From Texas Statutes: The Texas Ethics Commission

For background purposes.

Government Code

- Title 5. Open Government; Ethics

- - Subtitle B. Ethics

- - - Chapter 571. Texas Ethics Commission.

From the Texas Tribune: Analysis: In Texas, Lawmakers Regulate Their Own Regulators

In 2306, while walking though Article 3 of the Texas Constitution, we looked at the language that established the Texas Ethics Commission. We looked at the factors that made it toothless.

Here's more on that subject.

The author argues that one of the reasons ethics is tough to police - not surprisingly - is that people don't pay attention.

- Click here for the article.

Texas legislators apparently think the people appointed to regulate campaign finance and officeholder ethics are “haughty.”

God bwess their widdle hearts.

Seriously, senators made it clear at a State Affairs Committee meeting this week that they are riled up at the Texas Ethics Commission — and reveled in an opportunity to jab and poke at the officials who police their industry.

It’s an interesting setup, where the people who are being regulated are also the people in control, more or less, of the regulators. The hearing was also a great exhibition of lawmakers doing one of the things they do best: Bullying unelected state officials and employees.

They said the commission spends too much time on nickel-and-dime infractions — paperwork errors and the like. They griped about a commissioner who rejected a resignation request from Lt. Gov. Dan Patrick. Patrick wanted to appoint someone in Hugh Akin’s place and let him know; Akin let Patrick know, in a letter, that he’ll serve until his term ends 13 months from now.

This is an insiders’ fight. One reason it’s hard to write ethics laws is that most Texans don’t pay much attention to the mechanics of elections, lobbying or the everyday business of being an elected officeholder in Texas — except when there is a scandal big enough to stay in the news for a while.

For more:

- In Texas, a Collapse of Ethics Reform.
- Conservatives Call For Reform or Abolition of the Texas Ethics Commission.
- Ethics reform fight flares anew.
- The brutal death of ethics reform in Texas.
- Republican Senators Grill Texas Ethics Commission.

From the Austin American - Statesman: Austin state Rep. Dawnna Dukes to step down amid investigation

Texas ethics rules are loose, but not non-existent.

- Click here for the article.

Dukes drew the attention of investigators earlier this year when she was accused of misusing her staff for nonstate work.

Michael French, an employee she fired shortly after he complained, said that Dukes was forcing her employees to work on state time on a pet project, theAfrican American Community Heritage Festival. That event, launched 17 years ago and co-founded by Dukes, raised money for Huston-Tillotson University.

Dukes maintained that the directive was acceptable because the festival benefited the community.

“There is not an issue with employees working on community events that benefit the constituency,” Dukes told the American-Statesman at the time. “I take great pride in this event being well organized and being unblemished. For 17 years we have not had one problem.”

After looking into the issue, the state auditor’s office referred its concerns to the Travis County district attorney’s office, which opened an investigation. The Texas Rangers soon joined in.

During the probe, other allegations of wrongdoing came to light. A text message by Dukes obtained by the Statesman indicated that she was using state money to pay a legislative aide for gas needed to drive Dukes’ daughter to and from school and run other personal errands. The employee received a $268-per-month raise on Sept. 1, 2015, according to documents obtained through the Texas Public Information Act.

She will resign after the election apparently in order to maximize her retirement pay.

Dukes is allowing her current term to expire rather than resigning immediately, allowing her to make an extra $3,220 per year in retirement benefits from the state because serving any amount in January counts as a full year when calculating pension benefits. Dukes will make $74,060 per year in retirement, a substantial bump from the $41,000 she’s making over two years in her current term.

Dukes’ name will still appear on the Nov. 8 general election ballot. If she beats Republican Gabriel Nila in the heavily Democratic district, her seat will be vacant starting Jan. 10 until a special election that will probably be held in the spring, while the Legislature is in session.

Because there are no other Travis County races scheduled for the spring, the special election could cost taxpayers as much as $200,000, Travis County Clerk Dana DeBeauvoir said.

From the Texas Tribune: Analysis: "Smitty," a Texas Lobbyist for the Small Fry, Retiring After 31 Years

While John Boehner begins his lobbying career in DC, another ends his in Austin.

As you'll see below, Smith advocated for issues that tend to cut against the grain of Texas' political culture. It's worth noting that the organization he headed was originally set up by Ralph Nader - not a Texan. The Wikipedia on Smith - see the link below - Mentions that he serves on the boards of the following advocacy groups: Clean Water Action, the Texas Wind Power Coalition, Texans for Public Justice, and Campaigns for People. All pro-regulation.

