Can a Texas Ethics Commission member reveal a sworn complaint that is being litigated?

Plain-English summary

The Chair of the Texas Ethics Commission asked the AG whether a Commission member may disclose information about sworn complaints when the person who was the subject of those complaints (the respondent) has sued the member over the member's conduct during the complaint process. The facts: the Commission held a preliminary review and a formal hearing on sworn complaints against a respondent, issued subpoenas the respondent did not obey, referred that noncompliance to court, and was then sued by the respondent (in both official and individual capacity) for allegedly violating the respondent's constitutional rights during the confidential process. The Commission later dismissed the complaints. Now third parties want information about the allegations, and the Chair asked whether a member could share information with people like the member's defense attorney, an insurer covering the litigation, business partners, the press, or anyone else the member thinks is necessary to defend the lawsuit.

The AG answered with the statute's plain rule. Chapter 571 of the Government Code governs the Commission, and section 571.140(a) makes a sworn complaint, along with documents and additional evidence relating to its processing, preliminary review, hearing, or resolution, confidential. That information may not be disclosed unless it is entered into the record of a formal hearing or a judicial proceeding. The statute spells out only those specific situations where the information loses its confidential character, which signals the Legislature did not intend to strip confidentiality outside those circumstances. Disclosing information made confidential by the section can bring criminal and civil penalties.

So the answer turned on a single fact the Chair had not specified: whether the complaint and related information had actually been entered into the record of the lawsuit. If they had, then under the plain language they are no longer confidential and may be disclosed without penalty. If they had not, they remain confidential and must not be disclosed, even though the complaint is the subject of litigation. The AG added that any constitutional question raised by these facts would depend on factual inquiries beyond the scope of an AG opinion, and cited a prior Ethics Commission opinion noting that the disclosure prohibition applies to the Commission and its staff (while the First Amendment may let a complainant say publicly that he or she filed a complaint).

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting Commission chair (as the opinion described it): The opinion answered that under section 571.140(a), a sworn complaint and related information stay confidential and may be disclosed only when entered into the record of a formal hearing or judicial proceeding, so whether the member could disclose depended on whether that information had been entered into the record of the lawsuit. It did not separately catalog each recipient (defense lawyer, insurer, press) the chair listed.

Texas Ethics Commission members and staff (as the opinion described them): The opinion treated the confidentiality duty in section 571.140 as binding on the Commission and its staff, with criminal and civil penalties for disclosing information the section makes confidential, and noted that being sued over the process does not by itself lift that confidentiality.

Respondents and third parties seeking the information (as the opinion described them): The opinion explained that the complaint and related information become disclosable only once entered into the record of a formal hearing or a judicial proceeding, and declined to resolve the constitutional questions, calling them fact-dependent and outside an AG opinion.

Common questions

Does a sworn ethics complaint become public once someone sues over it?
Not by itself. Under this opinion, the complaint stays confidential unless it is actually entered into the record of a formal hearing or a judicial proceeding. Litigation alone does not make it disclosable.

What happens if the complaint is entered into the court record?
The opinion said that once the complaint and related information are entered into the record of the judicial proceeding, they are no longer confidential and may be disclosed without invoking criminal or civil penalties.

Can a Commission member share the information to defend a lawsuit?
The opinion did not give a blanket yes. It said the information stays confidential unless entered into the record of a formal hearing or judicial proceeding, so a member's ability to disclose depends on whether that has happened.

What are the penalties for improper disclosure?
The opinion pointed to section 571.140(c) and (d), which impose criminal penalties and civil penalties, respectively, on a person who discloses information made confidential by the section.

Did the AG decide the constitutional issue?
No. The opinion said any constitutional question on these facts would be resolved on factual inquiries that are beyond the purview of an attorney general opinion.

Background and statutory framework

Chapter 571 of the Government Code governs the Texas Ethics Commission (Tex. Gov't Code §§ 571.001-.177; Tex. Const. art. III, § 24a). The chapter states the Legislature's policy of protecting free suffrage while protecting the right to petition government, and sets out five objectives (Tex. Gov't Code §§ 571.001, 571.001(1)-(5)). The Commission has authority to administer and enforce specified chapters and to adopt rules (Tex. Gov't Code §§ 571.061(a), 571.062), and any individual may file a sworn complaint alleging a violation of a law or rule the Commission enforces (Tex. Gov't Code § 571.122(a)). On a qualifying complaint, the Commission processes it and conducts a preliminary review and hearing (Tex. Gov't Code §§ 571.123, 571.124, 571.125(d)); if credible evidence of a violation exists but the matter cannot be resolved, the Commission orders a formal hearing (Tex. Gov't Code § 571.126(b)(1), (d)), determines by a preponderance whether a violation occurred, and issues a final decision and written report (Tex. Gov't Code §§ 571.129, 571.132(a)(1), 571.132(a)(2)). A respondent may appeal the final order to a district court (Tex. Gov't Code § 571.133).

