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A BILL TO BE ENTITLED
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AN ACT
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relating to the creation of a county ethics commission in certain |
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counties; providing civil and criminal penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle B, Title 5, Local Government Code, is |
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amended by adding Chapter 161 to read as follows: |
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CHAPTER 161. COUNTY ETHICS COMMISSION IN CERTAIN COUNTIES |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 161.001. APPLICABILITY OF CHAPTER. This chapter |
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applies only to a county that: |
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(1) has a population of 650,000 or more; |
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(2) is located on the international border; and |
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(3) before September 1, 2009, had a county ethics |
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board appointed by the commissioners court. |
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Sec. 161.002. DEFINITIONS. In this chapter: |
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(1) "Commission" means a county ethics commission |
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created under this chapter. |
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(2) "Commission staff" means county employees |
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assigned to provide administrative support to the commission. |
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(3) "Communicates directly with" has the meaning |
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assigned by Section 305.002, Government Code. |
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(4) "County affiliate" means a person described and |
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determined by order of the commissioners court on recommendation of |
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the commission. As determined by the commissioners court, the term |
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includes: |
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(A) any person whose goods and services are |
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purchased under the terms of a purchase order or contractual |
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agreement with the county; and |
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(B) as determined by the county, any other |
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persons doing business with the county. |
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(5) "County employee" means a person employed by the |
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county or a county officer and includes a person employed in the |
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judicial branch of the county government who is not subject to the |
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Code of Judicial Conduct. The term does not include a county |
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officer. |
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(6) "County office" means a position held by a county |
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officer. |
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(7) "County officer" means a county judge, county |
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commissioner, county attorney, sheriff, county tax |
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assessor-collector, county clerk, district clerk, county |
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treasurer, county auditor, county purchasing agent, and constable. |
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(8) "County public servant" means a person elected, |
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selected, appointed, employed, or otherwise designated as one of |
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the following, even if the person has not yet qualified for or |
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assumed the duties of office: |
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(A) a county officer or county employee; |
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(B) a person appointed by the commissioners court |
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or a county officer to a position on one of the following, whether |
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the position is compensated or not: |
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(i) an authority, board, bureau, |
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commission, committee, council, department, district, division, or |
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office of the county; or |
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(ii) a multi-jurisdictional board; |
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(C) an attorney at law or notary public when |
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participating in the performance of a governmental function; |
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(D) a candidate for nomination or election to an |
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elected county office; or |
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(E) a person who is performing a governmental |
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function under a claim of right although the person is not legally |
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qualified or authorized to do so. |
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(9) "Lobbyist" means a person who, for compensation in |
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excess of an amount established by the commission, communicates |
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directly with a county officer or county employee to influence |
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official action. |
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Sec. 161.003. CONFLICT WITH CIVIL SERVICE AGREEMENT. (a) |
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This chapter may not be construed to affect: |
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(1) the terms of an agreement authorized by Chapter |
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174 between the county and county employees; or |
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(2) any provision of a civil service statute |
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applicable to a county employee. |
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(b) If an agreement authorized by Chapter 174 or a civil |
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service statute applicable to a county employee conflicts with this |
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chapter or an ethics code adopted or enforced under this chapter, |
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the agreement or civil service statute prevails. |
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[Sections 161.004-161.050 reserved for expansion] |
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SUBCHAPTER B. CREATION OF COMMISSION; APPOINTMENT OF COMMISSION |
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MEMBERS |
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Sec. 161.051. CREATION OF COMMISSION BY ORDER. (a) The |
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commissioners court of a county, by an order adopted by a majority |
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of the court's full membership, may create a county ethics |
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commission. |
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(b) A copy of an order adopted under this section shall be |
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placed in the minutes of the court's proceedings. The copy of the |
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order is public information. |
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Sec. 161.052. CREATION OF COMMISSION BY ELECTION. (a) A |
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county ethics commission may be created by approval of the system by |
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a majority of the qualified voters of the county voting at an |
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election called for that purpose. |
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(b) The commissioners court by order may call an election on |
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the question of the creation of a county ethics commission. |
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(c) The commissioners court shall hold the election called |
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under this section on the first authorized uniform election date |
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prescribed by Chapter 41, Election Code, that allows sufficient |
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time for publication of the notice required by Subsection (d) and |
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for compliance with any other requirements established by law. |
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(d) In addition to the notice required by Chapter 4, |