- Click here for the article.

In the early 90s — the heyday of consumer rights legislation and regulation in Texas — Robert Cullick, then a reporter at the Houston Chronicle, gave Tom “Smitty” Smith of Public Citizen Texas an unofficial title: Everybody’s Third Paragraph.

Smith, 66, announced his retirement Tuesday from his official post after 31 years, ending a long run of organizing and lobbying on behalf of consumers and citizens on a range of issues like utilities, insurance and political ethics. He was often the voice of the opposition in legislative fights and in the media, which earned him that reporter's epithet.

He’s from that part of the Austin lobby that doesn’t wear fancy suits, doesn’t drive the latest luxury cars and doesn’t spend its time fawning over and feeding elected officials. Smitty has a beard, an omnipresent straw hat and, often, a colorful sheaf of flyers making his points on whatever cause he’s pushing at the time.

Smitty has been a leading voice for government intervention and regulation of big industries and interests in the capital of a state with conservative, business-friendly politicians from both parties who pride themselves on light regulation, low taxes and a Wild West approach to money in politics.

. . . His causes over the years have included food security, decommissioning costs of the nuclear reactors owned by various Texas utilities, insurance regulations, ethics and campaign finance laws. He’s lobbied on environmental issues and product safety.

He counts the ethics reforms of 1991 as one of his big wins. As unregulated as Texas political ethics and campaign finance might seem today, things were a lot looser before reformers used a flurry of scandals and attendant media coverage to force changes. Smith is proud of a medical bill of rights that gave consumers some leverage with their doctors and their health insurers.

Public Citizen was a key player in the creation of the State Office of Administrative Hearings, which took administrative courts out of several regulatory agencies and put them in a central office, farther from the reach of regulated industries and elected officials. Smith now points to the Texas Railroad Commission, which still has its own administrative hearings, as an example of a too-close relationship between regulators, the companies they regulate and the judges supposed to referee their differences.

For more:

- Tribpedia: Tom "Smitty" Smith.
- Wikipedia: Public Citizen Texas.
- Public Citizen: Tom "Smitty" Smith.
- State Office of Administrative Hearings.
- Sunset Review: State Office of Administrative Hearings.
- Government Code: State Office of Administrative Hearings.
- Texas Ethics Commission.

For 2306 today - all from the Texas Tribune

- Federal Regulators Take Teladoc’s Side in Medical Board Suit.

Teladoc, the Dallas-based company that sued Texas over its telemedicine regulations, has a new ally in the Federal Trade Commission.

In a letter sent to the U.S. 5th Circuit Court late Friday, the federal antitrust agency sided with Teladoc in the company’s legal battle, criticizing the Texas Medical Board for allegedly misinterpreting case law.

The telehealth company sued last year to block board rules that in most cases require face-to-face contact between a patient and a physician before a physician can issue a prescription.

That threatened Teladoc’s business model, which virtually connects Texas patients to remote, Texas-licensed doctors, some of whom are based out-of-state. The company says its physicians consult patients over the phone for routine medical issues, and patients can upload photos or other information describing their symptoms and medical history.

Teladoc filed an antitrust lawsuit against the regulatory Texas Medical Board in federal courtlast year, alleging that the 19-member board made up mostly of doctors had behaved like a cartel by passing rules intended to limit competition.

- Empower Texans Escalates Battle With Ethics Commission.

The influential conservative group Empower Texans is escalating its long-running battle against the Texas Ethics Commission, accusing a former member of the state watchdog agency of improperly seeking to influence state legislation.

Empower Texans President Michael Quinn Sullivan on Thursday lodged a criminal complaint against Tom Harrison, who abruptly resigned in June as the commission's vice chairman. The complaint, filed with the Travis County district attorney's office, alleges that Harrison illegally gave gifts to lawmakers in his role as deputy director of the Texas County and District Retirement System, one of the state's largest pension funds.

Sullivan says that activity should have required Harrison to register with the state as a lobbyist. And even if Harrison did register, he still would have been in violation of another rule saying lobbyists cannot serve on the ethics commission.

- Lawmakers to Examine Ballooning Cost of Tuition Program for Texas Veterans.