Within that framework, section 571.140(a) makes a sworn complaint and the documents and additional evidence relating to its processing, preliminary review, hearing, or resolution confidential, barring disclosure unless entered into the record of a formal hearing or judicial proceeding (Tex. Gov't Code § 571.140(a); see also 1 Tex. Admin. Code § 12.7(a) (limited waiver); Tex. Gov't Code § 571.171(a)-(c) (referral to a prosecutor); Tex. Gov't Code § 571.133 (appeal)). Disclosure of information made confidential by the section carries criminal and civil penalties (Tex. Gov't Code § 571.140(c), (d)). Because the statute enumerates only specific instances in which the information loses its confidential character, the Legislature did not intend to remove confidentiality outside those circumstances (Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)). So while a sworn complaint may be the subject of litigation, it remains confidential if it has not been entered into the record of a judicial proceeding. Whether the complaint here had been entered into the record was a fact the request did not state; if entered, it is no longer confidential, and if not, it remains confidential and must not be disclosed (Tex. Ethics Comm'n Op. No. 8 (1992) at 3). Any constitutional question on these facts would depend on factual inquiries beyond the purview of an AG opinion (Tex. Att'y Gen. Op. No. GA-0867 (2011) at 2).

Citations

Statutes:

• Tex. Gov't Code §§ 571.001-.177, 571.001, 571.001(1)-(5), 571.061(a), 571.062, 571.122(a), 571.123, 571.124, 571.125(d), 571.126(b)(1), (d), 571.129, 571.132(a)(1), 571.132(a)(2), 571.133, 571.140, 571.140(a), 571.140(c), 571.140(d), 571.171(a)-(c)
• Tex. Const. art. III, § 24a
• 1 Tex. Admin. Code § 12.7(a)
• Tex. Ethics Comm'n Op. No. 8 (1992)
• Tex. Att'y Gen. Op. No. GA-0867 (2011)

Cases:

• Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex. 1981)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0152
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0152.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

June 13, 2017

Mr. Chase Untermeyer, Chair Opinion No. KP-0152
Texas Ethics Commission
Post Office Box 12070 Re: Application of section 571.140 of the
Austin, Texas 78711-2070 Government Code to sworn complaints filed
with the Texas Ethics Commission when
those complaints become the subject of
litigation (RQ-0145-KP)

Dear Mr. Untermeyer:

    You ask "whether section 571.140 of the Government Code prohibits a [Texas Ethics Commission ("Commission")] member from disclosing information related to sworn complaints that are filed with the commission, and which have been resolved by the commission, when the respondent to the sworn complaints has sued the member ... for [the member's] conduct as a commission member during the sworn complaint process." [1]

    Chapter 571 of the Government Code governs the Commission. See TEX. GOV'T CODE §§ 571.001-.177; see also TEX. CONST. art. III, § 24a (establishing the Commission). That chapter sets out the Legislature's policy "to protect the constitutional privilege of free suffrage by regulating elections and prohibiting undue influence while also protecting the constitutional right of the governed to apply to their government for the redress of grievances." TEX. GOV'T CODE § 571.001. Toward that purpose, chapter 571 establishes five objectives, among them to "control and reduce the cost of elections," to "eliminate opportunities for undue influence over elections and governmental actions," to disclose "information related to election expenditures and contributions for elections and for petitioning the government," and to "ensure the public's confidence and trust in its government." Id. § 571.001(1)-(5). Chapter 571 gives the Commission express authority to administer and enforce specific chapters in the Government Code, the Local Government Code, and the Election Code. See id. § 571.061(a); see also id. § 571.062 (granting the Commission rulemaking authority regarding chapter 571 or "any other law administered and enforced by the commission"). Any individual may file a sworn complaint with the Commission "alleging that a person subject to a law administered and enforced by the commission has violated a rule adopted by or a law administered and enforced by the commission." Id. § 571.122(a).

    Upon the filing of a sworn complaint satisfying form requirements with the Commission, the Commission processes the complaint and conducts a preliminary review. See id. §§ 571.123 (processing of complaint), 571.124 (requiring preliminary review); see also id. § 571.122(a) (including form requirements). Then, in a preliminary review hearing, the Commission considers submitted evidence related to the complaint and determines the existence of credible evidence about a violation within the Commission's jurisdiction. See id. § 571.125(d). If the Commission determines that credible evidence of a violation exists but cannot resolve or settle the complaint, the Commission shall order a formal hearing. See id. § 571.126(b)(1), (d). During a formal hearing, the Commission must "determine by a preponderance of the evidence whether a violation within [its] jurisdiction ... has occurred" and then issue a "final decision stating the resolution of the formal hearing." Id. §§ 571.129, 571.132(a)(1); see also id. § 571.132(a)(2) (requiring "a written report stating in detail the Commission's findings of fact, conclusions of law, and recommendation of criminal referral or imposition of a civil penalty, if any"). A respondent may appeal the Commission's final order to a district court. See id. § 571.133.

