Rules
Proposed
PROPOSED RULES
At its December 2024 meeting, the Texas Ethics Commission voted to propose the following repealed, amended and new rules: §§ 8.3 regarding Subject of an Advisory Opinion, 8.5 regarding Persons Eligible to Receive an Advisory Opinion, 8.11 regarding Review and Processing of a Request, 8.17 regarding Request Answered by Written Response, 8.18 regarding No Defense to Prosecution or Civil Penalty, 8.21 regarding Compilation of Advisory Opinions, 13.1 regarding Referral to Prosecuting Attorney, and 20.1(17) regarding the definition of “principal purpose”. The text of the proposed repealed, amended and new rules are located below.
Summary of Proposed Rules, in English
Chapter 8: These amended and repealed rules are intended to clarify the requirements for requesting an advisory opinion under Chapter 571 of the Government Code and to make sure the requirements are consistent with state law.
13.1: This new rule is being proposed in response to the CCA's recent decision in Ex Parte Charette, which held that a referral from the TEC is a jurisdictional prerequisite to the bringing of criminal charges against a political candidate for campaign-law violations. The purpose of this rule is to provide information regarding the TEC's procedures for making criminal referrals as authorized by Section 571.171(a) of the Texas Government Code.
20.1(17): A group is generally a political committee if it has a principal purpose of making campaign expenditures or accepting campaign contributions. The TEC proposes amending the definition of “principal purpose” to determine whether a group is a political committee. This amended rule avoids a bright-line approach based on a percentage of spending. Instead, it embraces the Federal Election Commission method of determining whether a group is a political committee by taking a holistic view of the group’s activity to be adjudicated on a case-by-case basis. Adopting the FEC approach will also allow the TEC and regulated community to more easily use the precedent set by FEC adjudications and federal court decisions to determine whether a group is a political committee.
Resumen de las Reglas Propuestas, en español
Capítulo 8: Estas reglas enmendadas o revocadas tienen la intención de aclarar los requerimientos para pedir una opinión consultiva bajo el Capítulo 571 del Código Gubernamental y para asegurar que los requerimientos sean consistentes con la ley estatal.
13.1: Esta nueva regla se propone como respuesta a la reciente decisión de CCA en Ex Parte Charette, la cual mantuvo que una referencia de la TEC es un prerrequisito judicial para levantar cargos criminales en contra de un candidato político por violaciones de las leyes de campaña política. El propósito de esta regla es proveer información relacionada con los procedimientos de la TEC para reportar a los criminales de acuerdo con la autorización de la Sección 571.171(a) del Código Gubernamental de Texas.
20.1(17): Un grupo es generalmente un comité político si tiene el propósito principal de hacer gastos de campaña política o aceptar contribuciones para una campaña política. La TEC propone enmendar la definición de ¨un propósito principal¨ para determinar si un grupo es un comité político. Esta regla enmendada evita un enfoque de criterio claro (bright line approach) basado en el porcentaje de sus gastos. Al contrario, adopta el método de la Comisión Federal de Elecciones (FEC, por sus siglas en inglés) para determinar si un grupo es un comité político, al tomar una perspectiva holística de las actividades del grupo que serán juzgadas caso por caso. Adoptar el enfoque de la FEC también permitirá a la TEC y a la comunidad regulada utilizar más fácilmente los precedentes establecidos por las resoluciones de la FEC y las decisiones de los tribunales federales para determinar si un grupo es un comité político.
§8.3. Subject of an Advisory Opinion.
Text of Proposed Amended Rule
§8.5. Persons Eligible to Receive an Advisory Opinion.
Text of Proposed Amended Rule
§8.11. Review and Processing of a Request.
Text of Proposed Amended Rule
§8.17. Request Answered by Written Response.
Text of Proposed Repealed Rule
§8.18. No Defense to Prosecution or Civil Penalty.
Text of Proposed Amended Rule
§8.21. Compilation of Advisory Opinions.
Text of Proposed Amended Rule
§13.1. Referral to Prosecuting Attorney.
Text of Proposed New Rule
§20.1(17). Definitions.
Text of Proposed Amended Rule
§§8.3. through 8.21.
Text of Proposed Amended and Repealed Rules
The proposed new language is indicated by underlined text.
