                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                March 13,2003



The Honorable Mary Denny                                 Opinion No. GA-0035
Chair, Committee on Elections
Texas House of Representatives                           Re: Whether questioning by the Texas Ethics
P.O. Box 2910                                            Commission      of third-party witnesses to the
Austin, Texas 78768-2910                                 circumstances giving rise to a sworn complaint
                                                         violates section 57 1.140 of the Governrnent Code
                                                         (RQ-0599-JC)


Dear Representative     Denny:

         Government Code section 57 1.140 makes it a Class A misdemeanor to disclose “proceedings
at a preliminary review or informal hearing performed by the [Texas Ethics] commission, a sworn
complaint, and documents and any additional evidence relating to the processing, preliminary
review, informal hearing, or resolution of a sworn complaint or motion . . . .” TEX. GOV’T CODE ’
ANN. 5 571.140 (Vernon 1994). Your predecessor as Chair of the Committee on Elections asked
this office the narrow question of whether the staff of the Texas Ethics Commission (“the
Commission”) may in any instance interview third-party witnesses concerning a matter about which
the Commission has received a sworn complaint without necessarily violating Government Code
section 571.140.’

         The Commission is charged by statute with enforcing chapters 302,303,305,572,      and 2004
of the Government Code, subchapter C, chapter 159 of the Local Government Code, and Title 15
of the Election Code. See id. 8 571.061 (Vernon Supp. 2003). Its duties include processing a sworn
complaint under subchapter E of Government Code chapter 57 1. A sworn complaint “alleg[ es] that
a person subject to a law administered and enforced” by the Commission has violated such a law or
a Commission rule. Id. 9 57 1.122(a) (Vernon 1994). Such a complaint must be in writing and must
set forth the complainant’s name and address, the name and position or title of each respondent, the
nature of the alleged violation, a statement of the facts involved, all documents available to the
complainant that are relevant, and a list of all relevant material of which the complainant is aware
that either is not in the complainant’s possession or available to him. See id. § 571.122(b). The
Commission      “shall conduct” a preliminary review on receipt of a proper sworn complaint,



         ‘See Letter from Honorable Debra Danburg, Chair, Committee on Elections, Texas House of Representatives,
to Honorable John Cornyn, Texas Attorney General (Aug. 26, 2002) (on file with Opinion Committee) [hereinafter
Request Letter] _
The Honorable     Mary Denny      - Page 2         (GA-0035)




id. 9 571.124(a), and “may initiate a preliminary review” without a sworn complaint on the motion
of a commissioner, and by a vote of at least six commissioners. Id. 5 571.124(b). If the Commission
finds that there is “credible evidence . . . that a violation has occurred,” and cannot resolve the
matter, it shall “in its discretion . . . order an informal hearing” and not@ the complainant and
respondent in writing of the “date, time, and place of the informal hearing.” Id. 5 57 1.126(b). Such
a hearing may include all evidence related to the complaint, and “shall determine . . . whether
a violation within the jurisdiction” of the Commission has occurred. Id. $ 571.127(a)(5).         The
Commission is then charged with resolving the complaint, and if it cannot do so, with holding a
formal hearing.     See id. 8 571.128.     “In connection with an informal or a formal hearing, the
commission, as authorized by this chapter, may subpoena and examine witnesses and documents that
directly relate to a sworn complaint.” Id. 8 571.137(a).

         Section 57 1.140 provides in relevant part:

                          (a) Except as provided by Subsection (b), proceedings at a
                 preliminary review or informal hearing performed by the commission,
                 a sworn complaint, and documents and any additional evidence
                 relating to the processing, preliminary review, informal 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, except that a document or statement that was
                 previously public information remains public information.




                          (c) A person commits an offense if the person discloses
                 information made confidential by this section. An offense under this
                 subsection is a Class A misdemeanor.

Id. $571.140.

         As we understand the position taken by the Commission, it is that not only the contents, but
the existence of a sworn complaint is confidential; that, were its investigators to interview third-party
witnesses about the situation giving rise to a complaint, this questioning would reveal the existence
of such a complaint; and that, accordingly, in order to avoid running afoul of section 57 1.140, staff
may not interview third-party witnesses.*

        We do not believe that carefully tailored questions by a Commission          staff member
concerning the factual situation giving rise to a sworn complaint would necessarily violate section
571.140.




         2See Brief from Karen Lundquist, General Counsel, Texas Ethics Commission, to Honorable John Comyn,
Texas Attorney General, at 2 (Oct. 10, 2002) (on file with Opinion Committee) [hereinafter Commission BriefJ.
The Honorable    Mary Denny - Page 3             (GA-0035)




        One concern expressed by the Commission is that “[alny information related to a sworn
complaint, including the existence or nonexistence of a sworn complaint, is also confidential.”
Commission Brief, supra note 2, at 2. However, as your predecessor suggested in her request letter,
the Commission

                can fulfill its duty to investigate and interview 3rd party witnesses
                without necessarily breaching the confidentiality of a complaint. The
                TEC staff . . . can uphold the confidentiality of complaints and
                investigate thoroughly by asking witnesses appropriate questions that
                do not tell the witnesses the parties to the complaint or the nature of
                the complaint.

Request letter, supra note 1, at 2. In short, the mere fact that Commission staff asks a third-party
witness questions relating to a situation that gives rise to a sworn complaint would not necessarily
reveal the existence of a sworn complaint. While such a witness might infer that a complaint had
been made, such an inference is not necessarily correct. An investigation might have been instituted
under section 57 1.124(b) on the motion of a commissioner and the record votes of six commissioners.
Thus, staff questioning will not “by its very nature reveal the existence of the sworn complaint and
subject the staff to possible criminal and civil sanctions.” See Commission Brief, supra note 2, at 2.
Moreover, the statute specifically contemplates the questioning of witnesses in the context of formal
and informal hearings. See TEX. GOV’T CODE ANN. 9 571.137(a) (Vernon 1994).

         Certainly the Commission’s staff may and should exercise caution and discretion in any
questioning of third-party witnesses. But the mere propounding of questions to such witnesses
concerning the facts of a situation that has given rise to a sworn complaint is not a violation of section
57 1.140 of the Government Code.
The Honorable Mary Denny - Page 4           (GA-0035)




                                      SUMMARY

                        It is not a per se violation of section 57 1.140 of the
               Government Code for the staff of the Texas Ethics Commission to
               question third-party witnesses concerning a situation that has given
               rise to a sworn complaint.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