    Within this framework, section 571.140 provides, with certain exceptions, that a "sworn complaint, and documents and any additional evidence relating to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint or motion are confidential and may not be disclosed unless entered into the record of a formal hearing or a judicial proceeding." [2] Id. § 571.140(a); but see 1 TEX. ADMIN. CODE § 12.7(a) (Tex. Ethics Comm'n, Confidentiality) (providing for waiver of section 571.140's confidentiality under limited circumstances). Section 571.140(c) imposes criminal penalties on a person who discloses "information made confidential by this section." TEX. GOV'T CODE § 571.140(c); see also id. § 571.140(d) (providing for imposition of civil penalties on a person who discloses confidential information).

    You tell us that "[d]uring the course of investigating sworn complaints filed with the commission against a respondent, the commission held a preliminary review and preliminary review hearing to consider the sworn complaints and then ordered a formal hearing." Request Letter at 3. You state that the Commission issued subpoenas requiring the respondent to produce records for the formal hearing and that the respondent failed to comply. See id. You also state that the Commission referred the respondent's noncompliance to the district court. See id. You tell us the respondent sued the Commission members, in their official capacity and individually, for "allegedly violating the respondent's constitutional rights during the confidential sworn complaint process." Id. You tell us further that the Commission "then dismissed the sworn complaints." Id.

   You explain that third parties now seek information about the respondent's allegations, and you question whether a Commission member may disclose information to various persons including an attorney representing the member in the lawsuit, an insurer covering litigation costs or damages, a member's business partners, members of the press, or "other parties to whom the member believes disclosure is necessary to properly defend against the lawsuit." Id. at 3-4.

    Subsection 571.140(a) makes the sworn complaint and documents and any additional evidence as related information confidential and prohibits their disclosure unless entered into the record of a formal hearing or judicial proceeding. TEX. GOV'T CODE § 571.140(a); but see id. §§ 571.171(a)-(c) (authorizing Commission to refer the matter to a prosecuting attorney in certain circumstances and in such referral to disclose confidential information), 571.133 (authorizing respondent to appeal the Commission's final order). Conversely, the sworn complaint and related information are not confidential and may be disclosed when entered into the record of a formal hearing or a judicial proceeding. By its plain terms, subsection 571.140(a) establishes only specific circumstances in which the sworn complaint and related information are expressly made not confidential such that they may be disclosed. Given the Legislature's enumeration of the instances in which a sworn complaint and related information lose their confidential character, the Legislature made it clear that it did not intend to remove the confidential nature of this information outside of those express circumstances. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (recognizing that in statutory construction "every word of a statute must be presumed to have been used for a purpose" and that "every word excluded from a statute must also be presumed to have been excluded for a purpose"). Thus, subsection 571.140(a) maintains the confidentiality of a sworn complaint and related information in other circumstances. Accordingly, while a sworn complaint and related information may be the subject of litigation, if the information has not been entered into the record of a judicial proceeding as provided by subsection 571.140(a) it remains confidential.

    Here, you tell us the respondent initiated judicial proceedings, but you do not indicate whether the sworn complaint and related information have been entered into the record of that judicial proceeding. See Request Letter at 3. In the event they have, under the plain language of section 571.140(a), the sworn complaint and related information are no longer confidential and may be disclosed without invoking any criminal or civil penalties. TEX. GOV'T CODE § 571.140(a). Further, the plain language of subsection 571.140(a) provides that if the sworn complaint and related information have not been entered into the record of the judicial proceeding, they remain confidential and must not be disclosed. [3] See id.; see also Tex. Ethics Comm'n Op. No. 8 (1992) at 3 (concluding that while the First Amendment may allow a person who files a sworn complaint to publicly state that he or she filed the complaint, the prohibition on disclosure of a sworn complaint applies to the Commission and its staff).

                                  SUMMARY

                    Under the plain language of subsection 571.140(a) of the Government Code, a sworn complaint, along with documents and additional evidence related to the sworn complaint, filed with the Texas Ethics Commission loses its confidential nature and may be disclosed only when it has been entered into the record of a formal hearing or a judicial proceeding. Thus, despite being the subject of litigation, a sworn complaint remains confidential if it has not been entered into the record of a formal hearing or a judicial proceeding.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] Letter from Mr. Chase Untermeyer, Chair, Tex. Ethics Comm'n, to Honorable Ken Paxton, Tex. Att'y Gen. at 3 (Dec. 15, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] To the extent any of the information about which you ask has previously been made public, subsection 571.140(a) provides that such information "remains public information." TEX. GOV'T CODE § 571.140(a).

[3] Any constitutional question at issue here would be resolved on a number of factual inquiries. Such fact questions are beyond the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0867 (2011) at 2 (stating, in the context of a constitutional question, that "[a]ttorney general opinions do not answer fact questions").