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Election Code, the commissioners court must publish in a newspaper |
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of general circulation in the county, and on the home page of the |
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county's Internet website, a substantial copy of the order calling |
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the election. The first newspaper publication must be made on or |
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before the 15th day before the date of the election and continue |
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once a week for two consecutive weeks, and the notice on the |
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county's Internet website shall remain on the home page each day |
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beginning not later than the 16th day before the election and ending |
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on the date of the election. |
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Sec. 161.053. BALLOT. The commissioners court shall order |
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the ballot at the election to be printed to provide for voting for |
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or against the proposition: "Creation of a county ethics |
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commission." |
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Sec. 161.054. RESULT OF ELECTION. If the proposition is |
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approved, the commissioners court shall declare the result and by |
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order create the county ethics commission. A copy of the order |
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creating the commission shall be placed in the minutes of the |
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court's proceedings. |
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Sec. 161.055. APPOINTMENT OF COMMISSION. (a) The |
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commission is composed of: |
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(1) five members, each of whom is appointed by the |
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county judge or a county commissioner; and |
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(2) four public representative members, appointed as |
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provided by this section. |
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(b) Not later than the 60th day after the date of the order |
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creating the commission as provided in Section 161.051 or Section |
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161.054: |
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(1) the county judge and each county commissioner |
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shall each appoint one member of the commission; and |
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(2) the commissioners court shall order publication of |
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a notice seeking applicants for four public representative members |
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of the commission. |
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(c) The commissioners court shall set the date for the first |
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meeting of the initial members appointed by the county judge and the |
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commissioners court. The first meeting must be set not earlier than |
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the 60th day after the date of the order creating the commission and |
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not later than the 90th day after the date of that order. |
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(d) At the first meeting of the commission, the initial |
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members shall elect one member as chair of the commission. |
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(e) Not later than the 120th day after the date of the order |
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creating the commission, the initial members shall appoint four |
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public representatives from the applications received pursuant to |
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Subsection (b)(2). After the initial public representatives are |
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appointed, the entire board shall appoint the successor public |
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representatives. |
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Sec. 161.056. ELIGIBILITY. (a) To be eligible for |
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appointment to the commission, a person must: |
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(1) be at least 25 years old; and |
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(2) have resided in the county for the two years |
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immediately preceding the date on which the person's term will |
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begin. |
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(b) A person is not eligible for appointment to the |
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commission if the person is: |
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(1) an elected officer; |
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(2) a county employee; |
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(3) a county affiliate; |
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(4) a person employed as a lobbyist; |
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(5) a person convicted of a misdemeanor involving |
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moral turpitude or a felony; or |
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(6) a person who is delinquent in payment of local, |
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state, or federal taxes. |
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Sec. 161.057. TERMS. (a) Members of the commission serve |
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staggered terms of two years, with the terms of four or five members |
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expiring each year. |
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(b) Notwithstanding Subsection (a), the initial members of |
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the commission shall select by lot five members to serve a term of |
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two years and four members to serve a term of one year. |
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Sec. 161.058. VACANCIES. (a) A vacancy on the commission |
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shall be filled for the remainder of the unexpired term as follows: |
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(1) if the vacancy represents a member appointed by |
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the county judge or a county commissioner, the vacancy is filled, |
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except as provided by Subsection (b), by appointment of that |
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officer or the officer's successor in office; or |
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(2) if the vacancy represents a public representative |
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member, by the commission. |
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(b) If the county judge or county commissioner, as |
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applicable, does not fill the vacancy before the 60th day after the |
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date the position becomes vacant, the commission may fill the |
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vacancy by a majority vote of the remaining members. |
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Sec. 161.059. MEETINGS. (a) The commission shall meet on a |
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regular basis. |
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(b) The commission is a governmental body for purposes of |
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Chapter 551, Government Code. |
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Sec. 161.060. REMOVAL OF COMMISSION MEMBER. A member of the |
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commission may be removed as provided by Chapter 87 if, after a |
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trial, the jury finds good cause for removal, including: |
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(1) failure to pay local, state, or federal taxes when |
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due; |
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(2) violation of the ethics code adopted by the |
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commission; |
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(3) conviction of a felony or misdemeanor; |
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(4) excessive absenteeism as determined by the |
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commission; and |
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(5) official misconduct. |
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Sec. 161.061. LEGAL REPRESENTATION. The county attorney, or |
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district attorney, or criminal district attorney, as appropriate, |