State university leaders have long complained about what they call an underfunded mandate to provide an increasing number of veterans and their dependents a free college education under the Hazlewood Act. After failed attempts in the last legislative session to restrict eligibility, school officials will meet with House lawmakers Tuesday at the Capitol to discuss ways to pay for it, including tapping the state’s savings account.

Analysis: The Long and Winding Road to the Texas Ethics Commission

A look at the convoluted appointment process for the Texas agency responsible for overseeing campaign finance, the regulation of lobbyists, and a number of other items.

- Click here for the article.

The Texas Ethics Commission is a dog that doesn’t bite.

It’s designed that way. 

It’s the regulatory agency in charge of politicians and legislators. You think those folks want to give it real teeth?

That said, it’s also a strange place when it comes to appointing commissioners.

Most executive branch agencies in Texas are overseen by elected officials or appointed boards and executives. The elected leaders are your own fault, assuming you’re a voter. The appointments are mostly made by the governor, with a handful assigned to the lieutenant governor or the speaker of the House.

The eight-member ethics panel, however, is unique.

The governor appoints four members, and the lite guv and the speaker appoint two each. But wait, there’s more. Each of them chooses from lists of potential appointees provided by legislators in the House and the Senate. Not done with the rules yet: Those lists are split by party.

In practice, that means the political caucuses in the House and Senate have the first cull when it comes to who serves on the state commission that regulates the political activities of candidates, officeholders and lobbyists.

The story links to anther which looks at the current backlog of appointees to executive agencies.

- More than 300 Gubernatorial Appointees Have Expired Terms.

And in other Texas Ethics Commission news ....

Here's a bit on an ongoing dispute it has had with a leader of an influential Tea Party affiliated activist. The Texas Ethics Commission thinks he's a lobbyist and should be subject to rules related to lobbying in the state. He disagrees.

- Click here for "Ethics commission wins at appeals court in lobbying case."

A state appeals court has ruled against a powerful conservative activist locked in a long-running legal feud with Texas’ campaign finance regulator, ordering a case that centers on a fine for breaking lobbying laws to be transferred to Travis County. 

Empower Texans President Michael Quinn Sullivan, an influential figure in tea party circles, was fined by the commission in July 2014 for not registering as a lobbyist after it found “evidence of direct communications intended to influence legislative action.”

He appealed in state district court. However, shortly after the fine was levied, Sullivan claimed Denton County as his primary residence in a move that allowed the legal challenge to play out in North Texas as opposed to Travis County.

The Fort Worth-based 2nd Court of Appeals issued a ruling Wednesday to overturn a lower court that had determined Sullivan was a resident of Denton County. The appeals court also ordered the case to be transferred to Travis County, which the court described as the “mandatory venue.”

In the roughly 15 months that the case has bounced around state courts, residency has emerged as a key issue in the case. The commission had long charged that Sullivan plotted to evade a state fine for breaking lobbying laws by claiming residency outside of traditionally liberal Travis County and taking his case up north, where it was dismissed by a judge in Denton earlier this year.

Sullivan’s lawyers, who argue that his actions never amounted to lobbying, said he had long-standing roots in North Texas before claiming Denton as his residence, including family ties and an Empower Texans office.

The three-judge panel at the appeals court rejected that, along with an affidavit Sullivan signed attesting to Denton residency, saying the argument “is nothing more than a legal conclusion unless it is supported by facts that establish such residence.”

For more:

- Wikipedia: Michael Quinn Sullivan.- Tribpedia: Michael Quinn Sullivan.
- Wikipedia: Texans for Fiscal Responsibility.
- Appeals Court Backs Ethics Commission Over Activist.

From the San Antonio Express-News: Texas ‘dark money’ rule set for court fight ahead of primaries

Texas has a history of not only allowing money to flow freely through the political system, but secretly. Efforts are being made to change that, but there are similar efforts to derail those attempts. Here's the latest on that battle. Notice that everything is bogged down in the courts.

- Click here for the article.

Texas’ controversial “dark money” regulation, intended to bring some anonymous political spending out of the shadows, is facing renewed pressure from politically active nonprofits ahead of the 2016 election cycle.

Two groups are waging separate lawsuits against the Texas Ethics Commission to strike down the rule in an attempt to allow all 501(c)(4) nonprofits to continue keeping their donors secret during the upcoming state primaries in March — and beyond.

Meanwhile, the commission, aware that a federal judge will have the final word, has been working for months to amend the rule by tweaking what some of its members have described as “potential weaknesses” that could be exposed in court. The state’s top campaign finance regulator has even admitted that he’s not sure the rule will withstand scrutiny of a federal judge.

