PART 2. TEXAS ETHICS COMMISSION
CHAPTER 6. ORGANIZATION AND ADMINISTRATION
The Texas Ethics Commission (the TEC) proposes amendments to Texas Ethics Commission Rules in Chapter 6.
Specifically, the TEC proposes amendments to rules in Subchapter A of Chapter 6 (relating to General Rules), including §6.1 regarding Definitions, and §6.9 regarding Computation of Time.
The TEC also proposes amendments to rules in Subchapter B of Chapter 6 (relating to Officers and Employees of the Commission), including §6.21 regarding Officers of the Commission, and §6.23 regarding Commission Staff.
The TEC also proposes amendments to rules in Subchapter C of Chapter 6 (relating to Commission Meetings), including §6.35 regarding Called Meetings, §6.39 regarding Meeting Agenda, §6.43 regarding Speakers Addressing the Commission, §6.45 regarding Order and Conduct of Commission Meeting and §6.47 regarding Tape Recording of Meeting; Minutes.
This proposal, along with the contemporaneous proposal of the repeal of certain other rules in Chapter 6, amends the rules used in the organization and administration of the TEC.
State law requires state agencies to "review and consider for readoption each of its rules ... not later than the fourth anniversary of the date on which the rule takes effect and every four years after that date." Tex. Gov't Code §2001.039. The law further requires agencies to "readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section." Id.
The TEC is continuing its comprehensive review with a review of the TEC's rules regarding its organization and administration, which are codified in Chapter 6. The repeal of some rules and adoption of amendments to other rules seek to shorten, simplify, and reorganize the rules to eliminate surplusage and improve clarity on the TEC's organization and administration.
James Tinley, General Counsel, has determined that for the first five-year period the proposed amended rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed amended rules.
The General Counsel has also determined that for each year of the first five years the proposed amended rules are in effect, the public benefit will be consistency and clarity in the Commission's rules regarding sworn complaint procedures. There will not be an effect on small businesses, microbusinesses or rural communities. There is no anticipated economic cost to persons who are required to comply with the proposed amended rules.
The General Counsel has determined that during the first five years that the proposed amended rules are in effect, they will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; expand, limit, or repeal an existing regulation; create a new regulation; increase or decrease the number of individuals subject to the rules' applicability; or positively or adversely affect this state's economy.
The Commission invites comments on the proposed amended rules from any member of the public. A written statement should be emailed to public_comment@ethics.state.tx.us, or mailed or delivered to J.R. Johnson, Executive Director, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070. A person who wants to offer spoken comments to the Commission concerning the proposed amended rules may do so at any Commission meeting during the agenda item relating to the proposed amended rules. Information concerning the date, time, and location of Commission meetings is available by telephoning (512) 463-5800 or on the Commission's website at www.ethics.state.tx.us.
SUBCHAPTER A. GENERAL RULES
The amended rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed amended rules affect Subchapter E of Chapter 571 of the Government Code
§6.1.Definitions.
The following words and terms, when used in this Part [title], shall have the following meanings, unless the context
clearly indicates otherwise.
(1) Act--The Government Code, Chapter 571 (concerning Texas Ethics Commission).
(2) Administrative Procedure Act--The Government Code, Chapter 2001 (concerning Administrative Procedure).
(3) Agency--The state agency governed by the commission, as it functions and operates through the administrative staff hired by the commission and its executive director.
(4) Commission--The Texas Ethics Commission, as constituted and described in the Texas Constitution, Article 3, §24a and in the Government Code, Chapter 571.
(5) Document--A report, complaint, response, letter, or any other written material.
(6) Executive director--The person employed by the commission to serve as the agency's chief administrative officer, or any other employee of the commission acting as the designee of the executive director.
[(7) Family member or relative--An
individual who is related within the second degree of affinity or
consanguinity, as defined by the Government Code, Chapter 573, Subchapter
B (concerning Relationships by Consanguinity or by Affinity).]
(7) [(8)] Filer--A person required
to file a report with the commission or a local filing authority in
accordance with a law enforced by the commission [this title].
(8) [(9)] Individual--A human
being who has been born and is alive.
(9) [(10)] Local filing authority--A
public servant other than the Texas Ethics Commission with whom a
filer must file a report in accordance with a law enforced by
the commission [ this title, as identified in §20.5
of this title (relating to Reports Filed with a County Filing Authority)
and §20.7 of this title (relating to Reports Filed with Other
Local Filing Authority)].
(10) [(11)] Open Meetings Law--The
Government Code, Chapter 551 (concerning Open Meetings).
(11) [(12)] Open Records Law--The
Government Code, Chapter 552 (concerning Open Records).
(12) [(13)] Person--An individual,
representative, corporation, association, or other entity, including
any nonprofit corporation, or any agency or instrumentality of federal,
state, or local government.
(13) [(14)] Postmark--A postal
cancellation by the United States Postal Service that contains the
post office name, state, and zip code and the month, day, and year
the canceling post office accepted custody of the material.
[(15) Presiding officer--The person
elected to serve as the commission's chairman or chairwoman under §6.21
of this title (relating to Officers of the Commission).]
(14) [(16)] Report--Any document
or other information required to be filed under this title.
(15) [(17)] Staff--Employees
of the commission, hired by the commission or the executive director.
(16) [(18)] Title 15--The Election
Code, Title 15 (concerning Regulating Political Funds and Campaigns).
[(19) First responder--An individual who is:]
[(A) a peace officer whose duties include responding rapidly to an emergency;]
[(B) fire protection personnel, as that term is defined by Section 419.021, Government Code;]
[(C) a volunteer firefighter who performs firefighting duties on behalf of a political subdivision;]
[(D) an ambulance driver; or]
[(E) an individual certified as emergency medical services personnel by the Department of State Health Services.]
[(20) Judicial office--The office of:]
[(A) chief justice or justice, supreme court;]
[(B) presiding judge or judge, court of criminal appeals;]
[(C) chief justice or justice, court of appeals;]
[(D) district judge;]
[(E) judge, statutory county court; or]
[(F) judge, statutory probate court.]
[(21) Non-judicial office--An elective public office and the secretary of state, but not including an office described by paragraph (20) of this section.]
§6.9.Computation of Time.
(a) This section states how to compute a period of
time prescribed or allowed by this Part [title],
by any order of the agency, or by any applicable statute. The day
of the act, event, or default after which the designated period of
time begins to run is not included. The last day of the period is
included. However, if the last day of the time period would not be
a business day as defined by Section 552.0031 of the Texas Government
Code [Saturday, a Sunday, or a legal holiday], the
period is extended until the next day that is [not] a business
day. [Saturday, a Sunday, or a legal holiday. A legal holiday,
for purposes of this section, is any day other than a Saturday or
Sunday that the agency is closed for a holiday established by state law.]
(b) A time period described by statute or this Part [title] to be a certain number of business days is calculated
under subsection (a) of this section without including any day [Saturday, Sunday, or legal holiday] within that time period that
is not a business day as defined by Section 552.0031 of the Texas
Government Code.
(c) A document required to be filed or served by a
deadline established by statute or this Part [title] is filed or served when it is actually received. A document
may be deemed to be filed or served when it is deposited with the
United States Postal Service, properly addressed to the recipient,
with all postage prepaid. The date of the postmark on the envelope
for the document is presumed to be the date the document was deposited
with the United States Postal Service.
(d) A document filed or served by delivery to the United States Postal Service is presumed to have been filed before 5:00 p.m. on the date indicated by the postmark.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403289
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The amended rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed amended rules affect Subchapter E of Chapter 571 of the Government Code.
§6.21.Officers of the Commission.
[(a) The commission shall select a
presiding officer and a vice-presiding officer.]
(a) [(b)] The commission's [Commission] chair and vice chair shall be [officers
are] elected annually by majority vote of the commission. The
election shall take place at the first commission meeting held after
June 1 of each year. Each officer shall serve until his or her successor
is selected.
(b) [(c)] The chair [presiding officer] and vice chair [the vice-presiding
officer] shall be members of [elected from]
different political parties [party caucus lists].
(c) [(d)] The chair and
vice chair [presiding officer] may be re-elected;
however, if a new chair [presiding officer]
is elected he or she [it] should be a member
of [from] a different political party [caucus
list] than the former chair [presiding officer].
(d) [(e)] The person elected
to serve as the commission's chair shall also serve as the commission's
presiding officer. The presiding officer shall preside at all
meetings of the commission. While presiding, the presiding officer
shall direct the order of the meeting, appoint committees and persons
to chair committees, recognize persons to be heard at hearings, set
reasonable and necessary time limits for speakers, and take other
actions to clarify issues and preserve order. Unless the chair
appoints a presiding officer pro tem pursuant to subsection (f) of
this section, [When the presiding officer is absent,]
the vice chair [vice-presiding officer] shall
perform all duties of the presiding officer when the chair is absent.
(e) [(f)] In addition to
other powers identified elsewhere in this Part, the The]
presiding officer may perform the following actions of the commission:
(1) Sign previously approved subpoenas and orders;
(2) Schedule hearings and meetings; and
(3) Timely respond to [litigation] matters
on behalf of the commission, including litigation matters, when
action is required before the next scheduled meeting [and is
within the scope of the authorization granted by the commission; and..
[(4) Respond to matters on behalf
of the commission when action is required and is within the scope
of the authorization granted by the commission.]
(f) [(g)] The chair [presiding officer] may appoint a commissioner as presiding
officer [chair] pro tem to preside over a hearing
held by the commission.
(g) If the chair or vice chair is unable to participate in a matter pending before the commission, either may select a replacement from among the other commissioners to exercise their authority and fulfill their duties under this Part and any other applicable law.
§6.23.Commission Staff.
(a) The executive director is the chief administrative officer of the agency. The executive director shall attend commission meetings at the pleasure of the commission and serve as liaison between the commission and the public.
(b) The commission delegates to the executive director all powers conferred on the commission by the Act or other law, except for any power that requires a vote of the commission or approval
of the chair. Any action taken by the executive director shall
conform with all applicable law, including this Part [title
] and other policies that may be adopted from time to time by
the commission.
(c) The executive director shall attend commission meetings unless specifically excused by the commission and shall perform any duties or assignments established by the commission.
(d) The general counsel shall attend commission meetings unless specifically excused by the commission, shall provide legal advice to the commission and executive director, and shall perform any duties delegated by the executive director.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403290
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
1 TAC §§6.35, 6.39, 6.43, 6.45, 6.47
The amended rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed amended rules affect Subchapter E of Chapter 571 of the Government Code.
§6.35.Called Meetings.
The executive director shall give notice to each commissioner
of the date and time of each meeting. Notice under this section shall
be provided a reasonable amount of time in advance of the meeting[,
and may be by telephone, fax, or mail].
§6.39.Meeting Agenda.
(a) The agenda shall consist of agenda items proposed
by the executive director prior to the meetings for which the agenda
is specified. At a reasonable time before filing a copy of the agenda
as required by the Open Meetings Law, the executive director shall
provide a copy of the proposed agenda to the presiding officer. If
the presiding officer is not reasonably available, the executive director
shall [provide a copy of the proposed agenda to the vice-presiding
officer. If the vice-presiding officer is not reasonably available,
the executive director shall] provide a copy of the proposed
agenda to any two commissioners.
(b) The presiding officer, a commission member with the consent of the presiding officer, or any two commissioners may direct the executive director to include an item on the agenda if it complies with the posting requirements specified by law. The presiding officer may direct the executive director to remove an item included on a proposed agenda unless that item is requested by two commission members other than the presiding officer.
