 

ARTICLE 2.  LOBBYIST AND CAMPAIGN FINANCE REPORTING

SECTION 2.01.  Amends Section 305.006(a), Government Code, to require each
registrant to file with the commission a written, verified report
concerning the activities described by this section. Deletes the
requirement that the report be on a form prescribed by the commission. 

SECTION 2.02.  Amends Chapter 305A, Government Code, by adding Section
305.0064, as follows: 
 
Sec. 305.0064.  ELECTRONIC FILING OF ACTIVITY REPORTS.  (a) Requires each
report filed under Section 305.006 to be filed by computer diskette,
modem, or other means of electronic transfer, using computer software
provided by the commission or computer software that meets commission
specifications for a standard file format except as provided by Subsection
(b) or (c). 
 
(b) Requires the commission to adopt rules under which a registrant may
file paper reports on a form prescribed by the commission.  Requires the
rules to be designed to ensure that use of the electronic filing system
under Subsection (a) is maximized and registrants may file paper reports
for good cause only. 
  
(c) Requires the commission to implement an electronic filing system under
Subsection (a) not later than January 1, 2005.  Requires the commission by
rule to identify the first reporting period under Section 305.007 for
which a report must be made as required by Subsection (a).  Provides that
this subsection expires January 1, 2005. 

(d) Provides that a registration fee under Section 305.005(c)(1) or (2)
for the calendar years 2004 and 2005 is increased by an amount determined
by the commission as sufficient to generate additional revenue necessary
to develop and implement an electronic filing system under Subsection (a).
Authorizes the commission to impose a different increase for each fee
under Section 305.005(c).  Provides that this subsection expires January
1, 2006. 

SECTION 2.03.  Amends Chapter 252, Election Code, by adding Section
252.0131, as follows: 
 
Sec. 252.0131.  TERMINATION OF CANDIDATE'S CAMPAIGN TREASURER APPOINTMENT
BY COMMISSION.  (a) Requires the commission by rule to adopt a process by
which the commission may terminate the campaign treasurer appointment of a
candidate who meets certain criteria. 
 
(b) Requires the commission, before the commission may terminate a
candidate's campaign treasurer appointment, to consider the proposed
termination in a regularly scheduled open meeting. 
  
(c) Requires rules adopted under this section to specify the minimum time
following a candidate's last report under Chapter 254 before the
commission may propose terminating the candidate's campaign treasurer
appointment and require written notice to the affected candidate regarding
certain information. 
 
(d) Provides that the termination of a campaign treasurer appointment
under this section takes effect on the 30th day after the date of the
commission meeting at which the commission votes to terminate the
appointment.  Requires the commission, following that meeting, to promptly
notify the affected candidate that the appointment has been terminated.
Requires the notice to state the effective date of the termination. 

SECTION 2.04.  Amends Section 254.036(c), Election Code, to authorize a
candidate, officeholder, or political committee that is required to file
reports with the commission to file reports that comply with Subsection
(a) if the candidate, officeholder, or campaign treasurer of the committee
files with the commission an affidavit stating that in addition to other
exceptions permitted by this Subsection candidate, officeholder, or
committee does not in a calendar year accept political contributions that
in the aggregate exceed the amount prescribed by commission rule or make
political expenditures that in the aggregate exceed the amount prescribed
by commission rule.  Makes conforming changes. 

SECTION 2.05.  Amends Section 254.0361, Election Code, by transferring it
to Chapter 571C, Government Code, redesignating it as Section 571.0671,
Government Code, and amending it as follows: 
 
Sec. 571.0671.  REQUIREMENTS FOR ELECTRONIC FILING SOFTWARE.  (a) Makes
conforming changes. 
 
(b) Makes conforming changes.
  
(c) Authorizes the commission to provide software for use under Section
254.036(b), Election Code, or Section 305.0064 by making the software
available on the Internet. Provides that if the commission makes the
software available on the Internet, the  commission is not required to
provide the software on computer diskettes, CD-ROMs, or other storage
media without charge to persons required to file reports under that
section but may charge a reasonable fee for providing the software on
storage media. 

ARTICLE 3.  REPEALER; TRANSITION; EFFECTIVE DATE

SECTION 3.01.  Repealer:  Sections 571.124(d), 571.127, and 571.128,
Government Code, and 
Section 254.036(g), Election Code.

SECTION 3.02.  Makes application of Section 571.0271 and 571.030,
Government Code, as added by this Act (regarding commission membership),
prospective. 

SECTION 3.03.  Effective date:  September 1, 2003.