At issue: When and how the state can determine that a 501(c)(4) nonprofit should be regulated like a political action committee, which is required to disclose its sources of money.

501(c)(4) nonprofits are allowed to spend money in an election independent of candidates and do not have to reveal who is funding the efforts.

The commission last year passed a rule that would trigger PAC status and disclosure requirements for a politically active nonprofit if more than 25 percent of their total contributions or expenditures in a calendar year are used for electioneering.

The groups suing have said that Texas is trying to label them as PACs when their main purpose is not to support or oppose candidates. They’ve argued in court documents that the rule could impose a “chill” on their future election activity.

Both lawsuits were filed more than a year ago, but there’s been little action in either case.

For more:

- Ethics commission sets sights on ‘campaign in a box’
- Analysis: It's Not Bribery Unless They Say It's Bribery.

From the San Antonio News: Texas Supreme Court chief justice settles ethics fine

Here's a story that ties together the Texas Supreme Court and the Texas Ethics Commission together - not in a way that that chief justice would have liked probably.

- Click here for it.

Texas Supreme Court Chief Justice Nathan Hecht has ended an ethics dispute that languished in state court for nearly seven years, agreeing to pay a substantially reduced fine to settle charges that he broke state campaign finance laws.

The settlement, made public in court documents Wednesday, concludes a high-profile case that has become the longest-running appeal of a fine levied by the Texas Ethics Commission in the roughly two and a half decades since the agency was created.

Hecht was fined $29,000 in 2008, one of the largest campaign finance penalties ever issued in the state, after the commission determined he broke campaign finance laws while successfully fighting allegations that he abused his position by openly supporting President George W. Bush's short-lived U.S. Supreme Court nomination of Harriet Miers.

Hecht accepted a six-figure discount for his legal bill in the course of challenging the abuse-of-power charges. The commission concluded the discount was equivalent to a campaign contribution, one he failed to report, and that the total amount exceeded the $5,000 contribution limit on donations from law firms to judicial candidates.

Instead of paying, Hecht decided to fight the fine in state district court. And the lawsuit has stalled in the courts since it was filed in January 2009, raising the ire of watchdog groups that accused the state's Republican machine of working to bury the case.

Under the settlement, Hecht agreed to pay $1,000 and to "obtain a written fee agreement with any lawyer or law firm he hires to represent him either before or within a reasonable time after the representation commences."

Watchdog groups snarled at the final conclusion to the case, saying the commission let Hecht "off the hook" and that the fine is coming years late and "$28,000 light."

"This saga makes a mockery of so-called ethics enforcement," said Alex Winslow, executive director of Texas Watch, a liberal consumer rights group that filed the ethics complaint against Hecht in 2008. "Apparently, the way high ranking officials can beat the rap is to simply delay the process indefinitely."

Random items related to the Texas Legislature

All from the Texas Tribune:

- Long Legislative Road for Voucher Bills Begins.

A preview of the looming battle over school vouchers played out Thursday as a state Senate panel considered two proposals to provide state financial support to parents who want to send their children to private schools.

Debate focused on how to ensure taxpayer funds are well spent at participating private schools as lawmakers traded questions over whether such plans would improve education in the state.

- District Attorneys' Report: Misconduct Exceedingly Rare.

In a report issued Monday morning, an association representing Texas prosecutors disputed what they say are illegitimate claims of rampant prosecutorial misconduct without accountability.

“It’s just not true,” said Rob Kepple, executive director of the Texas District and County Attorneys Association.

The association spent months reviewing 91 Texas cases in which the Northern California Innocence Project in a Marchreport identified prosecutor error or misconduct. The TDCAA said it discovered only six instances “in which a prosecutor arguably engaged in deliberately dishonest or fraudulent conduct that produced unjust results.”

Kepple said the Innocence Project report was “replete with errors” and called it “really kind of embarrassing from a scholarly aspect.”

Cookie Ridolfi, founder of the Northern California Innocence Project, who researched the Texas misconduct data, said she stood by the organization’s findings.

- Ethics Bills Draw Ire of Conservative Activists' Lawyers.

Lawyers for some of the state's most influential conservative groups voiced bitter opposition late Wednesday to several proposals to reform Texas' campaign finance laws, arguing the bills would only make a broken system worse and trample First Amendment rights.