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with the duty to represent the county in civil matters shall |
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represent the commission in all legal matters. |
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[Sections 161.062-161.100 reserved for expansion] |
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SUBCHAPTER C. POWERS |
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Sec. 161.101. GENERAL POWERS. (a) The commission shall |
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adopt, publish, and enforce an ethics code governing county public |
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servants. |
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(b) The commission may adopt or use as a guide any ethics law |
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or rule of the United States, this state, or a political subdivision |
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in this state to the extent that the law or rule promotes the |
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purposes of this chapter and serves the needs of the county. |
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(c) The commission may adopt bylaws, rules, forms, |
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policies, or procedures to assist in the administration of the |
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commission's duties under this chapter. The commission may be |
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guided by Robert's Rules of Order to the extent that it does not |
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conflict with the constitution and laws of the United States and |
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this state or conflict with other guidelines adopted by the |
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commission. |
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(d) The commission shall be assigned staff by the county and |
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provided access to county resources to assist in its duties. |
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(e) The commission shall develop and implement polices that |
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provide the public with information on the commission and the |
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ethics code. |
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(f) The commission may adopt or use as a guide the |
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provisions of Subchapter D or E. |
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(g) The commission shall enforce the provisions of the |
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ethics code by issuing appropriate orders or recommendations or by |
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imposing appropriate penalties. |
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Sec. 161.102. ADVISORY OPINIONS. On the request of any |
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person covered by the ethics code adopted by the commission, the |
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commission may issue a written ethics advisory opinion regarding |
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the application of the ethics code to a specified existing or |
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hypothetical factual situation. The commission may not issue an |
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opinion that includes the name of any person who may be affected by |
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the opinion. The name of the person requesting the opinion shall be |
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deemed confidential. |
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Sec. 161.103. PUBLIC INTEREST INFORMATION. (a) The |
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commission shall develop plain-language materials as described by |
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this section. The commission shall post the information on the |
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county's Internet website and make the information otherwise |
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available to the public. |
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(b) The materials must include: |
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(1) a description of: |
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(A) the commission's responsibilities; |
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(B) the types of conduct that constitute a |
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violation of the ethics code adopted by the commission; |
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(C) the types of sanctions the commission may |
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impose; |
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(D) the commission's policies and procedures |
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relating to complaint investigation and resolution; and |
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(E) the duties of a person filing a complaint |
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with the commission; and |
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(2) a diagram showing the basic steps in the |
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commission's procedures relating to complaint investigation and |
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resolution. |
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(c) The commission shall provide the materials described by |
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this section to each complainant and respondent. |
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(d) The commission shall adopt a policy to effectively |
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distribute materials as required by this section. |
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Sec. 161.104. COMMISSION MEMBER EDUCATION AND TRAINING. |
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(a) Not later than the 60th day after the date a person is appointed |
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to the commission, the person must complete training on the |
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following matters: |
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(1) the legislation that created the commission; |
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(2) the role and functions of the commission; and |
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(3) the requirements of: |
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(A) the open meetings law, Chapter 551, |
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Government Code; |
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(B) the public information law, Chapter 552, |
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Government Code; and |
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(C) other laws relating to public officials, |
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including conflict-of-interest laws. |
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(b) A member of the commission must complete subsequent |
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training programs on the following matters: |
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(1) the ethics code adopted by the commission; and |
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(2) the procedural rules adopted by the commission. |
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(c) Other than the initial appointees and public |
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representatives, a person who is appointed to and qualifies for |
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office as a member of the commission may not vote, deliberate, or be |
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counted as a member in attendance at a meeting of the commission |
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until the person completes a training program that complies with |
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this section. |
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Sec. 161.105. EDUCATION AND TRAINING FOR PERSONS COVERED BY |
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ETHICS CODE. (a) The commission and commission staff shall provide |
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periodic training for persons covered by the ethics code adopted by |
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the commission on at least a quarterly basis. |
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(b) The training program must provide information |
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regarding: |
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(1) the ethics code; |
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(2) the role and functions of the commission; and |
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(3) plain-language materials as further described by |
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Section 161.103. |
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(c) In addition to the qualifications under Subchapter C, |
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Chapter 262, before submitting a bid, responding to a request for |
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qualifications or proposals, or otherwise contracting with the |
