Can a Texas legislator obtain confidential Ethics Commission sworn-complaint files using the Public Information Act's legislative-access provision?

Plain-English summary

The Executive Director of the Texas Ethics Commission asked the Attorney General whether the Commission may give a legislator confidential sworn-complaint information when the legislator requests it under Government Code section 552.008, the provision of the Public Information Act that lets legislators obtain governmental information for legislative purposes. The question sits at the intersection of two statutes: Chapter 571, which governs the Ethics Commission and keeps sworn-complaint files confidential, and Chapter 552, the Public Information Act.

The AG explained that section 552.008 does give legislators a "special right of access" that can reach some confidential information, and a Texas appeals court (in Texas Commission on Environmental Quality v. Abbott) read that right broadly, holding it could cover documents that are confidential or privileged under other law. But the AG stressed the court did not treat the legislator's access as absolute. In Abbott, the records were confidential under other law, yet no statute had pulled them out of the Public Information Act entirely.

The sworn-complaint records are different. Section 571.139(a) says Chapter 552 "does not apply" to documents and additional evidence relating to the processing, preliminary review, or resolution of a sworn complaint. The AG read that plain language to mean those records are outside the Public Information Act in the first place. And because section 552.008 is just one section within Chapter 552, a statute that switches off the whole chapter also switches off section 552.008 for that information. So a court giving effect to the plain text would likely conclude the Commission may not release confidential sworn-complaint information to a legislator under section 552.008.

The AG added a separate observation about constitutional limits. Even where section 552.008 does apply, a request can run into the Texas Constitution's separation of powers when it targets an agency or officer whose powers come from the Constitution itself (the attorney general, for example). In Abbott that argument failed because the TCEQ is a statutory agency with no constitutional power, but the AG flagged that the analysis could come out differently for a constitutionally grounded officer. That point was not necessary to the answer here, but it underscores that section 552.008 is not unlimited.

What this means for you

If you work at the Texas Ethics Commission or handle its records

Based on this opinion, sworn-complaint information that section 571.139(a) places outside the Public Information Act stays confidential even when a legislator asks for it under section 552.008. The AG concluded the Commission may not release it on that basis. The opinion also notes that releasing information made confidential by section 571.140 can be an offense (section 571.140(c)) and that improper release under the Public Information Act can carry criminal penalties and count as official misconduct (section 552.352).

If you are a legislator or legislative staffer seeking records

The opinion treats the legislative right of access in section 552.008 as real but bounded. It reaches information that is confidential under other law yet still within the Public Information Act, as in Abbott. It does not reach a category of records that a separate statute expressly removes from the Act, like Ethics Commission sworn-complaint files under section 571.139(a).

If you advise an agency on responding to legislator requests

The opinion's method is worth noting: first ask whether any statute says the Public Information Act "does not apply" to the records, because that ends the section 552.008 analysis before it starts. The AG also points to a possible separation-of-powers defense for an agency or officer whose authority derives from the Texas Constitution, citing the Abbott court's two-step inquiry.

Common questions

Q: Can a legislator force the Ethics Commission to hand over confidential complaint files?
A: Based on this opinion, no. The AG concluded section 571.139(a) removes sworn-complaint records from the Public Information Act, so the legislative-access provision in section 552.008 does not reach them.

Q: Doesn't section 552.008 let legislators see confidential information?
A: It can reach some confidential information that is still within the Public Information Act, as the Abbott case showed. But the AG concluded it cannot reach records that another statute places entirely outside the Act.

Q: What makes the sworn-complaint records different from the records in the Abbott case?
A: In Abbott, the documents were confidential under other law but had not been removed from the Public Information Act. Here, section 571.139(a) says Chapter 552 "does not apply" to the sworn-complaint records, which the AG read as taking them out of the Act altogether.

Q: Are there penalties for releasing this information?
A: The opinion notes that disclosing information made confidential under section 571.140 is an offense (section 571.140(c)), and that improper release of confidential information obtained under section 552.008 can result in criminal penalties and constitute official misconduct (section 552.352).

Q: Does this mean section 552.008 never reaches confidential records?
A: No. The AG described section 552.008 as a genuine but non-absolute right. It can reach confidential records that remain within the Public Information Act, and it can also run into separation-of-powers limits when aimed at a constitutionally grounded officer or agency.

Background and statutory framework

Chapter 571 of the Government Code governs the Texas Ethics Commission and lets individuals file sworn complaints alleging violations of laws the Commission enforces (Tex. Gov't Code §§ 571.061, 571.122(a)). Under the Government Code, section 571.031 makes the Public Information Act apply to Commission records "[e]xcept as provided by Sections 571.139(a) and 571.140." Section 571.140(a) makes sworn complaints and related documents confidential, and section 571.139(a) goes further, stating that Chapter 552 "does not apply" to documents and additional evidence relating to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint.

The Public Information Act (Chapter 552) gives the public a right to request public information, and section 552.008 carves out a special legislative right: a governmental body must provide public information, including confidential information, to a legislator who requests it for legislative purposes, subject to a possible confidentiality agreement. The Third Court of Appeals in Texas Commission on Environmental Quality v. Abbott, 311 S.W.3d 663 (Tex. App.—Austin 2010, pet. denied), read "confidential information" in section 552.008 to include attorney-client and work-product privileged material and information confidential under other law, comparing the provision to the federal Freedom of Information Act's reservation of a congressional right of access. But the court did not make the legislative right absolute, and Open Records Division letter rulings since Abbott have both applied it and, in other contexts, declined to require release where another statute controls.