(c) A member of the public may ask the executive director to place an item on a proposed agenda. The executive director shall advise the commission of the request and may include the item on a proposed agenda.
§6.43.Speakers Addressing the Commission.
(a) The executive director shall prescribe a speaker registration form. Each person who wishes to speak at a commission meeting shall provide the following information:
(1) the speaker's name;
(2) the person or entity the speaker represents, if any;
(3) the agenda item the speaker wishes to address; and
(4) his or her mailing address and telephone number.
(b) Any person who addresses the commission shall state
his or her name and the name of the person or entity the speaker represents,
if any, for purposes of the [tape] recording under §6.47
of this title (relating to [Tape] Recording of Meeting; Minutes).
§6.45.Order and Conduct of Commission Meeting.
(a) The presiding officer shall preside at all meetings
of the commission. The presiding officer shall direct the order of
the meeting in accordance with its agenda, recognize persons to be
heard, set reasonable and necessary time limits for speakers, maintain
and enforce appropriate standards of conduct, and take any other action
necessary in his or her discretion to clarify issues and preserve
order. [When the presiding officer is absent, the vice-presiding
officer shall perform all duties under this
subsection.]
(b) Commission meetings shall be conducted in accordance with rules and procedures set forth in the most recently published edition of Robert's Rules of Order.
(c) With unanimous consent of all commissioners present, any provision or requirement of this section may be waived.
(d) No action of the commission that otherwise complies with law shall be void or invalid because the action was taken in violation of a rule or procedure established by this section.
§6.47.[Tape] Recording of Meeting; Minutes.
(a) All meetings of the commission shall be [tape]
recorded. The [tape] recording shall be the official record
of actions taken at the meeting.
(b) The presiding officer shall announce the names of each commissioner who makes or seconds a motion to be voted upon by the commission. After the vote has been taken, the presiding officer shall announce the vote in a manner that identifies how each commissioner voted, if a commissioner abstained, or if a commissioner was not present for the vote.
(c) The executive director shall prepare minutes after each meeting that reflect all commission votes and other actions taken during the meeting. The minutes shall be approved by vote of the commission at a subsequent commission meeting.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403291
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The Texas Ethics Commission (the TEC) proposes the repeal of Texas Ethics Commission rules in Chapter 6.
Specifically, the TEC proposes the repeal of rules in Subchapter A of Chapter 6 (relating to General Rules), including §6.5 regarding Authority to Adopt Rules, and §6.7 regarding Actions That Require Six Votes.
The TEC also proposes the repeal of rules in Subchapter C of Chapter 6 (relating to Commission Meetings), including §6.31 regarding Quorum, and §6.33 regarding Frequency of Meetings.
This proposal, along with the contemporaneous proposal of amendments to certain other rules in Chapter 6, amends the rules used in the organization and administration of the TEC.
State law requires state agencies to "review and consider for readoption each of its rules...not later than the fourth anniversary of the date on which the rule takes effect and every four years after that date." Tex. Gov't Code §2001.039. The law further requires agencies to "readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section." Id.
The TEC is continuing its comprehensive review with a review of the TEC's rules regarding its organization and administration, which are codified in Chapter 6. The repeal of some rules and adoption of amendments to other rules seek to shorten, simplify, and reorganize the rules to eliminate surplusage and improve clarity on the TEC's organization and administration.
James Tinley, General Counsel, has determined that for the first five-year period the proposed repealed rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed repealed rules.
The General Counsel has also determined that for each year of the first five years the proposed repealed rules are in effect, the public benefit will be consistency and clarity in the Commission's rules regarding sworn complaint procedures. There will not be an effect on small businesses, microbusinesses or rural communities. There is no anticipated economic cost to persons who are required to comply with the proposed repealed rules.
The General Counsel has determined that during the first five years that the proposed repealed rules are in effect, they will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; expand, limit, or repeal an existing regulation; create a new regulation; increase or decrease the number of individuals subject to the rules' applicability; or positively or adversely affect this state's economy.
The Commission invites comments on the proposed repealed rules from any member of the public. A written statement should be emailed to public_comment@ethics.state.tx.us, or mailed or delivered to J.R. Johnson, Executive Director, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070. A person who wants to offer spoken comments to the Commission concerning the proposed repealed rules may do so at any Commission meeting during the agenda item relating to the proposed repealed rules. Information concerning the date, time, and location of Commission meetings is available by telephoning (512) 463-5800 or on the Commission's website at www.ethics.state.tx.us.
SUBCHAPTER A. GENERAL RULES
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Chapter 571 of the Government Code.
§6.5.Authority to Adopt Rules.
§6.7.Actions That Require Six Votes.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403287
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Chapter 571 of the Government Code.
§6.31.Quorum.
§6.33.Frequency of Meetings.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403288
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The Texas Ethics Commission (the TEC) proposes new Chapter 12 in TEC Rules, regarding Sworn Complaints.
Specifically, the TEC proposes new rules in Subchapter A of Chapter 12 (relating to Respondent's Rights), including §12.1 regarding Notice, §12.2 regarding Representation by Counsel, §12.3 regarding Ex Parte Communications and §12.4 regarding Agreements to be in Writing.
The TEC also proposes new rules in Subchapter B of Chapter 12 (relating to Filing and Initial Processing of Complaint), including §12.11 regarding Deadline for Filing a Complaint, §12.12 regarding File Date for a Complaint, §12.13 regarding Description of Violation, §12.14 regarding Statement of Facts and §12.15 regarding Commission Initiated Complaint.
The TEC also proposes new rules in Subchapter C of Chapter 12 (relating to Investigation and Discovery), including §12.21 regarding Response to Notice of Complaint, §12.22 regarding Written Questions, §12.23 regarding Production of Documents During Preliminary Review, §12.24 regarding Proposed Settlement Before Preliminary Review Hearing, §12.25 regarding Subpoenas Issued by Commission, and §12.26 regarding Subpoenas Issued by Counsel for the Respondent.
The TEC also proposes new rules in Division 1 of Subchapter D of Chapter 12 (relating to Pleadings and Motions: General Rules), including §12.31 regarding Purpose and Effect of Motions, §12.32 regarding Required Form of Motions, §12.33 regarding Certificate of Conference, §12.34 regarding Motion Deadlines, §12.35 regarding Method of Filing, §12.36 regarding Service of Documents, §12.37 regarding Non-conforming Documents, §12.38 regarding Amended and Supplemental Filings, and §12.39 regarding Application of this Subchapter.
The TEC also proposes new rules in Division 2 of Subchapter D of Chapter 12 (relating to Pleadings and Motions: Types of Motions), including §12.41 regarding Motion to Extend Time, §12.42 regarding Motion for Continuance, §12.43 regarding Motion to Dismiss, §12.44 regarding Motion for Summary Disposition, and 12.45 regarding Motion for Sanctions.
The TEC also proposes new rules in Division 1 of Subchapter E of Chapter 12 (relating to Hearings: General Rules), including §12.51 regarding Conduct and Decorum, §12.52 regarding Private Deliberations, and §12.53 regarding Record of Rulings.
The TEC also proposes new rules in Division 2 of Subchapter E of Chapter 12 (relating to Hearings: Powers of the Presiding Officer), including §12.61 regarding Selection and Delegation of Presiding Officer, §12.62 regarding Set Hearing, §12.63 regarding Consolidate or Sever Matters for Hearing, §12.64 regarding Conduct Hearings, §12.65 regarding Rule of Evidentiary Matters and §12.66 regarding Sign Orders and Subpoenas.
The TEC also proposes new rules in Division 3 of Subchapter E of Chapter 12 (relating to Hearings: Preliminary Review Hearings), including §12.71 regarding Notice of Preliminary Review Hearing, and §12.72 regarding Preliminary Review Hearing.
The TEC also proposes new rules in Division 4 of Subchapter E of Chapter 12 (relating to Hearings: Formal Hearings), including §12.81 regarding Order of Formal Hearing, §12.82 regarding Notice of Formal Hearing, §12.83 regarding Formal Hearing: Venue, §12.84 regarding Presentation of Evidence, §12.85 regarding Rules of Evidence, and §12.86 regarding Number of Exhibits.
The TEC also proposes new rules in Subchapter F of Chapter 12 (relating to Resolutions), including §12.91 regarding Agreed Resolutions, §12.92 regarding Resolution of Technical or De Minimis Allegations, §12.93 regarding Default Proceedings and §12.94 regarding Final Orders After Formal Hearings.
This proposal, along with the contemporaneous proposal of the repeal of all existing rules in Chapter 12, amends the rules used in sworn complaint proceedings at the Ethics Commission.
State law requires state agencies to "review and consider for readoption each of its rules ... not later than the fourth anniversary of the date on which the rule takes effect and every four years after that date." Tex. Gov't Code § 2001.039. The law further requires agencies to "readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section." Id.
The TEC started its comprehensive review with the TEC's rules regarding sworn complaint procedures, which are codified in Chapter 12. The repeal of existing rules and adoption of new rules seek to shorten, simplify, and reorganize the rules to eliminate surplusage and improve clarity on sworn complaint procedures.
James Tinley, General Counsel, has determined that for the first five-year period the proposed rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed rules.
The General Counsel has also determined that for each year of the first five years the proposed rules are in effect, the public benefit will be consistency and clarity in the TEC's rules regarding sworn complaint procedures. There will not be an effect on small businesses, microbusinesses or rural communities. There is no anticipated economic cost to persons who are required to comply with the proposed rules.
The General Counsel has determined that during the first five years that the proposed rules are in effect, they will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; expand, limit, or repeal an existing regulation; create a new regulation; increase or decrease the number of individuals subject to the rules' applicability; or positively or adversely affect this state's economy.
The TEC invites comments on the proposed rules from any member of the public. A written statement should be emailed to public_comment@ethics.state.tx.us, or mailed or delivered to J.R. Johnson, Executive Director, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070. A person who wants to offer spoken comments to the Commission concerning the proposed rules may do so at any Commission meeting during the agenda item relating to the proposed rules. Information concerning the date, time, and location of Commission meetings is available by telephoning (512) 463-5800 or on the TEC's website at www.ethics.state.tx.us.
SUBCHAPTER A. RESPONDENT'S RIGHTS
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.1.Notice.
(a) A notice required to be sent to a complainant under chapter 571 of the Government Code shall be sent to the address most recently provided to the commission by the complainant.
(b) A notice required to be sent to a respondent under chapter 571 of the Government Code shall be sent to the address provided to the commission by the complainant or, if the respondent has provided a different address, to the address most recently provided to the commission by the respondent.
(c) A person entitled to receive notice may waive that right by filing a written waiver with the executive director.
(d) A respondent or complainant in a complaint may waive the right under section 571.032 of the Government Code to receive written notices related to the complaint by registered or certified mail, restricted delivery, return receipt requested, and may agree to receive written notices related to the complaint by first class mail, electronic mail, or other means.
§12.2.Representation by Counsel.
(a) A respondent has the right to be represented by counsel retained by the respondent in any proceeding of a complaint.
(b) Counsel representing a respondent shall enter an appearance with the commission that contains the counsel's mailing address, email address, telephone number, and state bar number. If the respondent's counsel is not licensed to practice law in Texas, the representative must show authority to appear as the respondent's counsel.
(c) The commission may, through the approval of its executive director, admit an attorney who is a resident of and licensed to practice law in another state, and who is not an active member of the State Bar of Texas, to represent a respondent before the commission if the nonresident attorney complies with the requirements of Tex. Gov't Code §82.0361 and Rule XIX of the Rules Governing Admission to the Bar of Texas and files a motion, accompanied by proof of compliance with those provisions, with the commission requesting to be admitted to represent a respondent.