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county, an officer, principal, or other person with the authority |
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to bind the vendor shall complete training on the ethics code. |
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(d) A lobbyist intending to meet with a person covered by |
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the ethics code shall complete training on the ethics code. |
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[Sections 161.106-161.150 reserved for expansion] |
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SUBCHAPTER D. COMPLAINT PROCEDURES AND HEARINGS |
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Sec. 161.151. DEFINITIONS. In this subchapter: |
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(1) "Category One violation" means a violation of the |
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ethics code adopted by the commission as to which it is generally |
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not difficult to ascertain whether the violation occurred or did |
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not occur, including: |
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(A) the failure by a person required to file a |
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statement or report required under the ethics code to: |
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(i) file the statement or report in a manner |
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that complies with applicable requirements; or |
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(ii) file the statement or report in a |
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timely manner; |
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(B) a misrepresentation in a report required |
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under the ethics code; or |
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(C) a failure to respond in a timely manner to a |
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written notice under Section 161.156(b). |
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(2) "Category Two violation" means a violation of the |
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ethics code adopted by the commission that is not a Category One |
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violation. |
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Sec. 161.152. COMPLAINT PROCEDURES AND HEARINGS. The |
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commission may adopt the complaint procedures and hearings set |
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forth in this subchapter. |
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Sec. 161.153. HEARINGS AND SETTLEMENT. (a) The commission |
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may: |
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(1) hold a hearing on a sworn complaint and render a |
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decision on a complaint or report of a violation as provided by this |
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chapter; and |
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(2) agree to the settlement of issues. |
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(b) The commission may not: |
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(1) consider a complaint or vote to investigate a |
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matter outside the commission's jurisdiction; or |
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(2) investigate any matter except in response to a |
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sworn complaint. |
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Sec. 161.154. CATEGORIZATION OF VIOLATIONS. An allegation |
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of a violation listed as a Category One violation shall be treated |
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as a Category Two violation if the commission at any time determines |
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that: |
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(1) the allegation arises out of the same set of facts |
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as those that give rise to an allegation of a Category Two |
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violation, and the interests of justice or efficiency require |
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resolution of the allegations together; or |
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(2) the facts and law related to a particular |
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allegation or a defense to the allegation present a level of |
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complexity that prevents resolution through the preliminary review |
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procedures for Category One violations prescribed by Section |
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161.159(a). |
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Sec. 161.155. FILING OF COMPLAINT; CONTENTS. (a) An |
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individual may file with the commission a sworn complaint, on a form |
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prescribed by the commission, alleging that a person subject to the |
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ethics code has violated the ethics code. The commission shall make |
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the complaint form available on the county website. |
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(b) A complaint filed under this section must be in writing |
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and under oath and must set forth in simple, concise, and direct |
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statements: |
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(1) the name of the complainant; |
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(2) the street or mailing address of the complainant; |
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(3) the name of each respondent; |
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(4) the position or title of each respondent; |
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(5) the nature of the alleged violation, including if |
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possible the specific rule or provision of the ethics code alleged |
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to have been violated; |
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(6) a statement of the facts constituting the alleged |
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violation and the dates on which or period of time in which the |
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alleged violation occurred; and |
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(7) all documents or other material available to the |
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complainant that are relevant to the allegation, a list of all |
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documents or other material within the knowledge of the complainant |
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and available to the complainant that are relevant to the |
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allegation but that are not in the possession of the complainant, |
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including the location of the documents, if known, and a list of all |
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documents or other material within the knowledge of the complainant |
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that are unavailable to the complainant and that are relevant to the |
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complaint, including the location of the documents, if known. |
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(c) The complaint must be accompanied by an affidavit |
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stating either that the information contained in the complaint is |
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correct or that the complainant has good reason to believe and does |
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believe that the violation occurred. If the complaint is based on |
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information and belief, the complaint shall state the source and |
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basis of the information and belief. The complainant may swear to |
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the facts by oath before a notary public or other authorized |
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official. |
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(d) The complaint must state on its face an allegation that, |
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if true, constitutes a violation of the ethics code. |
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Sec. 161.156. PROCESSING OF COMPLAINT. (a) The commission |
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shall determine whether a sworn complaint filed with the commission |
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complies with the form requirements of Section 161.155. |
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(b) Not later than the 10th business day after the date a |
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complaint is filed, the commission shall send written notice to the |
