Untitled Texas Attorney General Opinion: KP-0484

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 26, 2025

The Honorable Brian Birdwell
Chair, Senate Committee on Natural Resources
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. KP-0484

Re: Authority of the Texas Ethics Commission to toll its obligation under Government
Code § 571.1242(g) in circumstances beyond litigation (RQ-0568-KP)

Dear Senator Birdwell:

You ask whether the Texas Ethics Commission may “by rule, toll its obligation under
Government Code [subsection] 571.1242(g) in any circumstance other than litigation.” 1 You do
not, however, reference or ask us to determine the procedural validity of any specific rules. See
Request Letter at 1. We thus limit our analysis accordingly.

Chapter 571 of the Texas Government Code governs the Commission’s
responsibilities and rulemaking authority.

The Commission is a constitutionally created “state agency.” TEX. CONST. art. III, § 24a(a).
Relevant here, the Commission’s powers extend only to those that the “Texas Legislature has
expressly conferred upon it and those implied powers that are reasonably necessary to carry out its
statutory duties.” Tex. State Bd. of Exam’rs of Marriage & Fam. Therapists v. Tex. Med. Ass’n,
511 S.W.3d 28, 33 (Tex. 2017). An agency cannot “exercise what is effectively a new power, or a
power contradictory to the statute, on the theory that such a power is expedient for administrative
purposes.” Pub. Util. Comm’n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316
(Tex. 2001). It follows that the Commission’s exercise of rulemaking authority must be “in
harmony with the general objectives of the act involved” as discerned from the “plain text of the
statutes that grant or limit the agency’s authority.” Marriage & Fam. Therapists, 511 S.W.3d at
33 (citation omitted). But there is no such harmony if a rule: “(1) contravenes specific statutory
language; (2) runs counter to the general objectives of the statute; or (3) imposes additional

1
Letter from Hon. Brian Birdwell, Chair, S. Comm. on Nat. Res. & Econ. Dev., to Hon. Ken Paxton, Tex.
Att’y Gen. at 1 (Oct. 30, 2024), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2024/
RQ0568KP.pdf (“Request Letter”).
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burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory
provisions.” Id.

Here, Chapter 571 of the Texas Government Code generally directs the Commission to
“administer and enforce” various aspects of the Government Code, Local Government Code, and
Election Code, TEX. GOV’T CODE § 571.061(a), and details a complaint process for alleged
violations under that rubric, id. §§ 571.121–.142. This framework governs everything from
receiving and processing complaints to the conduct of preliminary reviews, preliminary review
hearings, and formal hearings. Id. §§ 571.122–.132. With that in mind, the Commission is
expressly empowered to “adopt rules to administer” Chapter 571 or “any other law administered
and enforced by the [C]ommission.” Id. § 571.062(a).

The complaint process begins upon the filing of a sworn complaint or on a motion “adopted
by an affirmative vote of at least six [C]ommission members.” 2 Id. §§ 571.122(a), .124(b); see
also id. § 571.124(a) (explaining that a sworn third-party complaint must comply with form
requirements to be subject to preliminary review). The Commission must then “send written notice
to the complainant and the respondent,” 3 id. § 571.123(b), and the respondent’s timeline for
responding to that notice depends on the classification of an alleged violation, id. § 571.1242(a)–
(b); see also id. § 571.1211(2)–(3) (defining violation types). During preliminary review, the
Commission’s staff may submit “written questions” to the complainant or respondent and
subpoena documents and witnesses if certain requirements are met. Id. §§ 571.1242(f), .137(a-1).

Subsection 571.1242(g) directs that “[n]ot later than the 120th day after the later of the date
the [C]ommission receives a respondent’s response to notice . . . or the respondent’s response to
written questions,” the Commission must “propose an agreement to the respondent to settle the
complaint without holding a preliminary hearing” or “dismiss the complaint.” 4 Id. § 571.1242(g).
Subsection 571.1242(h) further explains that this deadline is “tolled for the duration of any
litigation brought by the respondent or the [C]ommission regarding the complaint at issue.” Id.
§ 571.1242(h).