(d) This rule does not allow a person to engage in the unauthorized practice of law.
§12.3.Ex Parte Communications.
Neither commission enforcement staff nor respondents may communicate with commissioners or the general counsel outside the presence of the other party for the purpose of influencing a decision on a pending sworn complaint after the commission accepts jurisdiction over an allegation.
§12.4.Agreements to be in Writing.
No stipulation or agreement with respect to any matter in a complaint shall be effective unless it has been:
(1) reduced to writing and signed by each person making the stipulation or agreement, or by that person's authorized representative, and filed with the commission; or
(2) entered into the record during the course of a hearing.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403322
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.11.Deadline for Filing a Complaint.
(a) The commission has no jurisdiction over an alleged violation:
(1) if the alleged violation is also a criminal offense, and if, at the time the complaint is filed or at the time the commission would vote to initiate a preliminary review of a matter, the allegation would be barred from criminal prosecution by operation of the applicable statute of limitations; or
(2) if the alleged violation is not also a criminal offense and if the allegation is based on facts that occurred more than three years before the date the complaint is filed or the date the commission would vote to initiate a preliminary review of a matter.
(b) For purposes of this section, a complaint is not filed unless it complies with the requirements of section 571.122 of the Government Code.
§12.12.File Date for a Complaint.
The file date for a complaint is the date the complaint is received by the commission.
§12.13.Description of Violation.
(a) If a complaint does not include the specific rule or provision of law alleged to have been violated, the complaint must clearly and concisely describe facts that, if true, would constitute a violation of a law administered and enforced by the commission.
(b) A complaint that erroneously cites a specific rule or provision of law is nonetheless sufficient if the correct citation can reasonably be ascertained by the commission. When a complaint erroneously cites a specific rule or provision of law, the commission shall cite the correct rule or provision of law in the notice provided to the respondent.
§12.14.Statement of Facts.
(a) The alleged facts must provide sufficient detail to reasonably place the respondent on notice of the law violated and of the manner and means by which the violation allegedly occurred and to afford the respondent a basis on which to prepare a response.
(b) The facts alleged may adopt by reference the content of documents submitted with the complaint. However, the allegations must reasonably identify those portions of the document that are relevant to the alleged violation.
§12.15.Commission Initiated Complaint.
(a) Commission staff may gather or present documents or evidence, make recommendations, and otherwise communicate with commissioners in contemplation of, or in preparation for, a commission initiated preliminary review. Commissioners may request documents, evidence, or recommendations, and otherwise communicate with commission staff in contemplation of, or in preparation for, a commission initiated preliminary review.
(b) A preliminary review initiated by the commission under section 571.124(b) of the Government Code is deemed to be a complaint for purposes of all further proceedings under chapter 571 of the Government Code and of this chapter.
(c) Documents or evidence gathered by the commission and commission staff in contemplation of, or in preparation for, a commission initiated preliminary review are related to the processing of a preliminary review or motion for the purposes of sections 571.139 and 571.140 of the Government Code.
(d) Discussions between the commission and commission staff regarding gathering documents or evidence in contemplation of, or in preparation for, a commission initiated preliminary review are related to the processing of a preliminary review or motion for the purposes of sections 571.139 and 571.140 of the Government Code.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403323
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.21.Response to Notice of Complaint.
(a) The response required by section 571.1242 of the Government Code must:
(1) be in writing;
(2) admit or deny the allegations set forth in the complaint; and
(3) be signed by the respondent.
(b) If a respondent does not submit a response within the time period prescribed by section 571.1242 of the Government Code, the commission may issue an order imposing a civil penalty for failure to file a response.
(c) If a respondent does not submit a response that satisfies the requirements of subsection (a) of this section, the commission may issue an order imposing a penalty for failure to file a complete response.
§12.22.Written Questions.
(a) A complainant or respondent must respond to written questions not later than 15 business days after receiving the written questions.
(b) If the commission staff submits written questions to a respondent, the 120-day deadline for the commission to propose an agreement to the respondent or dismiss the complaint (provided in section 571.1242(g) of the Government Code) is tolled beginning on the date the commission sends the written questions and resets on the date the commission receives the respondent's written response.
§12.23.Production of Documents During Preliminary Review.
(a) Before applying for the commission to issue a subpoena under §571.137(a-1) of the Government Code, commission staff must send to the person from whom records are sought a written request for the production or inspection of documents or other tangible things that:
(1) specifies the items to be produced or inspected, either by individual item or by category, and describes with reasonable particularity each item and category; and
(2) provides a reasonable amount of time, but not less than 30 days, to comply with the request.
(b) The person from whom records are sought must produce or allow the inspection of documents or other tangible things within the person's possession, custody or control within the time provided in the request, or submit in writing, as appropriate:
(1) objections to those records that are unreasonable, improper, or unnecessary to investigate the complaint; or
(2) that, after a diligent search, no items have been identified that are responsive to the request.
(c) Commission staff shall provide to the commission any response it receives to its request for production or inspection when applying for a subpoena under §571.137(a-1) of the Government Code.
(d) If the commission staff applies to the commission for the issuance of a subpoena pursuant to section 571.137(a-1) of the Government Code, the 120-day deadline for the commission to propose an agreement to the respondent or dismiss the complaint (provided in section 571.1242(g) of the Government Code) is tolled beginning on the date the staff applies to the commission for the subpoena and resets on either:
(1) the date the commission rejects the staff's application for a subpoena;
(2) the date the person to whom the subpoena is directed complies with the subpoena; or
(3) the date the commissionreceives a final ruling on a person's failure or refusal to comply with a subpoena that is reportedto a district court pursuant to section 571.137(c) of the Government Code.
§12.24.Proposed Settlement Before Preliminary Review Hearing.
If commission staff proposes to a respondent an agreement to settle a complaint that would be effective upon approval by the commission and the respondent, the 120-day deadline for the commission to propose an agreement to the respondent or dismiss the complaint (provided in section 571.1242(g) of the Government Code) is met. If a respondent approves a proposed agreement, commission staff must submit the proposed agreement to the commission to seek final approval at the next scheduled commission meeting. If a respondent rejects a proposed agreement, the matter shall be set for a preliminary review hearing at the next commission meeting for which notice has not yet been posted. If a respondent rejects a proposed agreement within 45 days before the date of a commission meeting, the matter shall be set for a preliminary review hearing at the next commission meeting thereafter.
§12.25.Subpoenas Issued by Commission.
(a) A subpoena issued under §571.137 of the Government Code shall specify the date, time, place, and manner for execution of the subpoena.
(b) A subpoena issued under section 571.137 of the Government Code that requires a person to provide testimony shall be served on that person at least 10 business days before the date the subpoena is to be executed.
(c) A subpoena sought by commission staff under section 571.137(a) of the Government Code must be requested in writing and may be approved and issued by the unanimous agreement of the chair and vice chair. If either the chair or vice chair does not approve the request, then staff may seek approval through a vote of the commission, in which case the subpoena will be issued upon the affirmative vote of five commissioners.
§12.26.Subpoenas Issued by Counsel for the Respondent.
(a) This section applies only to subpoenas issued by a respondent's counsel under section 571.125(f) (concerning the issuance of a subpoena for a witness in a preliminary review hearing) or 571.130(f) (concerning the issuance of a subpoena for a witness in a formal hearing) of the Government Code.
(b) A subpoena must be issued in the name of "The State of Texas" and must:
(1) state the sworn complaint numbers for the sworn complaints at issue in the hearing at which the witness is summoned to appear;
(2) state that the subpoena pertains to a sworn complaint proceeding before the Texas Ethics Commission;
(3) state the date on which the subpoena is issued;
(4) identify the person to whom the subpoena is directed;
(5) state the time and place of the preliminary review hearing or formal hearing at which the subpoena directs the person to appear;
(6) identify the respondent at whose instance the subpoena is issued and the respondent's attorney of record;
(7) specify with reasonable particularity any documents with which the person to whom the subpoena is directed shall appear;
(8) state the text of §12.31(i) of this chapter (relating to Purpose and Effect of Motions); and
(9) be signed by the attorney issuing the subpoena.
(c) A subpoena must command the person to whom it is directed to appear and give testimony at:
(1) a preliminary review hearing; or
(2) a formal hearing.
(d) A subpoena may only direct a person to appear, with or without documents, and give testimony at a preliminary review hearing or formal hearing before the commission.
(e) A subpoena may be issued only by the counsel of record for a respondent in a sworn complaint proceeding before the commission against that respondent.
(f) Service.
(1) Manner of service. A subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the sworn complaint proceeding, the subpoena may be served on the witness's attorney of record.
(2) Deadline for service. A subpoena must be served upon the person required to appear at least 21 days before the preliminary review hearing or formal hearing at which the person is required to appear. The subpoena and proof of service must be filed with the commission within three days of its service on the person required to appear.
(3) Proof of service. Proof of service must be made by filing either:
(A) the witness's signed written memorandum attached to the subpoena showing that the witness accepted the subpoena; or
(B) a statement by the person who made the service stating the date, time, and manner of service, and the name of the person served.
(g) Response.
(1) Except as provided in this subsection, a person served with a subpoena must comply with the command stated therein unless discharged by the commission or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of hearing from day to day until discharged by the commission or the party summoning the witness.
(2) If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization, and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization.
(3) A person commanded to appear with documents must produce the documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand.
(4) A person commanded to appear at a hearing must file any motion to quash the subpoena or objection to a requirement to appear with certain documents with the commission no later than the 14th day before the hearing at which the person is directed to appear. Commission staff may move to quash a subpoena or object to appearance with certain documents in the same manner as the person commanded to appear by the subpoena. The filer of a motion to quash or objection to a requirement to appear with certain documents must serve the motion or objection on the proponent of the subpoena in person, by mail, by commercial delivery service, by fax, by email, or by other such manner as the presiding officer of the commission may direct, no later than the deadline for filing the motion to quash or objection to appearance with documents with the commission. After affording commission staff and the person commanded to appear an opportunity to move to quash the subpoena or object to appearance with certain documents, and affording the proponent of the subpoena an opportunity to respond to the motion to quash or objection to appearance with documents, the commission's presiding officer shall rule on a motion to quash or objection to appearance with documents.
(5) A person commanded to attend and give testimony, or to produce documents or things, at a preliminary review hearing or formal hearing may object to giving testimony or producing documents at the time and place specified for the hearing, rather than under paragraph (4) of this subsection.
(6) A party's appearance with a document in response to a subpoena directing the party to appear with the document authenticates the document for use against that party in any proceeding before the commission unless the party appearing with the document objects to the authenticity of the document, or any part of it, at the time of the party's appearance, stating the specific basis for objection. An objection must have a good faith factual and legal basis. An objection made to the authenticity of only part of a document does not affect the authenticity of the remainder. If objection is made, the party attempting to use the document should be given a reasonable opportunity to establish its authenticity. The requirement that the commission provide a reasonable opportunity to establish the document's authenticity may be satisfied by the opportunity to present a witness to authenticate the document at a subsequent hearing before the commission.
(h) A counsel for a respondent issuing a subpoena must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on a motion to quash or objection to appearance with documents, the presiding officer must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The presiding officer may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403324
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
DIVISION 1. GENERAL RULES
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the GovernmentCode.
§12.31.Purpose and Effect of Motions.