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complainant and the respondent. The notice must state whether the |
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complaint complies with the form requirements of Section 161.155 |
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and include the information required by Section 161.158(c). |
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(c) If the commission determines that the complaint does not |
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comply with the form requirements, the commission shall send the |
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complaint to the complainant with the written notice, a statement |
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explaining how the complaint fails to comply, and a copy of the |
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rules for filing sworn complaints. The complainant may resubmit |
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the complaint not later than the 21st day after the date the notice |
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under Subsection (b) is mailed. If the commission determines that |
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the complaint is not resubmitted within the 21-day period, the |
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commission shall: |
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(1) dismiss the complaint; and |
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(2) not later than the 10th business day after the date |
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of the dismissal, send written notice to the complainant and the |
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respondent of the dismissal and the grounds for dismissal. |
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(d) If the commission determines that a complaint is |
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resubmitted under Subsection (c) within the 21-day period but is |
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not in proper form, the commission shall send the notice required |
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under Subsection (c), and the complainant may resubmit the |
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complaint under that subsection. |
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(e) If the commission determines that a complaint returned |
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to the complainant under Subsection (c) or (d) is resubmitted |
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within the 21-day period and that the complaint complies with the |
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form requirements, the commission shall send the written notice |
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under Subsection (b). |
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(f) If a complaint filed with the commission is within the |
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jurisdiction of the commission but may also be brought under the |
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provisions of a collective bargaining agreement authorized by |
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Chapter 174, a civil service rule under Section 158.0025, or a rule |
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of the sheriff's department, the commission shall defer |
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jurisdiction over the complaint to the sheriff for disposition. The |
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sheriff may return a complaint deferred under this subsection to |
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the commission for additional proceedings as the commission |
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determines appropriate. |
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Sec. 161.157. RETALIATION AGAINST COUNTY EMPLOYEE |
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REPORTING VIOLATION OF ETHICS CODE PROHIBITED. (a) The county may |
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not suspend or terminate the employment of or take other adverse |
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action against a county employee who in good faith files a complaint |
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or otherwise reports to the ethics commission, commission staff, or |
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another law enforcement authority a violation of the ethics code by |
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a person subject to the ethics code. |
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(b) The county may not suspend or terminate the employment |
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of or take other adverse action against a county employee who in |
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good faith participates in the complaint processing, preliminary |
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review, hearing, or any other aspect of the investigation and |
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resolution by the commission of an alleged violation of the ethics |
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code by a person subject to the ethics code. |
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(c) A commission created by a county under this chapter is a |
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part of the "local governmental entity" for purposes of Section |
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554.002, Government Code. |
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(d) An ethics code adopted by a commission pursuant to this |
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chapter is a "law" as defined by Section 554.001, Government Code. |
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Sec. 161.158. PRELIMINARY REVIEW: INITIATION. (a) The |
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commission staff shall promptly conduct a preliminary review on |
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receipt of a written complaint that is in compliance with the form |
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requirements of Section 161.155. |
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(b) The commission shall determine in writing whether the |
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commission has jurisdiction over the violation of the ethics code |
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provision alleged in a sworn complaint processed under Section |
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161.156. |
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(c) If the commission determines that it has jurisdiction, |
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it shall issue a notice under Section 161.156(b) that must include: |
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(1) a statement that the commission has jurisdiction |
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over the violation alleged in the complaint; |
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(2) a statement of whether the complaint will be |
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processed as a Category One violation or a Category Two violation, |
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subject to reconsideration as provided for by Section 161.154; |
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(3) the date by which the respondent is required to |
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respond to the notice; |
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(4) a copy of the complaint and the rules of procedure |
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of the commission; |
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(5) a statement of the rights of the respondent; |
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(6) a statement inviting the respondent to provide to |
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the commission any information relevant to the complaint; and |
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(7) a statement that a failure to timely respond to the |
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notice will be treated as a separate violation. |
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(d) If the commission determines that the commission does |
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not have jurisdiction over the violation alleged in the complaint, |
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the commission shall: |
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(1) dismiss the complaint; and |
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(2) not later than the 10th business day after the date |
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of the dismissal, send to the complainant and the respondent |
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written notice of the dismissal and the grounds for the dismissal. |
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Sec. 161.159. PRELIMINARY REVIEW: RESPONSE BY RESPONDENT. |
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(a) If the alleged violation is a Category One violation: |
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(1) the respondent must respond to the notice required |
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by Section 161.156(b) not later than the 10th business day after the |
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date the respondent receives the notice; and |
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(2) if the matter is not resolved by agreement between |