The deleted language is indicated by [strikethrough] text.
§8.3. Subject of an Advisory Opinion.
[(a) The commission may only issue a written advisory opinion on the application of any of the following laws:
(1) Government Code, Chapter 302 (concerning Speaker of the House of Representatives);
(2) Government Code, Chapter 303 (concerning Governor for a Day and Speaker's Reunion Day Ceremonies);
(3) Government Code, Chapter 305 (concerning Registration of Lobbyists);
(4) Government Code, Chapter 572 (concerning Personal Financial Disclosure, Standards of Conduct, and Conflict of Interest); (5) Government Code, Chapter 2004 (concerning Representation Before State Agencies);
(6) Local Government Code, Chapter 159, Subchapter C, in connection with a county judicial officer, as defined by Section 159.051, Local Government Code, who elects to file a financial statement with the commission;
(7) Election Code, Title 15 (concerning Regulating Political Funds and Campaigns);
(8) Penal Code, Chapter 36 (concerning Bribery and Corrupt Influence);
(9) Penal Code, Chapter 39 (concerning Abuse of Office).
(10) Government Code, §2152.064 (concerning Conflict of Interest in Certain Transactions); and
(11) Government Code, §2155.003 (concerning Conflict of Interest).]
[(b)] (a) The commission may not issue an advisory opinion that concerns the [subject matter]same or substantially similar facts of pending litigation known to the commission.
[(c)] (b) For purposes of this section, the term litigation includes a sworn complaint proceeding before the commission [only if the Government Code Subchapters C-H, Chapter 2001, applies to the proceeding] if the request is made by a respondent or complainant or the agent of a respondent or complainant of pending sworn complaint.
[(d)] (c) An advisory opinion cannot resolve a disputed question of fact.
§8.5. Persons Eligible To Receive an Advisory Opinion.
A person who is subject to one of the laws described in [§8.3(a) of this chapter (relating to Subject of Advisory Opinions)] §571.091, Gov’t Code may request an opinion that advises how the law applies to that person in a specific real or hypothetical factual situation. Opinions may only address how the law applies to the requestor, not any other real or hypothetical person.
§8.11. Review and Processing of a Request.
(a) Upon receipt of a written request for an advisory opinion, the executive director shall determine whether the request:
(1) pertains to the application of a law specified under [§8.3 of this chapter] §571.091, Gov’t Code;
(2) meets the standing requirements of §8.5 of this chapter; and
(3) meets the form requirements of §8.7 of this chapter. [; and]
[(4) cannot be answered by written response under § 8.17 of this chapter by reference to the plain language of a statute, commission rule, or advisory opinion.]
(b) If the executive director determines that a request for an opinion meets the requirements of this chapter as set forth in subsections (a)(1)-(3) of this [section and that the request cannot be answered by written response under §8.17 of this chapter], the executive director shall assign an AOR number to the request. The executive director shall notify the person making the request of the AOR number and of the proposed wording of the question to be answered by the commission.
(c) If the executive director determines that a request for an opinion does not meet the requirements of this chapter as set forth in subsections (a)(1)-(3) of this section [or that the request can be answered by written response under §8.17 of this chapter], the executive director shall notify the person making the request of the reason the person making the request is not entitled to an advisory opinion in response to the request.
(d) A person who requests an opinion may withdraw the request prior to its inclusion on a meeting agenda filed by the Commission pursuant to the Open Meetings Law. Once a request is included on such an agenda, it may not be withdrawn by the requestor.
(e) The executive director may submit written questions to the requestor to clarify the real or hypothetical facts submitted with the request.
(f) The executive director may invite comments regarding an advisory opinion request from individuals or entities that may have expertise or an interest in the subject of the request.
[§8.17. Request Answered by Written Response.
If the executive director determines that a request can be answered by reference to the plain language of a statute, commission rule, or advisory opinion:
(1) the executive director shall provide a written response to the person making the request that cites the language of the statute, rule, or advisory opinion, as applicable; and
(2) the person making the request is not entitled to an advisory opinion in response to the request.]
§8.18. No Defense to Prosecution or Civil Penalty.