To make a request, including to obtain a ruling, order, or any other procedural relief, a party shall file a written motion. The motion shall describe specifically the action requested and the basis for the requested action. Unless otherwise specified in this chapter, a motion is not granted until it has been ruled on by the executive director, the presiding officer, or by vote of the commission, as applicable, even if the motion is uncontested or agreed.
§12.32.Required Form of Motions.
Written requests for commission action shall be typewritten or printed legibly on 8-1/2 x 11-inch paper and timely filed with the commission. Photocopies are acceptable if copies are clear and legible. All filings shall contain or be accompanied by the following:
(1) the name of the party seeking action;
(2) the sworn complaint number;
(3) the parties to the case and their status as commission staff or respondent;
(4) a concise statement of the type of relief, action, or order desired and identification of the specific reasons for and facts to support the action requested;
(5) the signature of the submitting party or the party's authorized representative;
(6) a proposed order sought by the moving party; and
(7) a reference in the motion's title to a request for a hearing on the motion if the moving party seeks a hearing.
§12.33.Certificate of Conference.
Except as provided in this chapter or unless otherwise ordered by the presiding officer, all motions shall include a certificate of conference that complies substantially with one of the following examples:
(1) Example one: "Certificate of Conference: I certify that I conferred with {name of other party or other party's authorized representative} on {date} about this motion. {Succinct statement of other party's position on the action sought and/or a statement that the parties negotiated in good faith but were unable to resolve their dispute before submitting it to the commission for resolution.} Signature."; or;
(2) Example two: "Certificate of Conference: I certify that I made reasonable but unsuccessful attempts to confer with {name of other party or other party's authorized representative} on {date or dates} about this motion. {Succinctly describe these attempts.} Signature."
§12.34.Motion Deadlines.
(a) The following deadlines apply to motions in which a hearing is either sought by a party or scheduled by the presiding officer:
(1) motions must be filed with the commission no later than 30 days before the date of the hearing;
(2) responses to motions must be filed with the commission no later than 14 days before the date of the hearing; and
(3) replies to responses must be filed with the commission no later than 7 days before the date of the hearing.
(b) A scheduling order containing the deadlines under this section shall be included with the notice required by section 571.126 of the Government Code. The presiding officer may amend a scheduling order upon the request of a party for good cause shown. A decision by the presiding officer to amend a scheduling order or to deny a motion, response, or evidence shall be issued to the parties to a hearing within 5 business days after the decision is made.
(c) Except as otherwise provided in this chapter or as ordered or allowed by the commission, responses to motions shall be in writing and filed by the applicable deadline. However, if the presiding officer finds good cause has been shown, responses to written motions may be presented orally at hearing.
(d) The presiding officer may deny a party's motions, responses, or replies or deny a party's evidence from being admitted into the record of the hearing if the party fails to timely file.
§12.35.Method of Filing.
(a) Motions, responses, and other documents in a sworn complaint proceeding must be filed with the commission by emailing it to sworncomplaints@ethics.state.tx.us and including the following information in the subject line:
(1) the sworn complaint number; and
(2) the title of the document.
(b) The time and date of filing is the electronic time stamp affixed by the commissions email system. Documents received when the commission is closed shall be deemed filed the next business day.
§12.36.Service of Documents.
(a) On the same date a document is filed with the commission, a copy shall also be sent to each party or the party's authorized representative by hand-delivery; by regular, certified, or registered mail; or by email, upon agreement of the parties.
(b) A person filing a document shall include a certificate of service that certifies compliance with this section.
(1) A certificate of service shall be sufficient if it substantially complies with the following example: "Certificate of Service: I certify that on {date}, a true and correct copy of this {name of document} has been sent to {name of opposing party or authorized representative for the opposing party} by {specify method of delivery, e.g., email, regular mail, fax, certified mail.} {Signature}"
(2) If a filing does not certify service, the commission may:
(A) return the filing;
(B) send a notice of noncompliance to all parties, stating the filing will not be considered until all parties have been served; or
(C) send a copy of the filing to all parties.
(c) The following rebuttable presumptions shall apply regarding a party's receipt of documents served by another party:
(1) If a document was hand-delivered to a party, the commission shall presume that the document was received on the date of filing at the commission.
(2) If a document was served by courier-receipted overnight delivery, the commission shall presume that the document was received no later than the next business day after filing at the commission.
(3) If a document was served by regular, certified, or registered mail, or non-overnight courier-receipted delivery, the commission shall presume that it was received no later than three days after mailing.
(4) If a document was served by fax or email before 5:00 p.m. on a business day, the commission shall presume that the document was received on that day; otherwise, the commission shall presume that the document was received on the next business day.
(d) The sender has the burden of proving date and time of service.
§12.37.Non-conforming Documents.
When a filed document fails to conform to the requirements of this subchapter, the executive director may either:
(1) reject the filing, identify the errors to be corrected and state a deadline for correction; or
(2) accept the filing.
§12.38.Amended and Supplemental Filings.
A party may amend or supplement its pleadings as follows:
(1) If a notice of a hearing or other documents provided to the complainant or respondent under section 571.126(b)(2) of the Government Code contain a material defect, the commission may correct the notice or other document and deliver it to the complainant and respondent as soon as practicable and in the same manner as the original notice. If the respondent does not receive the correction at least 10 days before the date of the hearing, the presiding officer may by order reschedule the hearing. The executive director shall notify the parties and the complainant of the date, time, and place of the hearing as soon as practicable.
(2) As to all other matters, an amendment or supplementation that includes information material to the substance of a hearing, requests for relief, changes to the scope of a hearing, or other matters that unfairly surprise other parties may not be filed later than seven days before the date of the hearing, except by agreement of all parties or by permission of the presiding officer.
§12.39.Application of this Subchapter.
If there is a conflict between this section and a requirement found in another section relating to a specific type of motion, the more specific provision applies.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403325
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.41.Motion to Extend Time.
(a) The executive director may extend a deadline pursuant to §571.136 of the Government Code.
(b) A request for more time to file a document or respond to discovery shall include:
(1) a statement of the number of extension requests previously sought in the case by the movant;
(2) the specific reason for the request; and
(3) a proposed date for the deadline the movant seeks to extend.
(c) Motions to extend time shall be filed no later than five days before the date of the deadline at issue or shall state good cause for presenting the motion after that time. If the executive director finds good cause has been demonstrated, the executive director may consider a motion filed after that time.
(d) Unless otherwise ordered by the executive director, responses to motions for extension of a deadline are due three days after receipt of the motion.
(e) A motion for continuance or extension of time is not granted until it has been ruled on by the executive director, even if the motion is uncontested or agreed.
§12.42.Motion for Continuance.
(a) The presiding officer may postpone or delay a hearing.
(b) A request to postpone or delay a hearing shall include:
(1) a statement of the number of motions for continuance previously filed in the case by the movant;
(2) the specific reason for the request; and
(3) whether the movant is available if the hearing or prehearing conference is continued to the next tentatively scheduled commission meeting.
(c) Motions for continuance shall be filed no later than five days before the date of the proceeding or shall state good cause for presenting the motion after that time. If the presiding officer finds good cause has been demonstrated, the presiding officer may consider a motion filed after that time.
(d) Responses to motions for continuance shall be in writing, except a response to a motion for continuance made on the date of the proceeding may be presented orally at the proceeding. Unless otherwise ordered or allowed by the presiding officer, responses to motions for continuance shall be made by the earlier of:
(1) three days after receipt of the motion; or
(2) the date and time of the proceeding.
(e) A motion for continuance is not granted until it has been ruled on by the presiding officer, even if the motion is uncontested or agreed.
§12.43.Motion to Dismiss.
(a) A party may move to dismiss a complaint in whole or in part on the grounds that an alleged violation has no basis in law or fact. An alleged violation has no basis in law if the allegations, if taken as true, together with inferences reasonably drawn from them do not constitute a violation of a rule adopted by or a law administered and enforced by the commission. An alleged violation has not basis in fact if no reasonable person could believe the facts alleged.
(b) A motion to dismiss must identify each alleged violation to which it is addressed, and must state specifically the reasons the alleged violation has no basis in law, no basis in fact, or both.
(c) The commission may, but is not required to, conduct an oral hearing on the motion to dismiss. The commission may not consider evidence in ruling on the motion and must decide the motion based solely on the facts alleged in the complaint, together with any complaint exhibits permitted by commission rule or statute.
§12.44.Motion for Summary Disposition.
(a) Summary disposition shall be granted on all or part of a complaint's allegations if the allegations, the motion for summary disposition, and the summary disposition evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision in its favor as a matter of law on all or some of the issues expressly set out in the motion. Summary disposition is not permitted based on the ground that there is no evidence of one or more essential elements of a claim or defense on which the opposing party would have the burden of proof at the formal hearing.
(b) Unless otherwise ordered by the presiding officer:
(1) A party must file a motion for summary disposition at least 45 days before a scheduled hearing on the merits.
(2) The response and opposing summary disposition evidence shall be filed no later than 15 days after the filing of the motion.
(c) A motion for summary disposition shall include the contents listed below. A motion may be denied for failure to comply with these requirements.
(1) The motion shall state the specific issues upon which summary disposition is sought and the specific grounds justifying summary disposition.
(2) The motion shall also separately state all material facts upon which the motion is based. Each material fact stated shall be followed by a clear and specific reference to the supporting summary disposition evidence.
(3) The first page of the motion shall contain the following statement in at least 12-point, bold-face type: "Notice to parties: This motion requests the commission to decide some or all of the issues in this case without holding an evidentiary hearing on the merits. You have 15 days after the filing of the motion to file a response. If you do not file a response, this case may be decided against you without an evidentiary hearing on the merits."
(d) Responses to motions.
(1) A party may file a response and summary disposition evidence to oppose a motion for summary disposition.
(2) The response shall include all arguments against the motion for summary disposition, any objections to the form of the motion, and any objections to the summary disposition evidence offered in support of the motion.
(e) Summary disposition evidence.
(1) Summary disposition evidence may include deposition transcripts; interrogatory answers and other discovery responses; pleadings; admissions; affidavits; materials obtained by discovery; matters officially noticed; stipulations; authenticated or certified public, business, or medical records; and other admissible evidence. No oral testimony shall be received at a hearing on a motion for summary disposition.
(2) Summary disposition may be based on uncontroverted written testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the presiding officer must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.
(3) All summary disposition evidence offered in support of or in opposition to a motion for summary disposition shall be filed with the motion or response. Copies of relevant portions of materials obtained by discovery that are relied upon to support or oppose a motion for summary disposition shall be included in the summary disposition evidence.
(f) Proceedings on motions.
(1) The presiding officer may order a hearing on a motion for summary disposition and the commission may rule on the motion without a hearing.
(2) The affirmative vote of six commissioners is necessary to grant summary disposition finding a violation by a preponderance of the evidence.
(3) If summary disposition is granted on all contested issues in a case, the record shall close on the date ordered by the presiding officer or on the later of the filing of the last summary disposition arguments or evidence, the date the summary disposition response was due, or the date a hearing was held on the motion. The commission shall issue a final decision and written report, including a statement of reasons, findings of fact, and conclusions of law in support of the summary disposition rendered.
(4) If summary disposition is granted on some but not all of the contested issues in a case, the commission shall not take evidence or hear further argument upon the issues for which summary disposition has been granted. The commission shall issue an order:
(A) specifying the facts about which there is no genuine issue;
(B) specifying the issues for which summary disposition has been granted; and
(C) directing further proceedings as necessary. If an evidentiary hearing is held on the remaining issues, the facts and issues resolved by summary disposition shall be deemed established, and the hearing shall be conducted accordingly. After the evidentiary hearing is concluded, the commission shall include in the final decision a statement of reasons, findings of fact, and conclusions of law in support of the partial summary disposition rendered.