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the commission and the respondent before the 30th business day |
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after the date the respondent receives the notice under Section |
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161.156(b), the commission shall set the matter for a preliminary |
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review hearing to be held at the next commission meeting for which |
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notice has not yet been posted. |
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(b) If the alleged violation is a Category Two violation: |
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(1) the respondent must respond to the notice required |
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by Section 161.156(b) not later than the 25th business day after the |
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date the respondent receives the notice under Section 161.156(b); |
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and |
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(2) if the matter is not resolved by agreement between |
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the commission and the respondent before the 75th business day |
|
after the date the respondent receives the notice under Section |
|
161.156(b), the commission shall set the matter for a preliminary |
|
review hearing to be held at the next commission 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 commission sets the matter for a preliminary |
|
review hearing, the commission shall promptly send to the |
|
complainant and the respondent written notice of the date, time, |
|
and place of the preliminary review hearing. |
|
Sec. 161.160. PRELIMINARY REVIEW: WRITTEN QUESTIONS. |
|
During a preliminary review, the commission staff may submit to the |
|
complainant or respondent written questions reasonably intended to |
|
lead to the discovery of matters relevant to the investigation. |
|
Sec. 161.161. PRELIMINARY REVIEW AND PRELIMINARY REVIEW |
|
PROCEDURES. The commission shall adopt procedures for the conduct |
|
of preliminary reviews and preliminary review hearings. The |
|
procedures must include: |
|
(1) a reasonable time for responding to questions |
|
submitted by the commission and commission staff and subpoenas |
|
issued by the commission; and |
|
(2) the tolling or extension of otherwise applicable |
|
deadlines where: |
|
(A) the commission issues a subpoena and the |
|
commission'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 |
|
commission staff'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 commission |
|
staff's investigation or the rights of the respondent. |
|
Sec. 161.162. PRELIMINARY REVIEW HEARING: PROCEDURE. (a) |
|
The commission shall conduct a preliminary review hearing if: |
|
(1) following the preliminary review, the commission |
|
and the respondent cannot agree to the disposition of the |
|
complaint; or |
|
(2) the respondent in writing requests a hearing. |
|
(b) The commission shall 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) At or after the time the commission provides notice of a |
|
preliminary review hearing, the commission may submit to the |
|
complainant and the respondent written questions and require those |
|
questions to be answered under oath within a reasonable time. |
|
(d) During a preliminary review hearing, the commission: |
|
(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 commission to conclude that a violation |
|
within the jurisdiction of the commission has occurred. |
|
(e) During a preliminary review hearing, the respondent may |
|
appear before the commission with the assistance of counsel, if |
|
desired by the respondent, and present any relevant evidence, |
|
including a written statement. |
|
Sec. 161.163. PRELIMINARY REVIEW HEARING: RESOLUTION. (a) |
|
As soon as practicable after the completion of a preliminary review |
|
hearing, the commission by vote shall issue a decision stating: |
|
(1) whether there is credible evidence for the |
|
commission 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 |
|
commission to determine whether a violation within the jurisdiction |
|
of the commission has occurred. |
|
(b) If the commission determines that there is credible |
|
evidence for the commission to determine that a violation has |
|
occurred, the commission shall resolve and settle the complaint to |
|
the extent possible. If the commission successfully resolves and |
|
settles the complaint, not later than the 10th business day after |
|
the date of the final resolution of the complaint, the commission |
|
shall send to the complainant and the respondent a copy of the |
|
decision stating the commission's determination and written notice |
|
of the resolution and the terms of the resolution. If the |
|
commission is unsuccessful in resolving and settling the complaint, |
|
the commission shall: |
|
(1) order a formal hearing to be held in accordance |
|
with Sections 161.164 through 161.167; and |
|
(2) not later than the 10th business day after the date |
|
of the decision, send to the complainant and the respondent: |
|
(A) a copy of the decision; |
|
(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 commission determines that there is credible |
|
evidence for the commission to determine that a violation within |
|
the jurisdiction of the commission has not occurred, the commission |
|
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 decision stating the commission's determination and |
|
written notice of the dismissal and the grounds for dismissal. |
|
(d) If the commission determines that there is insufficient |
|
credible evidence for the commission to determine that a violation |
|
within the jurisdiction of the commission has occurred, the |
|
commission may dismiss the complaint or promptly conduct a formal |
|
hearing under Sections 161.164 through 161.167. Not later than the |
|
fifth business day after the date of the commission's determination |
|
under this subsection, the commission shall send to the complainant |
|
and the respondent a copy of the decision stating the commission's |
|
determination and written notice of the grounds for the |
|
determination. |
|
Sec. 161.164. FORMAL HEARING: STANDARD OF EVIDENCE. |
|
During a formal hearing, the commission shall determine by a |
|
preponderance of the evidence whether a violation within the |
|
jurisdiction of the commission has occurred. |
|
Sec. 161.165. FORMAL HEARING: SUBPOENAS AND WITNESSES. |
|
(a) A subpoena or other request to testify shall be served |
|
sufficiently in advance of the scheduled appearance at a formal |
|
hearing to allow a reasonable period, as determined by the |
|
commission, for the person subpoenaed to prepare for the hearing |
|
and to employ counsel if desired. |
|
(b) Except as provided by Section 161.166(a)(1), the |
|
commission may order that a person may not, except as specifically |
|
authorized by the presiding officer, make public the name of a |
|
witness subpoenaed by the commission before the date of that |
|
witness's scheduled appearance. |
|
(c) A witness may read a written statement or present a |
|
brief oral opening statement at a formal hearing. |
|
(d) A person whose name is mentioned or who is identified or |
|
referred to in testimony or in statements made by a commission |
|
member, commission staff member, or witness and who reasonably |
|
believes that the statement tends to adversely affect the person's |
|
reputation may: |
|
(1) request to appear personally before the commission |
|
to testify in the person's own behalf; or |
|
(2) file a sworn statement of facts relevant to the |
|
testimony or statement that the person believes adversely affects |
|
the person's reputation. |
|
(e) A witness who testifies at a formal hearing must be |
|
sworn. |
|
Sec. 161.166. FORMAL HEARING: PROCEDURE. (a) Not later |
|
than the fifth business day before the date of a scheduled formal |
|
hearing or on the granting of a motion for discovery by the |
|
respondent, the commission shall provide to the complainant and to |
|
the respondent: |
|
(1) a list of proposed witnesses to be called at the |
|
hearing; |
|
(2) copies of all documents expected to be introduced |
|
as exhibits at the hearing; and |
|
(3) a brief statement as to the nature of the testimony |
|
expected to be given by each witness to be called at the hearing. |
|
(b) The respondent may not be compelled to give evidence or |
|
testimony that violates the respondent's right against |
|
self-incrimination under the United States Constitution or the |
|
Texas Constitution. |
|
(c) The commission shall adopt rules governing discovery, |
|
hearings, and related procedures consistent with this chapter and |
|
Chapter 2001, Government Code. |
|
Sec. 161.167. FORMAL HEARING: RESOLUTION. (a) Not later |
|
than the 30th business day after the date of the formal hearing, the |
|
commission shall convene a meeting and by motion shall issue: |
|
(1) a final decision stating the resolution of the |
|
formal hearing; and |
|
(2) a written report stating the commission's findings |
|
of fact, conclusions of law, and recommendation of imposition of a |
|
civil penalty, if any. |
|
(b) Six members of the commission are required for a quorum |
|
at a formal hearing. |
|
(c) Not later than the 10th business day after the date the |
|
commission issues the final decision and written report, the |
|
commission shall: |
|
(1) send a copy of the decision and report to the |
|
complainant and to the respondent; and |
|
(2) make a copy of the decision and report available to |
|
the public during reasonable business hours. |
|
Sec. 161.168. STATUS OF COMPLAINT. (a) The commission |
|