Only one other provision expressly references tolling—specifically, the tolling of
preliminary review deadlines. See id. § 571.1244 (“Preliminary Review and Preliminary Review
Procedures”). Section 571.1244 requires the Commission to “adopt procedures for the conduct of

2
A preliminary review initiated on motion of the Commission itself is deemed “a complaint for purposes of
all further proceedings under [C]hapter 571 of the Government Code.” 1 TEX. ADMIN. CODE § 12.15(b).
3
A “respondent” is “a person who is alleged to have committed a violation of a rule adopted by or a law
administered and enforced by the [C]ommission.” TEX. GOV’T CODE § 571.002(4).
4
We are aware of bills pending before the Eighty-ninth Legislature that would amend or implicate various
provisions in Chapter 571 as well as the laws the Commission administers and enforces. See, e.g., Tex. H.B. 1034,
89th Leg., R.S. (2025); Tex. H.B. 755, 89th Leg., R.S. (2025). One bill, for example, reduces the time period and
removes a triggering event for subsection 571.1242(g)’s deadline. See Tex. S.B. 139, 89th Leg., R.S. (2025). But none
of these bills, as filed, change our analysis of the Commission’s tolling authority.
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preliminary reviews and preliminary review hearings.” Id. These procedures must provide for
“tolling or extension of otherwise applicable deadlines” in two scenarios:

(A) [when] the [C]ommission issues a subpoena and the
[C]ommission’s meeting schedule makes it impossible both
to provide a reasonable time for response and to comply with
the otherwise applicable deadlines; or

(B) [when] the [C]ommission determines that, despite
[C]ommission staff’s diligence and the reasonable
cooperation of the respondent, a matter is too complex to
resolve within the otherwise applicable deadlines without
compromising either the [C]ommission staff’s investigation
or the rights of the respondent.

Id. § 571.1244(2).

A rule that purports to “toll” the Commission’s 120-day jurisdictional mandate for
reasons beyond litigation would conflict with the plain text of this statutory
framework and run counter to the general objectives of the same.

Whether the Commission may toll the 120-day deadline for reasons beyond litigation
reduces principally to a question of statutory interpretation. We therefore “start with [Chapter
571’s] text and the plain meaning of its words construed within the statute as a whole.” Sunstate
Equip. Co. v. Hegar, 601 S.W.3d 685, 690 (Tex. 2020). In doing so, we presume the Legislature
chose the statutory language “deliberately and purposefully” and read the greater statutory
framework so that no part is “inconsistent, superfluous, or devoid of meaning.” Levinson Alcoser
Assocs., L.P. v. El Pistolón II, Ltd., 513 S.W.3d 487, 493 (Tex. 2017) (quoting Crosstex Energy
Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014)); see also, e.g., In re Mem’l
Hermann Hosp. Sys., 464 S.W.3d 686, 716 (Tex. 2015) (orig. proceeding) (explaining when two
provisions overlap, we should “[t]o the extent possible[] . . . construe the[m] . . . in a way that
harmonizes rather than conflicts”). Moreover, when terms are undefined, we presume the
Legislature “meant to use the ordinary meaning of a word, with each term ‘interpreted consistently
in every part of [the] act.’” Sunstate Equip. Co., 601 S.W.3d at 690 (alteration in original) (quoting
Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)).

The Commission possesses general rulemaking authority to “adopt rules to administer”
Chapter 571. TEX. GOV’T CODE § 571.062(a). The term “administer” ordinarily refers to actions
taken “to manage or supervise the execution, use, or conduct.” See, e.g., MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 15 (10th ed. 1993); see also, e.g., BLACK’S LAW DICTIONARY 44
(Deluxe 6th ed. 1990) (defining “administer” as “[t]o manage or conduct”). This is consistent with
the Government Code’s limited directive that the Commission exercise its rulemaking authority to
promulgate “procedures for the conduct of preliminary reviews and preliminary review hearings,”
TEX. GOV’T CODE § 571.1244 (emphasis added), which “must include” procedures related to
“tolling or extension of otherwise applicable deadlines” in two limited circumstances, id.
§ 571.1244(2). Indeed, the root term “procedure” is commonly understood to involve the “manner
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of proceeding” or “a way of performing or effecting something.” THE AMERICAN HERITAGE
COLLEGE DICTIONARY 1110 (4th ed. 2002); see also, e.g., BLACK’S LAW DICTIONARY 1221 (7th
ed. 1999) (defining “procedure” to mean “[a] specific method or course of action”). Subsection
571.1244(2) therefore speaks to the Commission’s regulatory obligation to detail how it will
exercise power over cases already within its jurisdiction. TEX. GOV’T CODE § 571.1244(2); see
also id. § 571.124(c) (noting the executive director will, before initiating preliminary review,
initially determine whether the Commission has jurisdiction).

Subsection 571.1242(g), on the other hand, plainly limits the Commission’s jurisdiction.
That subsection requires the Commission to either offer settlement “without holding a preliminary
hearing” or dismiss a complaint within 120 days of a response to the underlying notice or written
questions. Id. § 571.1242(g). The Government Code also specifies that dismissal requires the
Commission to “deny jurisdiction over any subsequent complaint against the respondent that
alleges the respondent violated the same statutes or rules based on the same facts alleged in the
dismissed complaint.” Id. § 571.1242(j). Jurisdiction, of course, concerns the authority over an
allegation—not how that authority is exercised. See, e.g., MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 679 (11th ed. 2020) (defining “jurisdiction” to include “the power or right to exercise
authority”).