§12.45.Motion for Sanctions.
(a) The commission has the authority to impose appropriate sanctions against a party or its representative for:
(1) filing a motion or pleading that is deemed by the commission to be groundless and brought:
(A) in bad faith;
(B) for the purpose of harassment; or
(C) for any other improper purpose, such as to cause unnecessary delay or needless increase in the cost of the proceeding;
(2) abuse of the discovery process in seeking, making, or resisting discovery;
(3) failure to comply with a commission order; or
(4) violating §12.51 of this chapter (relating to Conduct and Decorum).
(b) By record vote of at least six commissioners, the commission may issue an order imposing sanctions when justified by party or representative behavior described in subsection (a) of this section and after notice and opportunity for hearing. Sanctions may include:
(1) disallowing or limiting further discovery by the offending party;
(2) charging all or part of the expenses of discovery against the offending party or its representatives;
(3) deeming designated facts be admitted for purposes of the proceeding;
(4) refusing to allow the offending party to support or oppose a claim or defense or prohibiting the party from introducing designated matters into the record;
(5) disallowing in whole or in part requests for relief by the offending party and excluding evidence in support of those requests; and
(6) striking motions or testimony in whole or in part.
(c) In deciding if a complaint is frivolous, the commission will be guided by the Texas Rules of Civil Procedure, Rule 13, and interpretations of that rule, and may also consider:
(1) the timing of the complaint with respect to when the facts supporting the alleged violation became known or should have become known to the complainant, and with respect to the date of any pending election in which the respondent is a candidate or is involved with a candidacy, if any;
(2) the nature and type of any publicity surrounding the filing of the complaint, and the degree of participation by the complainant in publicizing the fact that a complaint was filed with the commission;
(3) the existence and nature of any relationship between the respondent and the complainant before the complaint was filed;
(4) if respondent is a candidate for election to office, the existence and nature of any relationship between the complainant and any candidate or group opposing the respondent;
(5) any evidence that the complainant knew or reasonably should have known that the allegations in the complaint were groundless; and
(6) any evidence of the complainant's motives in filing the complaint.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403326
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
DIVISION 1. GENERAL RULES
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.51.Conduct and Decorum.
(a) Parties, representatives, and other participants at a hearing shall conduct themselves with dignity, show courtesy and respect for one another and for the commission, and follow any additional guidelines of decorum prescribed by the presiding officer, including adherence to the amount of time allotted for the hearing. Attorneys shall adhere to the standards of conduct in the Texas Lawyer's Creed promulgated by the Supreme Court of Texas and the Court of Criminal Appeals and the Texas Disciplinary Rules of Professional Conduct promulgated by the Supreme Court of Texas.
(b) Attorneys should advise their clients and witnesses of the applicable rules of conduct and decorum.
(c) All objections, arguments, and other comments by parties shall be directed to the commission and not to an opposing party.
(d) While a party is addressing the commission or questioning a witness, any other party shall not interrupt for any purpose except to make a valid objection.
(e) Parties shall not approach the dais without leave of the presiding officer and must not lean on the dais.
(f) Parties shall remain seated at the counsel table at all times except:
(1) when addressing the commission; and
(2) whenever it may be proper to handle documents, exhibits, or other evidence.
(g) Parties must question witnesses and deliver arguments to the commission while seated at the counsel table or standing at the lectern. If a party seeks to question or argue from another location, leave of the presiding officer must be requested and granted.
(h) Parties must request leave of the presiding officer to conduct a demonstration.
(i) The presiding officer may take appropriate action to maintain and enforce proper conduct and decorum, including:
(1) issuing a warning;
(2) sanctioning a party pursuant to §12.33 of this chapter (relating to Certificate of Conference);
(3) excluding persons from the proceeding;
(4) recessing the proceeding; and
(5) clearing the hearing room of persons causing a disruption.
§12.52.Private Deliberations.
As provided by section 571.139 of the Government Code, the commission may deliberate in private regarding the resolution of a sworn complaint or motion, including a dismissal of a complaint, a determination of whether a violation within the jurisdiction of the commission has occurred, and an appropriate penalty upon a finding of a violation. As provided by section 2001.061 of the Government Code, the presiding officer may permit the executive director, general counsel, or other employee of the commission who has not participated in a hearing in the complaint for the purpose of using the special skills or knowledge of the agency and its staff in evaluating the evidence.
§12.53.Record of Rulings.
Rulings not made orally at a recorded hearing shall be in writing and issued to all parties of record.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403327
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the GovernmentCode.
§12.61.Selection and Delegation of Presiding Officer.
(a) Except as otherwise provided in subsection (b), the commission's chair shall serve as the presiding officer for all hearings.
(b) The chair may appoint another commissioner to preside over a hearing held by the commission.
§12.62.Set Hearings.
The presiding officer may order that one or more hearings be held to address any matters pending in a sworn complaint proceeding, including motions to dismiss, motions for discovery or subpoenas, motions for sanctions, or any other matters related to the proceeding. The commission shall provide such an order to the parties and the complainant within five business days after the decision is made. The order shall include the date, time, and place of the hearing and a list of the matters to be addressed at the hearing.
§12.63.Consolidate or Sever Matters for Hearing.
(a) The presiding officer may order that cases be consolidated or joined for hearing if there are common issues of law or fact and consolidation or joint hearing will promote the fair and efficient handling of the matters.
(b) The presiding officer may order severance of issues if separate hearings on the issues will promote the fair and efficient handling of the matters.
§12.64.Conduct Hearings.
The presiding officer shall have the authority and duty to conduct a full, fair, and efficient hearing, including the power to:
(1) administer oaths;
(2) take testimony, including the power to question witnesses and to request the presence of a witness from a state agency;
(3) require the prefiling of exhibits and testimony;
(4) exclude irrelevant, immaterial, or unduly repetitious testimony;
(5) reasonably limit the time for presentations of evidence or argument;
(6) reopen the record when justice requires, if the commission has not issued a final order; and
(7) take other steps conducive to a fair and efficient formal hearing.
§12.65.Rule on Evidentiary Matters.
The presiding officer shall have the power to rule on admissibility and other questions of evidence.
§12.66.Sign Orders and Subpoenas.
The presiding officer may sign previously approved subpoenas and orders.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403328
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.71.Notice of Preliminary Review Hearing.
(a) Commission staff shall provide notice of a preliminary review hearing to a respondent and complainant at least 30 days before the date of the hearing and must include:
(1) the date, time, place, and nature of the hearing;
(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) a reference to the particular sections of the statutes and rules involved; and
(4) a short and plain statement of the factual matters asserted.
(b) Commission staff shall provide to a respondent at least 10 days before the date of the hearing:
(1) a list of proposed witnesses to be called at the hearing and a brief statement as to the nature of the testimony expected to be given by each witness to be called at the hearing; and
(2) copies of all documents expected to be used or introduced as exhibits at the hearing.
(c) The respondent shall provide to commission staff the contents described by subsections (b)(1) and (b)(2) of this section at least 5 days before the date of the hearing. If a respondent or commission staff fail to comply with this section, the commission may reschedule the hearing or proceed with the hearing and exclude at the hearing evidence, documents, and testimony provided by the respondent or commission staff, as applicable, but such failure may be excused upon a showing of good cause.
§12.72.Preliminary Review Hearing.
(a) Commission staff and the respondent may present any relevant evidence at a preliminary review hearing, including examination and cross-examination of witnesses.
(b) Commission staff and the respondent may present an opening and closing statement at a preliminary review hearing.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403329
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.81.Order of Formal Hearing.
As soon as practicable after the commission orders a formal hearing, the executive director shall provide to the parties to the complaint, and to the complainant, a copy of the commission's decision to order the hearing. The decision shall include the date, time, and place of the hearing and be signed by the presiding officer.
§12.82.Notice of Formal Hearing.
(a) Commission staff shall provide notice of a formal hearing to a respondent and complainant at least 60 days before the date of the hearing and must include, in addition to the contents required by section 571.126(b) of the Government Code:
(1) the date, time, place, and nature of the hearing;
(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) a reference to the particular sections of the statutes and rules involved; and
(4) a short and plain statement of the factual matters asserted.
(b) Commission staff shall file and provide to a respondent and complainant at least 30 days before the date of the hearing:
(1) a list of proposed witnesses to be called at the hearing and a brief statement as to the nature of the testimony expected to be given by each witness to be called at the hearing; and
(2) copies of all documents expected to be used or introduced as exhibits at the hearing.
(c) The respondent shall file and provide to commission staff at least 14 days before the date of the hearing:
(1) a list of proposed witnesses to be called at the hearing and a brief statement as to the nature of the testimony expected to be given by each witness to be called at the hearing; and
(2) copies of all documents expected to be used or introduced as exhibits at the hearing.
(d) If a respondent or commission staff fail to comply with this section, the commission may reschedule the hearing or proceed with the hearing and exclude at the hearing evidence, documents, and testimony provided by the respondent or commission staff, as applicable, but such failure may be excused upon a showing of good cause.
§12.83.Formal Hearing: Venue.
When the commission orders a formal hearing the commission shall decide whether the formal hearing will be held before the commission or before the State Office of Administrative Hearings.
§12.84.Presentation of Evidence.
(a) After the resolution of all prehearing matters, each party shall make its presentation during the formal hearing. Commission staff shall make the first opening statement. The respondent or respondent's authorized representative shall then make an opening statement, should the respondent wish to do so at that time. The respondent may reserve the opening statement until the presentation of the respondent's case.
(b) Following opening statements, commission staff may present evidence in its case. At the conclusion of the presentation of the evidence, commission staff may rest. The respondent or the respondent's authorized representative may then make an opening statement, or, if an opening statement has already been made, present evidence in its defense of the allegations raised in the notice of formal hearing. At the conclusion of the presentation of evidence by the respondent, the respondent may rest.
(c) After both parties have rested their case, commission staff shall make a closing argument. The respondent may then make a closing argument. Commission staff may then make a reply.
(d) Unless otherwise ordered by the presiding officer, after closing arguments, evidence will be closed and the case will be turned over to the members of the commission for deliberation and decision.
§12.85.Rules of Evidence.
(a) The Texas Rules of Evidence as applied in a nonjury civil case in district court govern a formal hearing only to the extent consistent with Chapter 571 of the Government Code.
(b) Evidence may be admitted if it meets the standards set out in section 2001.081 of the Government Code.
§12.86.Numbering of Exhibits.
(a) Each exhibit to be offered shall first be numbered by the offering party.
(b) Copies of the original exhibit shall be furnished by the party offering the exhibit to the commission and to each party present at the hearing unless otherwise ordered by the presiding officer.
(c) An exhibit excluded from evidence will be considered withdrawn by the offering party and will be returned to the party.
(d) Pre-numbered exhibits may be filed with the commission prior to the formal hearing. Pre-numbered exhibits that are not offered and admitted at the hearing will be deemed withdrawn.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403330
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The new rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.91.Agreed Resolutions.
(a) Upon the affirmative vote of six commissioners, the commission may enter into an agreed resolution with a respondent to settle a complaint filed against the respondent, including an assurance of voluntary compliance, a notice of reporting error, or an agreed order.
(b) An assurance of voluntary compliance:
(1) resolves a sworn complaint:
(A) with no determination that a violation within the jurisdiction of the commission has occurred, if entered into before a preliminary review hearing is completed; or
(B) with a determination that all violations within the jurisdiction of the commission, when viewed as a whole in consideration of any mitigating action taken by the respondent, are technical or de minimis; and
(2) may include a civil penalty.