A person who requests an advisory opinion does not obtain a defense to prosecution or to imposition of a civil penalty by requesting the opinion if any of the following apply:
(1) the commission is not authorized to answer the request because it does not pertain to the application of a law specified under [§8.3 of this chapter] §571.091, Gov’t Code;
(2) the request does not meet the standing requirements of §8.5 of this chapter; or
(3) the request does not meet the form requirements of §8.7 of this chapter.[; or]
[(4) the executive director responds to the request by written response under §8.17 of this chapter.]
§8.21. Compilation of Advisory Opinions.
The executive director shall number and categorize each advisory opinion issued and publish the opinion on the commission’s website. [and shall annually compile a summary of advisory opinions in a single reference document.] The executive director may publish and provide copies of advisory opinions in other formats as may be in the public interest.
§13.1. Referral to Prosecuting Attorney.
Text of Proposed New Rule
The proposed new language is indicated by underlined text.
Chapter 13. REFERRALS TO PROSECUTORS.
§13.1. Referral to Prosecuting Attorney.
(a) Under section 571.171 of the Government Code, the commission may vote to refer a matter related to a sworn complaint to the appropriate prosecuting attorney for criminal prosecution upon the commission accepting jurisdiction over the sworn complaint.
(b) A referral under subsection (a) of this section shall be delayed in accordance with section 571.134 of the Government Code.
§20.1. Definitions.
Text of Proposed Amended Rule
The proposed new language is indicated by underlined text.
The deleted language is indicated by [strikethrough] text.
Chapter 20. REPORTING POLITICAL CONTRIBUTIONS AND EXPENDITURES
Subchapter A. GENERAL RULES.
§20.1. Definitions.
(1) – (16) – (No change.)
(17) Principal purpose --A group has as a principal purpose of accepting political contributions or making political expenditures, including direct campaign expenditures, when that activity is an important or a main function of the group.
(A) A group may have more than one principal purpose. When determining whether a group has a principal purpose of accepting political contributions or making political contributions, the Commission may consider the full range of activities by the group and its members, including, but not limited to:
(i) public statements;
(ii) fundraising appeals;
(iii) government filings;
(iv) organizational documents; and
(v) the amount of political expenditures made and political contributions accepted by the group and its members.
(B) [A group has as a principal purpose accepting political contributions if the proportion of the political contributions to the total contributions to the group is more than 25 percent within a calendar year. A contributor intends to make a political contribution if the solicitations that prompted the contribution or the statements made by the contributor about the contribution would lead to no other reasonable conclusion than that the contribution was intended to be a political contribution.] A group is presumed to be a political committee if the proportion of the group’s political contributions to the total contributions to the group is 50 percent or more.
(C) The group may maintain specific evidence of contributions related only to political contributions or only to nonpolitical contributions. For example, the group may ask the contributor to make an indication when the contribution is made that the contribution is only a nonpolitical contribution.
(D) [A group has as a principal purpose making political expenditures, including direct expenditures, if the group expends more than 25 percent of its annual expenses to make political expenditures within a calendar year.]A group is presumed to be a political committee if the proportion of the group’s political expenditures to the total expenditures of the group is 50 percent or more. The following shall be included for purposes of calculating the [threshold] proportion of a group’s political expenditures to all other spending:
(i) the amount of money paid in compensation and benefits to the group's employees for work related to making political expenditures;
(ii) the amount of money spent on political expenditures; and
(iii) the amount of money attributable to the proportional share of administrative expenses related to political expenditures. The proportional share of administrative expenses is calculated by comparing the political expenditures in clause (ii) with nonpolitical expenditures. (For example, if the group sends three mailings a year and each costs $10,000, if the first two are issue-based newsletters and the third is a direct advocacy sample ballot, and there were no other [outside] expenditures, then the proportion of the administrative expenses attributable to political expenditures would be 33%.) Administrative expenses include:
(I) fees for services to non-employees;
(II) advertising and promotion;
(III) office expenses;
(IV) information technology;
(V) occupancy;
(VI) travel expenses;
(VII) interest; and
(VIII) insurance
(E) The group may maintain specific evidence of administrative expenses related only to political expenditures or only to nonpolitical expenditures. Specifically identified administrative expenses shall not be included in the proportion established by subparagraph (D)(iii) but allocated by the actual amount of the expense.
(F) In this section, the term "political expenditures" includes direct campaign expenditures.
(18) – (23) – (No change.)