The unambiguous dichotomy between the Commission’s jurisdictional deadline and its
procedural authority within that jurisdiction is likewise reflected in the “general objectives” of this
framework. See Marriage & Fam. Therapists, 511 S.W.3d at 33 (explaining that a rule will prove
facially invalid if it “runs counter to the general objectives of the statute”). Subchapter E of
Chapter 571 provides a system that “protect[s] the constitutional right of the governed to apply . . .
for the redress of grievances” and is intended to encourage “the public’s confidence and trust in
its government” as well as “prohibit[] undue influence” over elections and governmental actions.
TEX. GOV’T CODE § 571.001. To this end, the Legislature imposed a multi-stage framework that
allows for prompt investigation and resolution during preliminary review, see id. §§ 571.124–
.1242, which necessarily precedes the hearings that may follow, see id. §§ 571.125–.132.

History counsels similarly. The Commission’s enabling legislation in 1991 did not have a
deadline for preliminary review like that in the modern iteration of subsection 571.1242(g). See
Act of May 27, 1991, 72d Leg., R.S., ch. 305, §§ 1.17–.18, 1991 Tex. Gen. Laws 1290, 1295–96.
But “[o]f the 238 sworn complaints filed in calendar years 1998 through 2000, 81 took more than
180 days to resolve, 58 took more than a year to resolve, and 20 remain[ed] unresolved” by 2002.
SUNSET ADVISORY COMM’N, STAFF REPORT: TEXAS ETHICS COMMISSION 20 (Mar. 2002). The
Legislature thus responded in 2003 with new deadlines that required the Commission to set a
matter for preliminary review hearing if left unresolved by agreement within a specified window
of time. Act of June 2, 2003, 78th Leg., R.S., ch. 249, § 1.19, 2003 Tex. Gen. Laws 1123, 1129–
30. Yet the Commission was “not following” that mandate by 2019, S. Rsch. Ctr., Bill Analysis,
Tex. S.B. 548, 86th Leg., R.S. (2019), and a stricter legislative directive followed: The 120-day
jurisdictional deadline that governs today. TEX. GOV’T CODE § 571.1242(g), (j). This statutory
backdrop confirms what is otherwise apparent in both the unambiguous text of the 120-day
deadline and the greater legislative framework itself, which together expedite the complaint
process and limit the Commission’s regulatory authority to toll or extend procedural deadlines
over complaints within its jurisdiction.
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At bottom, the Government Code does not countenance a rule that purports to toll the
Commission’s jurisdictional deadline for reasons other than litigation. Both the plain text of
subsections 571.062(a), .1242(g), .1244(2) and the “general objectives” of the greater statutory
framework collectively reveal that the Commission possesses authority to promulgate procedural
rules governing the exercise—not the existence of—its limited jurisdiction. As such, the
Commission cannot promulgate rules that toll its jurisdictional deadline for reasons unrelated to
litigation or otherwise disturb the Legislature’s express efforts to streamline the complaint process
such that the Commission’s failure to timely offer settlement during preliminary review results in
a complete loss of jurisdiction over the allegations in an underlying complaint. See, e.g., Marriage
& Fam. Therapists, 511 S.W.3d at 33.

The Commission’s exercise of regulatory authority proves inconsistent even with its
own reading of the Government Code.

It merits additional note that, even under the Commission’s own reading of these statutes, 5
its exercise of rulemaking authority is facially flawed. The Commission points us to two rules that
expressly toll the 120-day jurisdictional deadline. 6 The first provides that the 120-day deadline is
tolled “beginning on the date the [C]ommission sends the written questions and resets on the date
the [C]ommission receives the respondent’s written response.” 1 TEX. ADMIN. CODE § 12.22(b).
The second rule also provides that this statutory mandate is tolled when the Commission’s staff
applies for a subpoena, “reset[ting]” the statutory deadline on:

(1) the date the [C]ommission rejects the staff’s application for a
subpoena;

(2) the date the person to whom the subpoena is directed complies
with the subpoena; or

(3) the date the [C]ommission receives a final ruling on a person’s
failure or refusal to comply with a subpoena that is reported to a
district court pursuant to section 571.137(c) of the Government
Code.