(c) A notice of reporting error resolves a complaint with a determination that all violations within the jurisdiction of the commission are reporting errors that do not materially defeat the purpose of disclosure and may include a civil penalty in the form of an assessment fee.
(d) An agreed order resolves a sworn complaint with a determination that one or more violations within the jurisdiction of the commission occurred and may include a civil penalty.
§12.92.Resolution of Technical or De Minimis Allegations.
(a) Technical, clerical, or de minimis violations for purposes of §§571.0631 and 571.140 of the Government Code means any violation of law under the TEC's jurisdiction that neither materially affects disclosure nor undermines public trust in government.
(b) Examples of technical, clerical, or de minimis violations include:
(1) Typographical or incomplete information on a campaign finance report that is not misleading and does not materially affect disclosure;
(2) Failure to include a disclosure statement or a highway right-of-way notice on political advertising;
(3) Failure of a non-incumbent to use the word "for" in a campaign communication that is not otherwise misleading;
(4) Failure to file a timely campaign finance report or campaign treasurer appointment if the alleged violations do not materially affect disclosure;
(5) Failure to timely respond to a sworn complaint if the respondent shows good cause for the late response.
(c) During the review of a sworn complaint under Chapter 571, Subchapter E of the Government Code, if the executive director determines that all of the alleged violations in the sworn complaint are technical or de minimis, the executive director may enter into an assurance of voluntary compliance with the respondent. Before entering into an assurance of voluntary compliance, the executive director may require a respondent to correct the violations.
§12.93.Default Proceedings.
(a) If a respondent fails to respond to a complaint by the deadline set by Section 571.1242 or fails to appear for a formal hearing, the commission may, upon notice and hearing, proceed on a default basis.
(b) A default proceeding under this section requires adequate proof of the following:
(1) the notice of hearing to the respondent stated that the allegations listed in the notice could be deemed admitted and that the relief sought in the notice of hearing might be granted by default against the party that fails to appear at the hearing;
(2) the notice of hearing satisfies the requirements of sections 2001.051 and 2001.052 of the Government Code; and
(3) the notice of hearing was:
(A) received by the defaulting party; or
(B) sent by regular mail or by certified mail, restricted delivery, return receipt requested, to the party's last known address as shown by the commission's records.
(c) In the absence of adequate proof to support a default, the presiding officer shall continue the hearing and direct commission staff to provide adequate notice of hearing. If adequate notice is unable to be provided, the commission may dismiss the complaint.
(d) Upon receiving the required showing of proof to support a default, the commission may by vote deem admitted the allegations in the notice of hearing and issue a default decision.
§12.94.Final Orders after Formal Hearings.
(a) The commission should issue a final order within 60 days after the conclusion of a formal hearing.
(b) The executive director shall dismiss a complaint if the commission fails to adopt a motion under section 571.132 of the Government Code. The dismissal shall state the complaint was dismissed because there were insufficient commission votes to find that there was or was not a violation of law.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403331
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The Texas Ethics Commission (the TEC) proposes the repeal of all existing rules in Texas Ethics Commission Chapter 12.
Specifically, the Commission proposes the repeal of all rules in Subchapter A of Chapter 12 (relating to General Provision and Procedures), including §12.5, regarding Deadline for Filing a Complaint, §12.6 regarding File Date for Purposes of Commission Response Deadline, §12.7 regarding Confidentiality, §12.9 regarding Compliance with Open Meetings Law and Open Records Law, §12.11 regarding Delegation to Executive Director, §12.13 regarding Representation by Counsel, §12.15 regarding Appearance of Complainant at Hearing, §12.19 regarding Agreements to be in Writing, §12.21 regarding Notice, §12.23 regarding Hearing in Respondent's Absence, §12.25 regarding Waiver of Hearing, §12.27 regarding Deadline Extension, §12.28 regarding Production of Documents During Preliminary Review, §12.29 regarding Subpoenas Issued by Commission, §12.30 regarding Subpoenas Issued by Counsel for the Respondent, §12.31 regarding Conduct and Decorum, §12.33 regarding Sanctioning Authority, §12.34 regarding Agreed Orders, §12.35 regarding Frivolous Complaint, and §12.36 regarding Assessment of Civil Penalty.
The TEC also proposes the repeal of all rules in Subchapter B of Chapter 12 (relating to Filing and Initial Processing of a Complaint), including §12.51 regarding Non-Complying Complaint, §12.52 regarding Response to Notice of Complaint, §12.53 regarding Commission Initiated Complaint, §12.59 regarding Description of Violation, §12.61 regarding Statement of Facts, and §12.67 regarding Copies and Documents Provided by the Commission.
The TEC also proposes the repeal of all rules in Subchapter C of Chapter 12 (relating to Investigation and Preliminary Review), including §12.81 regarding Technical, Clerical, or De Minimis Violations, and §12.83 regarding Preliminary Review.
The TEC also proposes the repeal of all rules in Subchapter D of Chapter 12 (relating to Preliminary Review Hearing), including §12.84 regarding Notice of Preliminary Review Hearing, §12.85 regarding Preliminary Review Hearing, §12.86 regarding Motions for Continuance, and §12.87 regarding Resolution of Preliminary Review Hearing.
The TEC also proposes the repeal of all rules in Division 1 of Subchapter E of Chapter 12 (relating to Formal Hearing: General Procedures), including §12.101 regarding Application and Construction, §12.102 regarding Order of Formal Hearing, §12.103 regarding Notice of Formal Hearing, §12.117 regarding Formal Hearing: Venue, and §12.119 regarding Resolution after a Formal Hearing.
The TEC also proposes the repeal of all rules in Division 2 of Subchapter E of Chapter 12 (relating to Formal Hearing: Scheduling, Filing, and Service), including §12.121 regarding Prehearing Conferences, §12.123 regarding Scheduling Orders, §12.125 regarding Filing of Documents, and §12.127 regarding Service of Documents.
The TEC also proposes the repeal of all rules in Division 3 of Subchapter E of Chapter 12 (relating to Formal Hearing: Powers and Duties of Commission and Presiding Officer), including §12.131 regarding Powers and Duties of the Presiding Officer, and §12.133 regarding Orders From the Commission.
The TEC also proposes the repeal of all rules in Division 5 of Subchapter E of Chapter 12 (relating to Formal Hearing: Pleadings and Motions), including §12.151 regarding Required Form of Pleadings, §12.153 regarding Motions, Generally, and §12.155 regarding Motions for Continuance and to Extend Time.
The TEC also proposes the repeal of all rules in Division 6 of Subchapter E of Chapter 12 (relating to Formal Hearing: Hearings and Prehearing Conferences), including §12.161 regarding Time Allotted to Parties, §12.163 regarding Presentation of Evidence, §12.165 regarding Rules of Evidence, and §12.167 regarding Numbering of Exhibits.
The TEC also proposes the repeal of all rules in Division 7 of Subchapter E of Chapter 12 (relating to Formal Hearing: Disposition of Formal Hearing), including §12.171 regarding Standard of Proof, §12.173 regarding Default Proceedings, §12.174 regarding Summary Disposition, and §12.175 regarding Resolution of Formal Hearing.
This proposal, along with the contemporaneous proposal of new Subchapters and Divisions in Chapter 12, amends the rules used in sworn complaint proceedings at the Ethics Commission.
State law requires state agencies to "review and consider for readoption each of its rules . . . not later than the fourth anniversary of the date on which the rule takes effect and every four years after that date." Tex. Gov't Code §2001.039. The law further requires agencies to "readopt, readopt with amendments, or repeal a rule as the result of reviewing the rule under this section." Id.
The TEC started its comprehensive review with the TEC's rules regarding sworn complaint procedures, which are codified in Chapter 12. The repeal of existing rules and adoption of new rules seek to shorten, simplify, and reorganize the rules to eliminate surplusage and improve clarity on sworn complaint procedures.
James Tinley, General Counsel, has determined that for the first five-year period the proposed repealed rules are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed repealed rules.
The General Counsel has also determined that for each year of the first five years the proposed repealed rules are in effect, the public benefit will be consistency and clarity in the TEC's rules regarding sworn complaint procedures. There will not be an effect on small businesses, microbusinesses or rural communities. There is no anticipated economic cost to persons who are required to comply with the proposed repealed rules.
The General Counsel has determined that during the first five years that the proposed repealed rules are in effect, they will not: create or eliminate a government program; require the creation of new employee positions or the elimination of existing employee positions; require an increase in future legislative appropriations to the agency; require an increase or decrease in fees paid to the agency; expand, limit, or repeal an existing regulation; create a new regulation; increase or decrease the number of individuals subject to the rules' applicability; or positively or adversely affect this state's economy.
The TEC invites comments on the proposed repealed rules from any member of the public. A written statement should be emailed to public_comment@ethics.state.tx.us, or mailed or delivered to J.R. Johnson, Executive Director, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070. A person who wants to offer spoken comments to the Commission concerning the proposed repealed rules may do so at any Commission meeting during the agenda item relating to the proposed repealed rules. Information concerning the date, time, and location of Commission meetings is available by telephoning (512) 463-5800 or on the Commission's website at www.ethics.state.tx.us.
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
SUBCHAPTER A. GENERAL PROVISIONS AND PROCEDURES
1 TAC §§12.5 - 12.7, 12.9, 12.11, 12.13, 12.15, 12.19, 12.21, 12.23, 12.25, 12.27 - 12.31, 12.33 - 12.36 §12.5.Deadline for Filing a Complaint.
§12.6.File Date for Purposes of Commission Response Deadline.
§12.7.Confidentiality.
§12.9.Compliance with Open Meetings Law and Open Records Law.
§12.11.Delegation to Executive Director.
§12.13.Representation by Counsel.
§12.15.Appearance of Complainant at Hearing.
§12.19.Agreements to be in Writing.
§12.21.Notice.
§12.23.Hearing in Respondent's Absence.
§12.25.Waiver of Hearing.
§12.27.Deadline Extension.
§12.28.Production of Documents During Preliminary Review.
§12.29.Subpoenas Issued by Commission.
§12.30.Subpoenas Issued by Counsel for the Respondent.
§12.31.Conduct and Decorum.
§12.33.Sanctioning Authority.
§12.34.Agreed Orders.
§12.35.Frivolous Complaint.
§12.36.Assessment of Civil Penalty.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403292
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
1 TAC §§12.51 - 12.53, 12.59, 12.61, 12.67
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.51.Non-Complying Complaint.
§12.52.Response to Notice of Complaint.
§12.53.Commission Initiated Complaint.
§12.59.Description of Violation.
§12.61.Statement of Facts.
§12.67.Copies and Documents Provided by the Commission.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403293
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.81.Technical, Clerical or De Minimis Violations.
§12.83.Preliminary Review.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403294
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.84.Notice of Preliminary Review Hearing.
§12.85.Preliminary Review Hearing.
§12.86.Motions for Continuance.
§12.87.Resolution of Preliminary Review Hearing.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403295
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
DIVISION 1. GENERAL PROCEDURES
1 TAC §§12.101 - 12.103, 12.117, 12.119
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.101.Application and Construction.
§12.102.Order of Formal Hearing.
§12.103.Notice of Formal Hearing.
§12.117.Formal Hearing: Venue.
§12.119.Resolution after a Formal Hearing.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403296
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
1 TAC §§12.121, 12.123, 12.125, 12.127
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.121.Prehearing Conferences.
