                                            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 peti.tioning 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).



        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.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
Mr. Chase Untermeyer - Page 2                    (KP-0152)




        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, .132(a)(l); see also id § 571.132(a)(2) (requiring "a written
report stating in detail the Commission's findings of fact, conclusions oflaw, 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.



        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).
Mr. Chase Untermeyer - Page 3                          (KP-0152)



        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. l 71(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 oflitigation, 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).




           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 ofa constitutional question, that "[a]ttomey general opinions do not answer fact questions").
Mr. Chase Untermeyer - Page 4                (KP-0152)



                                      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