shall keep an information file about each sworn or other complaint |
|
filed with the commission. The file must include: |
|
(1) the name of the person who filed the complaint; |
|
(2) the date the complaint is received by the |
|
commission; |
|
(3) the subject matter of the complaint; |
|
(4) the name of each person contacted in relation to |
|
the complaint; |
|
(5) a summary of the results of the review or |
|
investigation of the complaint; and |
|
(6) an explanation of the reason the file was closed, |
|
if the commission closed the file without taking action other than |
|
to investigate the complaint. |
|
(b) The commission shall provide to the person filing the |
|
complaint and to each person who is a subject of the complaint a |
|
copy of the commission's policies and procedures relating to |
|
complaint investigation and resolution. |
|
(c) In addition to the notice required by Sections 161.156 |
|
and 161.167, the commission, at least quarterly until final |
|
disposition of a complaint, shall notify the person who filed the |
|
complaint and each person who is a subject of the complaint of the |
|
status of the sworn complaint. |
|
(d) The commission shall resolve a complaint within six |
|
months of its receipt unless it makes a determination that |
|
additional time is required to resolve the matter. On a |
|
determination that additional time is required, the commission may |
|
extend the investigation in three-month increments. Each extension |
|
requires separate approval by the commission. |
|
(e) If the commission does not resolve the matter within six |
|
months or within an authorized extension, the complaint shall be |
|
deemed to have been dismissed without prejudice. |
|
Sec. 161.169. EXTENSION OF DEADLINE. The commission may, |
|
on its own motion or on the reasonable request of a respondent, |
|
extend any deadline for action relating to a sworn complaint, |
|
preliminary review hearing, or formal hearing. |
|
Sec. 161.170. SUBPOENA. (a) In connection with a formal |
|
hearing, the commission, as authorized by this chapter, may |
|
subpoena and examine witnesses and documents that directly relate |
|
to a sworn complaint. |
|
(b) In connection with a preliminary review, the |
|
commission, for good cause and as authorized by this chapter, may |
|
subpoena documents and witnesses on application by the commission |
|
staff and a motion adopted by a vote of at least five members of the |
|
commission, for the purpose of attempting to obtain from the |
|
documents or witnesses specifically identified information, if the |
|
commission reasonably believes that the specifically identified |
|
information: |
|
(1) is likely to be determinative as to whether the |
|
subject of an investigation has violated a provision of the ethics |
|
code; |
|
(2) can be determined from the documents or is known by |
|
the witnesses; and |
|
(3) is not reasonably available through a less |
|
intrusive means. |
|
(c) The commission shall adopt procedures for the issuance |
|
of subpoenas under this section. |
|
(d) A copy of a subpoena issued under this section must be |
|
delivered to the respondent. |
|
(e) 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. |
|
(f) 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. |
|
(g) A respondent has the right to quash a subpoena as |
|
provided by law. |
|
(h) A subpoenaed witness who attends a commission hearing is |
|
entitled to the same mileage and per diem payments as a witness who |
|
appears before a grand jury. A person who provides subpoenaed |
|
documents to the commission is entitled to reimbursement from the |
|
commission for the person's reasonable cost of producing the |
|
documents. |
|
Sec. 161.171. STATUS OF COMPLAINANT. The complainant is |
|
not a party to a preliminary review, preliminary review hearing, or |
|
formal hearing under this subchapter. |
|
Sec. 161.172. APPLICABILITY OF OTHER ACTS. (a) Except as |
|
provided by Section 161.173(b), Chapter 552, Government Code, does |
|
not apply to documents or any additional evidence relating to the |
|
processing, preliminary review, preliminary review hearing, or |
|
resolution of a sworn complaint. |
|
(b) Chapter 551, Government Code, does not apply to the |
|
processing, preliminary review, preliminary review hearing, or |
|
resolution of a sworn complaint, but does apply to a formal hearing |
|
held under Sections 161.164 through 161.167. |
|
(c) Subchapters C through H, Chapter 2001, Government Code, |
|
apply only to a formal hearing under this subchapter, the |
|
resolution of a formal hearing, and the appeal of a final order of |
|
the commission, and only to the extent consistent with this |
|
chapter. |
|
Sec. 161.173. CONFIDENTIALITY; OFFENSE. (a) Except as |
|
provided by Subsection (b), (c), or (m), proceedings at a |
|
preliminary review hearing performed by the commission, a sworn |
|
complaint, and documents and any additional evidence relating to |
|
the processing, preliminary review, preliminary review hearing, or |
|
resolution of a sworn complaint are confidential and may not be |
|
disclosed unless entered into the record of a formal hearing or a |
|
judicial proceeding, except that a document or statement that was |
|
previously public information remains public information. |
|
(b) An order issued by the commission after the completion |
|
of a preliminary review or hearing determining that a violation |
|
other than a technical or de minimis violation has occurred is not |
|
confidential. |
|
(c) Commission staff may, for the purpose of investigating a |
|
sworn complaint, disclose to the complainant, the respondent, or a |
|
witness information that is otherwise confidential and relates to |
|
the sworn complaint if: |
|
(1) the employee makes a good faith determination that |
|
the disclosure is necessary to conduct the investigation; |
|
(2) the employee's determination under Subdivision (1) |
|
is objectively reasonable; |
|
(3) the commission specifically authorizes the |
|
disclosure; and |
|
(4) the employee discloses only the information |
|
necessary to conduct the investigation. |
|
(d) A person commits an offense if the person intentionally: |
|
(1) destroys, mutilates, or alters information |
|
obtained under this chapter; or |
|
(2) removes information obtained under this chapter |
|
without permission as provided by this chapter. |
|
(e) An offense under Subsection (d) is a misdemeanor |
|
punishable by: |
|
(1) a fine of not less than $25 or more than $4,000; |
|
(2) confinement in the county jail for not less than |
|
three days or more than three months; or |
|
(3) both the fine and confinement. |
|
(f) A person commits an offense if the person distributes |
|
information considered confidential under the terms of this |
|
chapter. |
|
(g) A person who obtains access to confidential information |
|
under this chapter commits an offense if that person knowingly: |
|
(1) uses the confidential information for a purpose |
|
other than the purpose for which the information was received or for |
|
a purpose unrelated to this chapter, including solicitation of |
|
political contributions or solicitation of clients; |
|
(2) permits inspection of the confidential |
|
information by a person who is not authorized to inspect the |
|
information; or |
|
(3) discloses the confidential information to a person |
|
who is not authorized to receive the information. |
|
(h) An offense under Subsection (f) or (g) is a misdemeanor |
|
punishable by: |
|
(1) a fine of not more than $1,000; |
|
(2) confinement in the county jail for not more than |
|
six months; or |
|
(3) both the fine and confinement. |
|
(i) If conduct that constitutes an offense under this |
|
section also constitutes an offense under the Penal Code, including |
|
under Section 37.10 or 39.06 of that code, the person may be |
|
prosecuted under this section or the Penal Code, as applicable. |
|
(j) A violation under this section constitutes official |
|
misconduct. |
|
(k) In addition to other penalties, the respondent may |
|
commence a civil action for damages on the respondent's own behalf |
|
against any person who is alleged to have disclosed information |
|
made confidential by this subchapter. Any action under this chapter |
|
must be brought in a district court in the county. The court may |
|
award costs and attorney's fees. |
|
(l) A county employee is subject to discipline, including |
|
termination of employment, for disclosing confidential information |
|
under this chapter. |
|
(m) The commission may disclose confidential information in |
|
making a referral to a prosecuting attorney concerning an offense |
|
under this section. |
|
(n) A county employee who discloses confidential |
|
information in compliance with Subsection (c) or (m) is not subject |
|
to Subsections (d)-(l). |
|
Sec. 161.174. AVAILABILITY OF COMMISSION ORDERS ON |
|
INTERNET. (a) As soon as practicable following a preliminary |
|
review, preliminary review hearing, or formal hearing at which the |
|
commission determines that a person has committed a violation |
|
within the commission's jurisdiction, the commission shall make |
|
available on the Internet: |
|
(1) a copy of the commission's order stating the |
|
determination; or |
|
(2) a summary of the commission's order. |
|
(b) This section does not apply to a determination of a |
|
violation that is technical or de minimis. |
|
[Sections 161.175-161.200 reserved for expansion] |
|
SUBCHAPTER E. ENFORCEMENT |
|
Sec. 161.201. ORDER. The commission may: |
|
(1) issue and enforce a cease and desist order to stop |
|
a violation; |
|
(2) issue an affirmative order to require compliance |
|
with the laws administered and enforced by the commission; and |
|
(3) issue an order of public censure with or without a |
|
civil penalty imposed under Section 161.202. |
|