§12.123.Scheduling Orders.
§12.125.Filing of Documents.
§12.127.Service of Documents.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403297
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.131.Powers and Duties of the Presiding Officer.
§12.133.Orders from the Commission.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403298
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
1 TAC §§12.151, 12.153, 12.155
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.151.Required Form of Pleadings.
§12.153.Motions, Generally.
§12.155.Motions for Continuance and to Extend Time.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403299
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
1 TAC §§12.161, 12.163, 12.165, 12.167
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.161.Time Allotted to Parties.
§12.163.Presentation of Evidence.
§12.165.Rules of Evidence.
§12.167.Numbering of Exhibits.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403300
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
1 TAC §§12.171, 12.173 - 12.175
The repealed rules are proposed under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code and Chapter 571 of the Government Code.
The proposed repealed rules affect Subchapter E of Chapter 571 of the Government Code.
§12.171.Standard of Proof.
§12.173.Default Proceedings.
§12.174.Summary Disposition.
§12.175.Resolution of Formal Hearing.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 23, 2024.
TRD-202403301
James Tinley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (512) 463-5800
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER L. LOCAL FUNDS MONITORING
1 TAC §§355.8701 - 355.8705, 355.8707
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §355.8701, concerning Purpose; §355.8702, concerning Definitions; §355.8703, concerning Applicability; §355.8704, concerning Reporting and Monitoring; §355.8705, concerning Post-Determination Review; and §355.8707, concerning Notification Requirements for the Creation of a Local Provider Participation Fund (LPPF).
BACKGROUND AND PURPOSE
The purpose of the proposal is to add and modify definitions and enhance clarity, consistency, and specificity of the rules. The amendments also reflect best practices learned after the completion of two Local Funding reporting periods and are based on an internal review of Local Funding's processes.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §355.8701 replaces "local governmental entities" with "governmental entities;" as noted in the proposed amendment to §355.8702, the term "governmental entities" includes state agencies and "local governmental entities" (LGEs). The proposed amendment also replaces "HHSC" with "HHS" to specify which agencies collect the information to comply with state and federal law and associated reporting requirements.
The proposed amendment to §355.8702 modifies the definition of a governmental entity to distinguish between state agency and other political subdivisions of the state. The proposed amendment also adds two new definitions: Texas Health and Human Services system (HHS) and Local Education Agency (LEA) to conform to the term used by other state agencies to refer to this political subdivision of the state.
The proposed amendment to §355.8703 removes the staggered implementation of the rules, as reporting on all local funding provided to HHSC by governmental entities through Intergovernmental Transfer (IGT) or Certified Public Expenditure (CPE) for use as the non-federal share of Medicaid payments has begun. The proposed amendment also clarifies what HHSC will do if the electronic annual survey is not open at the start of the reporting period to ensure that governmental entities can provide any requested information or documentation relating to annual reporting and monitoring.
The proposed amendment to §355.8704 clarifies the processes HHSC uses to collect information from governmental entities for use in the annual survey as required by the 2024-25 General Appropriations Act, House Bill 1, 88th Legislature, Regular Session, 2023 (Article II, Health and Human Services Commission, Rider 15 (b)). Additionally, the proposed amendment reiterates HHSC's broad authority to refuse IGT used as the non-federal share of Medicaid at its discretion. Finally, the proposed amendment reflects best practices learned after implementing reporting for all funding sources and the completion of two fiscal years' reporting periods. This includes additional specification regarding the types of information and documentation HHSC collects and how HHSC uses the information collected to determine compliance, assess risk, and conduct in-depth reviews.
The proposed amendment to §355.8705 conforms rule reference in this subchapter regarding post-determination reviews. The proposed amendment specifies governmental entity representatives that may request a post-determination review.
The proposed amendment to §355.8707 provides updated and additional detail regarding the steps that a local governmental entity must complete regarding the submission of the required documentation prior to transferring local funds generated by a Local Provider Participation Fund (LPPF) to HHSC via IGT.
FISCAL NOTE
Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years that the rules will be in effect:
(1) the proposed rules will not create or eliminate a government program;
(2) implementation of the proposed rules will not affect the number of HHSC employee positions;
(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;
(4) the proposed rules will not affect fees paid to HHSC;
(5) the proposed rules will not create a new regulation;
(6) the proposed rules will not expand, limit, or repeal existing regulations;
(7) the proposed rules will not change the number of individuals subject to the rules; and
(8) the proposed rules will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Trey Wood, Chief Financial Officer, has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities.
The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.
LOCAL EMPLOYMENT IMPACT
The proposed rules will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these rules because the rules do not impose a cost on regulated persons; are necessary to receive a source of federal funds or comply with federal law; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.
PUBLIC BENEFIT AND COSTS
Victoria Grady, Director of Provider Finance, has determined that for each year of the first five years the rules are in effect, the public benefit will be to ensure Texas meets oversight responsibilities related to the permissibility of local Medicaid funding sources. HHSC's oversight will reduce the potential likelihood of providers' recoupments from the Centers for Medicare & Medicaid Services (CMS), which helps ensure providers continue providing services to Medicaid beneficiaries.
Trey Wood, Chief Financial Officer, has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because the proposed rules clarify existing processes for entities to meet the existing requirements of data submission and reporting system training.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to the owner's property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Written comments on the proposal may be submitted to PFD Local Funding, 4601 Guadalupe Street, Mail Code H400, Austin, Texas 78751, or by email to PFD_LFM@hhs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 24R065" in the subject line.
STATUTORY AUTHORITY
The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas; Texas Human Resources Code §32.031(d), which authorizes the Executive Commissioner to pursue the use of local funds as part of the state share under the Medicaid program as provided by federal law and regulation; and Texas Health and Safety Code §300.0154 and §300A.0154, which require the Executive Commissioner of HHSC to adopt rules relating to LPPF reporting.
The amendments affect Texas Government Code §531.0055; Texas Human Resources Code §32.021 and Texas Government Code §531.021(a); Texas Human Resources Code §32.031(d); and Texas Health and Safety Code §300.0154 and §300A.0154.
§355.8701.Purpose.
(a) As part of the oversight required by federal and
state law, the Texas Health and Human Services Commission (HHSC) requires
all non-federal share funds that are provided by governmental
entities [local governmental entities, including funds
transferred or certified by governmental entities] as the non-federal
share of Medicaid supplemental and directed payments, to report the
source of such funds.
(b) HHSC will use the information reported under this
subchapter along with information already collected by HHS [HHSC] to comply with state and federal law and associated reporting
requirements. HHSC may publish the information on the HHSC website
at HHSC's discretion.
§355.8702.Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Centers for Medicare & Medicaid Services (CMS)--The federal agency within the United States Department of Health and Human Services responsible for overseeing and directing Medicare and Medicaid.
(2) Certified Public Expenditure (CPE)--An expenditure certified by a governmental entity to represent its contribution of public funds in providing services that are eligible for federal matching Medicaid funds.
(3) Federal Fiscal Year (FFY)--A 12-month period beginning October 1 and ending September 30.
(4) Governmental entity[Entity]--A governmental entity is defined as: [state agency or a political
subdivision of the state, or a hospital authority, hospital district,
health district, city, county, school district, or other unit of local
government as established by Texas statute.]
(A) a state agency; or
(B) a political subdivision of the state, including a hospital authority, hospital district, health district, city, county, local education agency (as defined in paragraph (10) of this section), or other unit of local government as established by Texas statute; may also be referred to as a Local Governmental Entity (LGE).
(5) Health care provider--The individual or entity that receives a Medicaid payment or payments for health care items or services provided or an entity related to such a health care provider.
(6) HHS--The Texas Health and Human Services system. For the purposes of this subchapter, unless specifically stated otherwise, the HHS system includes HHSC and the Texas Department of State Health Services.
(7) [(6)] HHSC--The Texas Health
and Human Services Commission.
(8) [(7)] Interested party--A
governmental entity that has non-federal share funds under review,
as contemplated by this chapter.
(9) [(8)] Intergovernmental Transfer
(IGT)--A transfer of public funds from a governmental entity to HHSC.
(10) Local Education Agency (LEA)--A Texas independent school district or public charter school.
(11) [(9)] Non-federal share--The
portion of Medicaid program expenditures that is not federal funds.
The non-federal share is equal to 100 percent minus the federal medical
assistance percentage (FMAP) for Texas for the state fiscal year corresponding
to the program year and for the population served.
(12) [(10)] Post-determination
review--The informal verification [re-examination]
of an action or determination by HHSC under this chapter requested
by an interested party.
§355.8703.Applicability.
(a) This subchapter applies to local funding provided
to HHSC by a governmental entity for use as the non-federal share
of Medicaid payments through intergovernmental transfer (IGT) or Certified
Public Expenditure (CPE). [the following categories of
local funds:]
[(1) beginning April 1, 2022: intergovernmental
transfer (IGT) of Local Provider Participation Funds (LPPFs) or other
provider taxes;]
[(2) beginning October 1, 2022: in addition to paragraph (1) of this subsection, IGT of funds to support Medicaid payment programs for hospital services (other than funds from LPPFs or other provider taxes);]
[(3) beginning April 1, 2023: in addition to paragraphs (1) and (2) of this subsection, IGT of funds to support Medicaid payment programs for non-hospital services, including nursing facility services, intermediate care facility services, and other acute or long-term care services (other than funds from LPPFs or other provider taxes); and]
[(4) beginning October 1, 2023: in addition to paragraphs (1) - (3) of this subsection, certified public expenditures (CPEs).]
(b) To the extent that an electronic annual survey,
detailed in §355.8704 of this subchapter (relating to Reporting
and Monitoring), is not [yet] open for reporting at the
applicable start date of the reporting period, governmental entities
[for a given funding source, governmental entities]
will be contacted by HHSC and given 30 days from the date of the notice
to provide any requested information or documentation in a format
prescribed by HHSC.
§355.8704.Reporting and Monitoring.
(a) A governmental entity that provides funds for use as the non-federal share in the Medicaid program must report information to the Texas Health and Human Services Commission (HHSC) in a form and format to be determined by HHSC.
(b) The information must be reported at least annually,
no later than October 31 [October 31st], or
upon request by HHSC.
(c) HHSC will [open the information reporting
system prior to the end of the federal fiscal year and will]
review reported information based on governmental entity funding sources, including:
(1) local provider participation funds (LPPFs) authorized by the Texas Health and Safety Code Chapter 288 et seq. or other provider tax structures;
(2) non-LPPF provider taxes;
(3) ad valorem tax revenue;
(4) patient revenue;
(5) donations; and
(6) [(5)] other local funding
sources.[; and]
[(6) donations.]