5
Texas courts typically give “serious consideration” to an agency’s interpretation of a statute it enforces “so
long as the construction is reasonable and does not conflict with the statute’s language.” R.R. Comm’n v. Tex. Citizens
for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). But no such deference is implicated here because,
as previously explained, the statutes at issue are unambiguous and the Commission’s rules conflict with that
unambiguous text. See, e.g., Brazos Elec. Power Coop., Inc. v. Tex. Comm’n on Env’t Quality, 576 S.W.3d 374, 384
(Tex. 2019). Furthermore, while the Texas Supreme Court never expressly adopted the “agency-deference doctrines
employed by federal courts,” Sirius XM Radio, Inc. v. Hegar, 643 S.W.3d 402, 407 (Tex. 2022), Texas’ standards
bear “roots in federal jurisprudence,” Tex. Att’y Gen. Op. No. KP-0115 (2016) at 1. It therefore remains to be seen
whether Chevron’s recent demise portends a change in Texas law. See Loper Bright Enterprises v. Raimondo, 603
U.S. 369, 412 (2024) (overruling Chevron). In any event, we need not undertake any such analysis here.
6
Brief from J.R. Johnson, Exec. Dir. Tex. Ethics Comm’n, to Hon. Ken Paxton, Tex. Att’y Gen. at 2–3 (Nov.
26, 2024) (“Commission Brief”) (on file with the Op. Comm.).
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Id. § 12.23(d). Ultimately, the Commission suggests both rules are “valid exercises of [its] general
rulemaking authority” and “satisfy the directive of section 571.1244.” Commission Brief at 2–3.

We disagree. Though the Commission does not acknowledge the unambiguous dichotomy
detailed earlier, see supra discussion pp. 3–5, it remains that a rule tolling the 120-day deadline
for reasons other than litigation could never alter the limited circumstances in which procedural
tolling is expressly contemplated under subsection 571.1244(2). Rule 12.23(d) nonetheless
purports to toll the 120-day deadline before the Commission “issues a subpoena,” without regard
to whether the Commission’s “meeting schedule makes it impossible both to provide a reasonable
time for response and to comply with the otherwise applicable deadlines.” Contra TEX. GOV’T
CODE § 571.1244(2)(A). This conflict with the Commission’s purported source of authority is
fatal. See, e.g., Marriage & Fam. Therapists, 511 S.W.3d at 33.

Neither can the Commission promulgate a rule that purports to toll the 120-day deadline
by starting over that timeframe—contrary to the ordinary meaning of “tolling” itself. Contra 1
TEX. ADMIN. CODE §§ 12.22(b), .23(d). In its verb form, “toll” is commonly understood to mean
“to stop the running of” or “abate” a particular “time period, esp[ecially] a statutory one.” BLACK’S
LAW DICTIONARY 1495 (7th ed. 1999). “Tolling” authority therefore implicates a triggering event
that temporarily halts the 120-day deadline; to toll is not to start anew. 7 Cf., e.g., MERRIAM-
WEBSTER’S COLLEGIATE DICTIONARY 1059 (11th ed. 2020) (defining “reset” as “to set again or
anew” and “to change the reading of often to zero”). Any other reading renders the Legislature’s
120-day deadline meaningless. Contra Sunstate Equip. Co., 601 S.W.3d at 690; Levinson, 513
S.W.3d at 493.

We thus conclude that, even under the Commission’s own reading of its enabling statutes,
it cannot “administer” Chapter 571 by expanding the bases on which the 120-day deadline could
be tolled while redefining “tolling” in the process. See, e.g., Marriage & Fam. Therapists, 511
S.W.3d at 33. As such, the Commission has no authority to toll its deadline outside of litigation.

7
To be sure, the Government Code provides alternative dates on which the 120-day deadline begins—either
once the Commission “receives a respondent’s response to notice . . . or the respondent’s response to written
questions.” TEX. GOV’T CODE § 571.1242(g). But this has no bearing on the Commission’s “tolling” authority, which
pertains to a timeline that has begun.
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S U M M A R Y

Subsection 571.1242(g) of the Government Code
unambiguously imposes a jurisdictional deadline by which the
Texas Ethics Commission must take specified action on a complaint.
Subsection 571.1244(2), on the other hand, concerns procedures for
preliminary reviews and unambiguously pertains to procedural
deadlines—not the Commission’s jurisdiction. This is likewise
confirmed by the general objectives of the Commission’s enabling
framework, which aims to streamline the complaint process such
that the Commission’s failure to timely resolve claims during
preliminary review results in a loss of jurisdiction over the
underlying allegations. As such, the Commission may not toll its
jurisdictional deadline outside of litigation.

Rules that provide otherwise are facially invalid insofar as
they conflict with both the plain text and general objectives of the
Commission’s enabling framework.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

JOSHUA C. FIVESON
Chair, Opinion Committee

AMANDA K. ROMENESKO
Assistant Attorney General, Opinion Committee