Better late than never. After ignoring a statutory mandate to adopt rules governing its formal hearing process for 25 years, the Texas Ethics Commission on Wednesday finally approved a package of procedures mimicking those at the State Office of Administrative Hearings.

But top officials were repeatedly dismissive of criticism from lawyers who represent clients before the agency that the new rules don’t fit the TEC, which is frequently run by non-lawyers and has been ranked the least transparent ethics agency in the nation.

TEC Chairman Steve Wolens, a former Democrat state legislator from Dallas, excused the flaws in the new rules package, pointing to respondents’ right to a “de novo review” in court. “It doesn’t really count at the end of the day,” Wolens said about the commission’s proceedings. “It doesn’t matter.”

De novo review means that Texans accused of violating state campaign and lobby laws by the TEC are supposed to be afforded a full do-over, in a real court, with real rules of evidence and procedure after the commission completes its internal process.

Except that never happens. Wolens’ posture towards their proceedings might be fine, but for the fact that Texans have never been allowed to have the type of appeal he invokes as a defense to the flaws in the commission’s process.

That’s because the TEC’s lawyers play procedural games to prevent any real review of its decisions in court.

In the entire history of the TEC, the ethics commission’s lawyers have never allowed a court, and certainly no jury, to conduct a substantive review of its accusations against any citizen. When faced with judicial accountability for its decisions, the TEC has repeatedly acted to moot the cases in order to strip the courts of jurisdiction. Elsewhere, the commission has sought to turn the de novo review process on its head, arguing they should not be subject to the same rules as other litigants.

Moreover, the TEC has repeatedly asked the legislature to abolish de novo appeals altogether. This time around, TEC staff are asking to limit respondents’ defenses and to be allowed to violate the rules of evidence by giving an instruction to the jury on the commission’s findings in order to bias their deliberations. That’s not much better than no review at all.

At the TEC, the process is the punishment. Citizens accused of tripping over the state’s indecipherable campaign laws—the accusations are almost always leveled by an unethical political opponent—are forced to travel to Austin, hire lawyers, and be subjected to a closed-door inquisition, usually over some inane paperwork violation. And the proceedings frequently drag on for two or three years before there is any resolution.

In a 2013 interview, former TEC Chairman Paul Hobby, who left the commission to try his hand at running Texas Monthly, acknowledged the abusive effects TEC proceedings have on citizens who get dragged in front of it.

You ought to see these people who leave our meetings in tears, these sweet, simple people who missed a box, missed a deadline. They get a letter [from the Ethics Commission] and they can’t sleep at night, they hire a lawyer they can’t afford. There’s no moral sanction here, they’re not convicted felons. But these people swear, they promise, ‘I’ll never participate in the process again.’

In other words, the TEC’s abusive process has a chilling effect on the free speech of everyday Texans who simply choose to be engaged in their communities. Yet neither Hobby nor any of the other commissioners have seemed interested in ending their reign of terror.

At the root of the problem is the ethics commission’s makeup. It was created as a department of the legislature in 1991 by voters in order to take the task of setting salaries and per diems out of the hands of legislators. It is composed of appointees from the House and Senate, split 50-50 on a bipartisan basis, with final approval of the Governor of half of the appointments. Historically, the appointees have largely been made up of retired legislators and failed candidates.

But in 1993, the legislature decided to give its TEC appointees the distinctly executive task of investigating and prosecuting “ethics” complaints. And not just complaints against them—the agency hears complaints against citizens from Dallas to Del Rio; from Midland to Mineola. The hearings are always in Austin, and almost all of them are behind closed doors.

The TEC investigates and prosecutes Texans in clear violation of Article II of the Texas Constitution, which prohibits legislative branch agencies from wielding executive power.

Giving executive functions to legislative appointees has had predictable results. Those legislators who cozy up to legislative leadership in Austin—and the lobbyists who fund them—have been able to routinely get away with slaps on the wrist.

For instance, the “aerospace caucus” of the legislature was given a waiver of fines on Wednesday after it failed to file a required report for the fourth time in five years. In the meantime, the TEC has doggedly pursued cases against conservative organizations like Empower Texans, Texas Right to Life, and the Texas Homeschool Coalition, and routinely fines citizens for failing to file reports even minutes after the deadline.

It’s past time for the Texas Ethics Commission to have its wings clipped. The courts and the legislature need to transfer its executive functions—those that are worth continuing—to a body that is accountable to the voters. The Texas Constitution demands no less.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


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