(d) HHSC will use the information from the report to
monitor each governmental entity's funding sources [governmental
entity fund source] and determine the likelihood that the funds
are permissible for use in the Medicaid program. The monitoring will
include the following:
(1) Survey. An electronic annual survey that will request the following:
(A) a list of all Medicaid programs and health
care providers (including name, type, and ownership status) [health
care providers] for which the governmental entity transferred
or certified funds as the non-federal share;
(B) the relationship between the governmental entity
and each [the] health care provider, including
a copy of any formal or informal agreements between the governmental
entity [entity] and the health care provider
[provider];
[(C) the type of health care provider
(i.e. ambulance, dentist, hospital, intermediate care facilities for
individuals with an intellectual disability, nursing facility, physician
practice group) and ownership status;]
(C) [(D)] the source of the funds
used as the non-federal share transferred by the governmental entity;
(D) [(E)] information on any
debt instruments (i.e., bonds, loans, etc.) that a governmental
entity utilizes and the relationship of the instrument to any transferred funds;
(E) [(F)] to the extent patient
revenue is used, a description of payor mix (i.e., Medicaid,
Medicare, commercial, uninsured, self-pay, etc.) during the
federal fiscal year (FFY) and any anticipated changes;
(F) [(G)] any transfer of funds
or provision of services from a health care provider or entity related
to a health care provider to the governmental entity, including in-cash
or in-kind donations, or any other transfer of value;
(G) [(H)] overview of funds received
from all sources available to the governmental entity during
the FFY [in its current fiscal year];
(H) [(I)] other information as
determined necessary and appropriate to determine compliance with
federal or state statutes and regulations, including attestations
of compliance from the local government; and
(I) [(J)] any publicly available
information, such as:
(i) [audio] recordings of discussions or
written minutes from public meetings to set assessment rates or gather
feedback from health care providers [providers]
or their representatives;
(ii) [written] correspondence describing
the governmental entity's funding transferred to HHSC
for use in [dedicated to] the Medicaid program;
(iii) [URL] links to websites that describe
the funds used [transferred or certified] as
the non-federal share or any agreement between the governmental entity
and a health care provider or entity related to a health care provider; and
(iv) copies of any public notices, local orders, announcements, or other related documentation.
(2) Risk Assessment.
(A) The risk assessment will include:
(i) a risk assessment score based on self-reported annual survey responses; and
(ii) any adjustments made at HHSC's discretion based on supplemental documentation and discussion with the impacted governmental entity and review of additional documentation requests as may be needed, in HHSC's sole discretion, to confirm, audit, or modify self-reported data and qualitative descriptions.
(B) The funds used as the non-federal share [Funding sources] will be categorized as likely permissible,
further review required, or likely impermissible based on a review
of a governmental entity's funding sources. HHSC may elect
to [will] contact entities whose funding sources
are categorized as further review required or likely impermissible
to obtain additional information. The entity must furnish the requested
information to HHSC within 10 [ten (10)] business
days of the date of the request.
(i) Likely permissible. Funding source appears to comply with federal and state statutes and regulations.
(ii) Further review required. Funding source compliance with federal and state statutes and regulations is unclear.
(iii) Likely impermissible. Funding source does not appear to comply with federal or state regulations.
(3) In-depth Review. HHSC will select a sample of survey
respondents for an in-depth review in which HHSC may examine supporting
documentation, either on-site or electronically, at HHSC's discretion.
HHSC will select a sample of survey respondents sufficient to result
in a 95 percent confidence level with a 5 percent margin of error.
HHSC will [initially] select entities based on an
initial risk assessment, [that are in the likely impermissible
and further review required categories,] and if additional entities
are necessary to complete the required [a] sample
size, they will be randomly selected [from the likely permissible
category]. HHSC will notify a governmental entity if an on-site
review will occur at least 10 [ten (10)] calendar
days prior to the visit.
(4) Determination. HHSC will notify the governmental
entity upon determination of the following: [Determination
of completeness of reporting and HHSC's assigned risk assessment for
each funding source.]
(A) reporting compliance;
(B) risk assessment score;
(C) funding source category pursuant to paragraph (2)(B) of this subsection.
(5) Post-Determination Review. Post-determination review
will be conducted as outlined in §355.8705 of this subchapter
(relating to Post-Determination Review) [this subchapter].
(6) Federal Reporting.
(e) If a governmental entity fails to submit the required
information or supplemental documentation as requested by HHSC by
the deadline specified in this section, HHSC may refuse [will not accept] further transfer of funds for any Medicaid
program from the governmental entity until the reporting requirement
is satisfied and may process recoupments for any payments resulting
from funds transferred determined to be non-compliant.
(f) Prior to the applicable deadline, a governmental
entity may request an extension of up to 10 [ten (10)]
business days for any deadline contained in this subchapter. HHSC
may grant or reject such request at its sole discretion.
[(g) HHSC will notify the governmental
entity upon determination of:]
[(1) reporting compliance;]
[(2) permissibility of funds; and]
[(3) a risk assessment category for each funding source.]
(g) [(h)] After review of any
additional information provided, HHSC may also seek input on the likely
permissibility of the funds from the Centers for Medicare & [and] Medicaid Services (CMS). In the event HHSC elects to request
input from CMS regarding the compliance of a specific funding source
as contemplated by this subchapter, HHSC will notify the governmental
entity prior to requesting such review. HHSC may, at its discretion,
accept or reject local funds from any governmental entity [the governmental entity for such funding source while awaiting CMS
input]; however, HHSC will reject funding and recoup
all Medicaid payments supported by a governmental entity's [generated from a] funding source that CMS deems impermissible
if CMS requires HHSC to do so [deemed impermissible by
CMS at any time].
(h) If a governmental entity is determined not to have met the reporting requirements, or to have falsified any data in its reporting, HHSC may refuse transfers from the governmental entity, and payments to health care providers resulting from prior transfers may be recouped.
§355.8705.Post-Determination Review.
(a) An interested party who disputes a determination
under §355.8704(d)(4) [§355.8704(g)]
of this subchapter [chapter] (relating to Reporting
and Monitoring) may request post-determination review under this section.
(b) The purpose of a post-determination review is to provide for the informal and efficient resolution of the matter(s) in dispute. A post-determination review is not a formal administrative hearing and is conducted according to the following procedures:
(1) The Texas Health and Human Services Commission
(HHSC) must receive a request for a post-determination review electronically
to PFD_LFM@hhs.texas.gov no later than 30 calendar days from the date
of a notification under §355.8704(d)(4) [§355.8704(g)
] of this subchapter [chapter]. If the
30th calendar day is a weekend day, national holiday, or state holiday,
then the first business day following the 30th calendar day is the
final day the receipt of the written request will be accepted. HHSC
will extend this deadline for an additional 15 days if it receives
a request for the extension prior to the initial 30-day deadline.
A request for a post-determination review or extension that is not
received by the stated deadline will not be accepted.
(2) An interested party must, with its request for a post-determination review, submit a concise statement of the specific determinations it disputes, its recommended resolution, and any supporting documentation the interested party deems relevant to the dispute. It is the responsibility of the interested party to render all pertinent information at the time it submits its request for a post-determination review. A request for a post-determination review that does not meet the requirements of this subparagraph will not be accepted.
(3) The written request for the post-determination
review or extension must be requested by an employee, board member,
or elected official of the Local Governmental Entity (LGE) [signed
by a legally authorized representative for the interested party].
A request for a post-determination review or extension that is not
requested by an employee, board member, or elected official of
the LGE [a legally authorized representative of the interested
party] will not be accepted.
(4) On receipt of a request for post-determination review that meets the requirements of this section, HHSC will:
(A) acknowledge receipt of the request to the requestor; and
(B) coordinate the review of the information submitted by the interested party and may request additional information from the interested party, which must be received no later than 14 calendar days from the date of the written request for additional information.
(i) If the 14th calendar day is a weekend day, national holiday, or state holiday, then the first business day following the 14th calendar day is the final day the receipt of the additional information will be accepted.
(ii) Information received after 14 calendar days may not be used in the post-determination review decision unless the interested party requests an extension and receives written approval from HHSC staff to submit the information after 14 calendar days. HHSC must receive a request for an extension to the 14-calendar-day due date prior to the 14th calendar day.
(iii) HHSC may make subsequent requests for additional information. If HHSC makes a subsequent request for additional information, the timeframes for submission and receipt of the information apply just as they applied to the initial request for additional information.
(5) Upon [review and] receipt and review of
all requested supplemental information, HHSC will provide a final
decision no later than 180 days after receipt of the request or receipt
of supplemental information, whichever is later. An interested party
may request an update on the status of the post-determination review
at any time.
§355.8707.Notification Requirements for the Creation of a Local Provider Participation Fund (LPPF).
(a) A local government, as defined in Texas Health and Safety Code Chapter 300, or a district, as defined in Texas Health and Safety Code Chapter 300A, that creates a new local provider participation fund (LPPF) as authorized by those chapters must send HHSC notice of the creation of a new LPPF according to the following procedures.
(1) HHSC must receive notice of a newly created LPPF electronically to PFD_LFM@hhs.texas.gov no later than 10 business days from the date of the local government or district's creation of the LPPF.
(2) The notice must contain the following.
(A) Contact information for at least two employees, board members, or elected officials of the local government or district authorized to implement an LPPF, as well as any individuals the local government or district authorizes to receive informational updates related to LPPF formation and reporting. Contact information shall include:
(i) full names;
(ii) titles and description of involvement with the LPPF (if not an employee, board member, or elected official of the local government or district);
(iii) email addresses; and
(iv) phone numbers.
(B) Audio recordings of discussions or written minutes from public meetings, such as commissioner's court meetings or hospital district board meetings, that document the approval of LPPF formation and any associated rate setting.
(C) Resolution approving rules and procedures for LPPF mandatory assessment payments.
(D) Resolution authorizing the formation of the LPPF, collection of a mandatory assessment payment, and use of funds from the mandatory assessment payments.
(E) Public notices from a hardcopy or digital source, such as a newspaper article, notifying providers in the jurisdiction of the intent to create an LPPF and set associated rates.
(F) Copies of written notice provided to the chief operating officer of each provider that will be required to pay a mandatory assessment.
(G) Invoices or other records of LPPF mandatory assessments and payments received from providers, if any, have been made at the time notice is provided to HHSC.
(H) Any agreements between the local government or district implementing the LPPF (including a local government that created the district under Texas Health and Safety Code §300A.0021) and a health care provider or entity related to a health care provider that is required to pay a mandatory assessment, if applicable.
(3) On receipt of a notice for the creation of an LPPF, HHSC:
(A) acknowledges receipt of the notice to the local government or district; and
(B) reviews the information submitted by the local government or district.
(i) HHSC may request additional information from the local government or district. The additional information must be received by HHSC no later than 10 business days from the date of the written request for additional information.
(ii) HHSC will extend this deadline for an additional 10 business days if it receives a request for the extension prior to the initial 10 business day due date. A request for an extension that is not received by the stated deadline will not be accepted.
(4) No local government or district may transfer local
funds generated by an LPPF to HHSC via intergovernmental transfer
(IGT) [IGT] until it has completed the following steps.
(A) Notify HHSC of the creation of the LPPF in accordance with this section and receive acknowledgment of receipt from HHSC.
(B) Provide HHSC documentation that the governmental
entity has completed the following: [with any additional
information requested by HHSC as provided in this section.]
(i) Established a distinct bank account for the LPPF that is not commingled with other funds of the governmental entity.
(ii) Established a unique TEXNET account for the LPPF through the Texas Comptroller of Public Accounts that allows transfers from only the distinct bank account identified in clause (i) of this subparagraph.
(iii) Emailed PFD_Payments@hhs.texas.gov to confirm that the bank account HHSC has on file for issuing LPPF account refunds matches the distinct bank account identified in clause (i) of this subparagraph.
(C) Provide HHSC with any additional information
requested by HHSC as provided in this section. [Establish
a unique TexNet Account through the Texas Comptroller.]
[(D) Establish a Texas Identifier
Number (TIN) through the Provider Finance Department by emailing RAD_Payments@hhs.texas.gov.]
(b) Any local government or district that creates an LPPF is subject to annual reporting requirements under 1 TAC Chapter 355, Subchapter L (relating to Local Funds Monitoring).
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on July 29, 2024.
TRD-202403423
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: September 8, 2024
For further information, please call: (737) 867-7877