Anticipating the backlash, state Rep. Sarah Davis nodded to the tough crowd after presenting her House Bill 22, which would overhaul the Texas Ethics Commission, particularly to beef up its enforcement authority.

"I love agreed-to bills, but I have a feeling there is absolutely no change that comes before this committee that contains the words 'Texas Ethics Commission' that Empower Texans would not just immediately oppose," the West University Place Republican said, referring to the conservative group that has come under scrutiny by state campaign finance regulators. "But I'm happy to work with them."

The late-night meeting of the House State Affairs Committee offered the latest snapshot of the intense, organized scrutiny some lawmakers face as they put a renewed focus on ethics reform. Gov. Greg Abbott elevated the issue last month by naming it one of five emergency items, and some of the ideas before the panel Wednesday were similar to what he has called for.

- Senate Passes Patrick's Tax Cut Package.

The Texas Senate on Wednesday approved Lt. Gov. Dan Patrick’s multibillion-dollar tax relief package to cut property and business margins taxes, tossing the ball into the House's court.

"Rather than spend excess revenue, the Senate has voted to return $4.6 billion to Texas homeowners and businesses over the next two years," Patrick said in a statement.

The biggest piece of that package, Senate Bill 1, authored by Senate Finance Chairwoman Jane Nelson, R-Flower Mound, passed the Senate 26 to 5. The bill devotes about $2.4 billion to increase homestead exemptions from school property taxes.

- Senate's Property Tax Cut May Stall in House.

While the Texas Senate easily approved a $2.4 billion plan to provide property tax relief to homeowners Wednesday, the measure may lose momentum when it reaches the House, where leaders appear more interested in cutting the sales tax.

“We’re going to present our plan here soon, and you’ll see what we’ll be driving for,” House Ways and Means Committee Chairman Dennis Bonnen, R-Angleton, said. “I think it’s fair to say at this time that we’re focusing on taxes that will have a more meaningful impact on growing the Texas economy, and property tax cuts are not part of the plan.”
Bonnen said he will publicly present his full proposal for tax cuts early next week.

Earlier this month, he filed three tax cut bills, two similar to Senate proposals to cut the margins tax paid by businesses, and a third that would cut the state sales tax.

Dark Money in Texas

The Houston Chronicle profiles an Austin lobbyist and attorney who is trying to persuade the Texas Ethics Commission to require that all campaign contributions are disclosed. He's issued a petition for rulemaking asking the agency to implement something the Texas governor has already vetoed.

The term "dark money" refers to campaign contributions that are not disclosed prior to voting. It exists simply because some individuals and organizations do not want other to know who they support. While some argue that this is an acceptable way for contributors to maintain their privacy, others argue that it invites corruption.

From the article:

“The purpose of my proposal is to eliminate ‘dark money’ from Texas elections by dragging it into the sunlight,” Bresnen wrote to acting Executive Director Natalia Luna Ashley. “Secret money influencing elections — the life blood of self governance — is intolerable as a matter of law and is against the public interest. The Commission should exercise its authority to do something about it.”

The issue of dark money has been a political lightning rod since the U.S. Supreme Court’s 2010 ruling in Citizens United vs. the Federal Election Commission. That decision paved a path for outside groups like super PACs and 501(c)(4)s to raise and spend unlimited sums from corporations, labor groups and deep- pocketed individual donors.

And while both 501(c)(4)s and super PACs can accept unlimited sums of cash, only super PACs are required to identify donors.

As a result, super PACs regularly set up sister outfits in the form of a 501(c)(4)s to funnel money anonymously to candidates or to fund attack ads. That’s how they got the ominous title “dark money” groups.

In Texas, the issue hit home during the legislative session when Gov. Rick Perry vetoed a dark money disclosure bill that would have required politically active 501(c)4s to reveal contributors who give more than $1,000 to any dark money group that spends $25,000 or more on politicking.

That measure, sponsored by Sen. Kel Seliger and Rep. Charlie Geren, R-Fort Worth, was intended to require non-profit groups like Empower Texans to report some of its secret donors.

Bresnen’s petition from Tuesday takes aim again at Empower Texans and its president, Michael Quinn Sullivan, saying the “$372,000 in secret political money that Mike Sullivan used in the 2012 elections” was part of the reason he’s asking the commission to step in.

For additional detail:

- Wikipedia: Dark Money.
- opensecrets.org: New Dark Money Data Measures Groups' Politicization.
- opensecrets.org: The Shadow Money Trail.