Sec. 161.202. CIVIL PENALTY FOR DELAY OR VIOLATION. (a) The |
|
commission may impose a civil penalty of not more than $500 for each |
|
delay in complying with a commission order. |
|
(b) The commission may impose a civil penalty of not more |
|
than $4,000 for a violation of the ethics code adopted by the |
|
commission. |
|
(c) A penalty paid under this section shall be deposited to |
|
the credit of the general fund of the county. |
|
(d) This section is cumulative of any other available |
|
sanctions under this chapter. |
|
Sec. 161.203. WAIVER OR REDUCTION OF PENALTY. (a) A person |
|
may request the waiver or reduction of a civil penalty by submitting |
|
an affidavit to the commission that states the filer's reasons for |
|
requesting a waiver or reduction. |
|
(b) The commission may waive or reduce a civil penalty if |
|
the commission finds that a waiver or reduction is in the public |
|
interest and in the interest of justice. The commission shall |
|
consider the following before acting to waive or reduce a civil |
|
penalty: |
|
(1) the facts and circumstances supporting the |
|
person's request for a waiver or reduction; |
|
(2) the seriousness of the violation, including the |
|
nature, circumstances, consequences, extent, and gravity of the |
|
violation, and the amount of the penalty; |
|
(3) any history of previous violations by the person; |
|
(4) the demonstrated good faith of the person, |
|
including actions taken to rectify the consequences of the |
|
violation; |
|
(5) the penalty necessary to deter future violations; |
|
and |
|
(6) any other matter that justice may require. |
|
(c) After hearing the waiver request, the commission may |
|
affirm, reduce, or waive the civil penalty. |
|
Sec. 161.204. NOTIFICATION OF REGULATORY OR SUPERVISORY |
|
ENTITY. The commission may notify the appropriate regulatory or |
|
supervisory entity, including any agency, the State Commission on |
|
Judicial Conduct, or the State Bar of Texas, of a violation of the |
|
ethics code adopted by the commission. |
|
Sec. 161.205. CIVIL PENALTY FOR FRIVOLOUS OR BAD-FAITH |
|
COMPLAINT. (a) The commission may impose a civil penalty of not |
|
more than $4,000 for the filing of a frivolous or bad-faith |
|
complaint. In this subsection, "frivolous complaint" means a |
|
complaint that is groundless and brought in bad faith or is |
|
groundless and brought for the purpose of harassment. |
|
(b) In addition to other penalties, the respondent may |
|
commence a civil action on the respondent's own behalf against any |
|
person who filed a frivolous complaint against the respondent. Any |
|
action under this chapter shall be brought in a district court in |
|
the county. The court may award costs and attorney's fees. |
|
(c) A person may file a sworn complaint with the commission, |
|
in accordance with Section 161.155, alleging that a complaint |
|
relating to that person filed with the commission is frivolous or |
|
brought in bad faith. A complaint may be filed under this |
|
subsection without regard to whether the complaint alleged to be |
|
frivolous or brought in bad faith is pending before the commission |
|
or has been resolved. The commission shall act on a complaint made |
|
under this subsection as provided by Subchapter D. |
|
Sec. 161.206. FACTORS CONSIDERED FOR ASSESSMENT OF |
|
SANCTION. The commission shall consider the following factors in |
|
assessing a sanction: |
|
(1) the seriousness of the violation, including the |
|
nature, circumstances, consequences, extent, and gravity of the |
|
violation; |
|
(2) the history and extent of previous violations; |
|
(3) the demonstrated good faith of the violator, |
|
including actions taken to rectify the consequences of the |
|
violation; |
|
(4) the penalty necessary to deter future violations; |
|
and |
|
(5) any other matters that justice may require. |
|
Sec. 161.207. APPEALS. (a) A respondent may appeal the |
|
decision by filing a petition in a district court in the county |
|
within 30 days after the date of the decision. |
|
(b) An appeal under this section is under the substantial |
|
evidence rule, and the judgment of the district court is appealable |
|
as in other civil cases. |
|
(c) If the district court renders judgment for the |
|
petitioner, and the petitioner is a county employee, the court may |
|
order reinstatement of the county employee, payment of back pay, or |
|
other appropriate relief. |
|
(d) If the district court renders judgment for the |
|
petitioner, the court may order appropriate relief, including costs |
|
and attorney's fees. |
|
Sec. 161.208. REVIEW UNDER SUBSTANTIAL EVIDENCE RULE. In |
|
an appeal under Section 161.207, the district court may not |
|
substitute its judgment for the judgment of the commission on the |
|
weight of the evidence on questions committed to the commission's |
|
discretion but: |
|
(1) may affirm the commission's decision in whole or in |
|
part; and |
|
(2) shall reverse or remand the case for further |
|
proceedings if substantial rights of the petitioner have been |
|
prejudiced because the commission's findings, inferences, |
|
conclusions, or decisions are: |
|
(A) in violation of a constitutional or statutory |
|
provision; |
|
(B) in excess of the commission's authority; |
|
(C) made through unlawful procedure; |
|
(D) affected by other error of law; |
|
(E) not reasonably supported by substantial |
|
evidence considering the reliable and probative evidence in the |
|
record as a whole; or |
|
(F) arbitrary or capricious, characterized by |
|
abuse of discretion, or clearly an unwarranted exercise of |
|
discretion. |
|
Sec. 161.209. PROCEDURES FOR REVIEW UNDER SUBSTANTIAL |
|
EVIDENCE RULE. (a) After service of the petition on the |
|
commission and within the time permitted for filing an answer or |
|
within additional time allowed by the court, the commission shall |
|
send to the reviewing court the original or a certified copy of the |
|
entire record of the proceeding under review. The record shall be |
|
filed with the clerk of the court. The record may be shortened by |
|
stipulation of all parties to the review proceedings. The court may |
|
assess additional costs against a party who unreasonably refuses to |
|
stipulate to limit the record, unless the party pays all costs of |
|
record preparation. The court may require or permit later |
|
corrections or additions to the record. |
|
(b) A party may apply to the court to present additional |
|
evidence. If the court is satisfied that the additional evidence is |
|
material and that there were good reasons for the failure to present |
|
it in the proceeding before the commission, the court may order that |
|
the additional evidence be taken before the commission on |
|
conditions determined by the court. The commission may change its |
|
findings and decisions by reason of the additional evidence and |
|
shall file the additional evidence and any changes, new findings, |
|
or decisions with the reviewing court. |
|
(c) The party seeking judicial review shall offer, and the |
|
reviewing court shall admit, the commission record into evidence as |
|
an exhibit. |
|
(d) The court shall conduct the review sitting without a |
|
jury and is confined to the commission record, except that the court |
|
may receive evidence of procedural irregularities alleged to have |
|
occurred before the commission that are not reflected in the |
|
record. |
|
Sec. 161.210. COST OF PREPARING COMMISSION RECORD. (a) The |
|
commission may require a party who appeals a final decision under |
|
Section 161.207 to pay one-half of the cost of preparation of the |
|
original or a certified copy of the record of the commission |
|
proceeding that is required to be sent to the reviewing court. |
|
(b) A charge imposed under this section is a court cost and |
|
may be assessed by the court in accordance with the Texas Rules of |
|
Civil Procedure. |
|
[Sections 161.211-161.300 reserved for expansion] |
|
SUBCHAPTER F. DISSOLUTION OF COMMISSION |
|
Sec. 161.301. PETITION FOR DISSOLUTION OF COMMISSION. If, |
|
after an ethics commission created pursuant to Section 161.052 has |
|
been in effect for at least one year, 10 percent of the qualified |
|
voters of the county petition the commissioners court to dissolve |
|
the commission, the commissioners court shall call an election to |
|
determine whether the commission will be dissolved. |
|
Sec. 161.302. DISSOLUTION ELECTION. (a) An election under |
|
this subchapter must be held in the manner provided for an election |
|
to create a county ethics commission. |
|
(b) The ballot for the election shall be printed to provide |
|
for voting for or against the proposition: "Dissolution of the |
|
county ethics commission." |
|
Sec. 161.303. DISSOLUTION OF COMMISSION. If the proposition |
|
is approved by a majority of the qualified voters voting at the |
|
election, the commissioners court shall declare the result and by |
|
order dissolve the ethics commission. A copy of the order |
|
dissolving the commission shall be placed in the minutes of the |
|
court's proceedings. |
|
Sec. 161.304. SAVING PROVISIONS. The dissolution of a |
|
county ethics commission under this subchapter does not affect: |
|
(1) the prior operation of the ethics code adopted by |
|
the commission or any prior action taken under it; |
|
(2) any violation of the ethics code or any penalty, |
|
forfeiture, or punishment incurred for a violation of the ethics |
|
code before the effective date of the dissolution; or |
|
(3) any investigation, proceeding, or remedy |
|
concerning any penalty, forfeiture, or punishment, and the |
|
investigation, proceeding, or remedy may be instituted, continued, |
|
or enforced, and the penalty, forfeiture, or punishment imposed, as |
|
if the commission had not been dissolved. |
|
SECTION 2. This Act takes effect September 1, 2009. |