According to attorneys involved in litigation against the agency, the Texas Ethics Commission agreed to an order today that will soon result in the commission being stripped of nearly all of its statutory authority.

“The TEC signed its own death warrant today,” said Trey Trainor, an attorney representing Empower Texans in litigation with the TEC. “In order to avoid giving depositions and paying twenty to thirty thousand dollars in attorneys’ fees, the agency has agreed to an order that will soon unravel all of its power.”

In Travis County District Court today, the Texas Ethics Commission responded to a motion filed by Empower Texans seeking an award of attorney’s fees under a state law that allows citizens to recover the fees when they are the subject of a frivolous enforcement action.

The TEC argued that the law, which is applicable to state agencies in the executive branch of government, did not apply because the commission is a part of the legislative branch. A district judge agreed and dismissed the fees motion.

But lawyers familiar with the case say the judge’s ruling will soon result in the TEC being stripped of all of the executive powers granted to it by state statute. In other words, the TEC as it operates today will soon cease to exist.

In 1991, voters created the Texas Ethics Commission, giving it the constitutional duty to set legislative salaries and per diem. The language creating the agency was placed in Article III, Section 24, of the Texas Constitution, a section dealing primarily with legislative salaries.

But the legislature subsequently adopted statutes granting the TEC executive powers to enforce state campaign finance and lobby laws.

The Texas Constitution in Article II enshrines the principle of separation of powers. Under that article, agencies in the legislative branch are prohibited from exercising executive powers, such as the enforcement and administration of state laws, unless those powers are expressly granted by the constitution.

The Court’s ruling that the TEC is, in fact, located in the legislative branch means that all statutes granting executive branch functions to the agency must be struck down. Functions such as enforcing state campaign finance and lobby laws will need to be relocated to the executive branch. One possible home is the Office of the Secretary of State, an executive branch office which housed the TEC’s predecessor, the Texas Ethics Advisory Commission.

Litigation in the Empower Texans case will continue and parts of Monday’s ruling will likely be taken up on appeal to the Austin Court of Appeals. However, if the courts are consistent in holding that the TEC is, in fact, a part of the legislative branch, then in about 18 months the TEC may soon be reduced to its constitutional functions of recommending legislative salary increases and setting the legislative per diem – restoring the constitutional rights of 27 million Texans.

That’s something for which every Texan can give a belated thanksgiving.

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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