Applying ordinary statutory construction (citing Hegar v. Health Care Serv. Corp., 652 S.W.3d 39 (Tex. 2022), and Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551 (Tex. 2022)), the AG concluded section 571.139(a)'s "does not apply" language takes sworn-complaint records out of Chapter 552 entirely, so section 552.008, a section within Chapter 552, cannot compel their release. The AG also discussed the separation-of-powers limits recognized in Abbott under Texas Constitution article II, section 1, and the attorney general's constitutional duties under article IV, section 22.

Citations and references

Statutes:

• Tex. Gov't Code § 571.139 — Public Information Act does not apply to sworn-complaint records
• Tex. Gov't Code § 571.140 — confidentiality of sworn-complaint proceedings
• Tex. Gov't Code § 552.008 — legislator's special right of access

Key cases:

• Tex. Comm'n on Env't Quality v. Abbott, 311 S.W.3d 663 (Tex. App.—Austin 2010) — scope of the legislative right of access under section 552.008
• Hous. Indep. Sch. Dist. v. Hous. Chron. Pub. Co., 798 S.W.2d 580 (Tex. App.—Houston [1st Dist.] 1990) — weight given to attorney general open-records decisions

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0465
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2024/kp-0465.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 17, 2024

Mr. J.R. Johnson
Executive Director
Texas Ethics Commission
Post Office Box 12070
Austin, Texas 78711-2070

Opinion No. KP-0465

Re: Authority of the Texas Ethics Commission to release sworn complaint information, confidential under Texas Government Code chapter 571, to a member of the Legislature for a legislative purpose (RQ-0519-KP)

Dear Mr. Johnson:

You ask whether the Texas Ethics Commission ("Commission") "may release confidential sworn complaint information that is exempted from the Public Information Act upon request from an individual member of the Legislature" pursuant to Government Code section 552.008, or other law.¹ Your question implicates two chapters in the Government Code: chapter 571, which governs the Commission, and chapter 552, which contains the Public Information Act.²

Government Code chapter 571 protects sworn complaint information filed with the Texas Ethics Commission.

Contained within Title 5 of the Government Code pertaining to open government and ethics, chapter 571 governs the Commission. See generally TEX. GOV'T CODE §§ 571.001–.177. Chapter 571 charges the Commission with administering and enforcing specific chapters of the Government Code, the Local Government Code, and the Election Code. See id. § 571.061. Chapter 571 authorizes an individual to 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). Additionally, it directs the Commission in the processing, preliminary review, dismissal, hearing, and appeal of an allegation raised by a sworn complaint. See id. §§ 571.121–.142 ("Subchapter E. Complaint Procedures and Hearings").

Chapter 571 also generally provides that the Public Information Act applies to all records of the Commission "[e]xcept as provided by Sections 571.139(a) and 571.140." Id. § 571.031; see also Request Letter at 1–2 (referring us to subsection 571.139(a) and section 571.140). The first of the referenced exceptions, section 571.139, generally governs the applicability of other laws. TEX. GOV'T CODE § 571.139. Relevant here, subsection 571.139(a) expressly states that "[e]xcept as provided by Section 571.140(b), Chapter 552 does not apply to documents or any additional evidence relating to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint or motion."³ Id. § 571.139(a) (emphasis added). Thus, the documents and additional evidence enumerated in subsection 571.139(a) are expressly excluded from the scope of the Public Information Act.

The second exception, section 571.140, pertains to the confidentiality of proceedings and documents as a general matter. Id. § 571.140. Subsection 571.140(a) provides that,

[e]xcept as provided by Subsection (b) or (b-1) or by Section 571.171,⁴ . . . 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, except that a document or statement that was previously public information remains public information.

Id. § 571.140(a) (footnote added). By its plain language, subsection 571.140(a) expressly makes a sworn complaint and documents and evidence related to its resolution confidential.⁵

Government Code chapter 552, the Public Information Act, generally grants a Legislator a special right of access to public information under section 552.008.

Government Code chapter 552 is the Public Information Act. See generally id. §§ 552.001–.376. As a general matter, it gives the public the right to request access to public information. See id. §§ 552.001, .021, .022. One of its provisions, section 552.008, provides in relevant part that:

(a) This chapter does not grant authority to withhold information from individual members, agencies, or committees of the legislature to use for legislative purposes.

(b) A governmental body on request by an individual member, agency, or committee of the legislature shall provide public information, including confidential information, to the requesting member, agency, or committee for inspection or duplication in accordance with this chapter if the requesting member, agency, or committee states that the public information is requested under this chapter for legislative purposes. A governmental body, by providing public information under this section that is confidential or otherwise excepted from required disclosure under law, does not waive or affect the confidentiality of the information for purposes of state or federal law or waive the right to assert exceptions to required disclosure of the information in the future. The governmental body may require the requesting individual member of the legislature, the requesting legislative agency or committee, or the members or employees of the requesting entity who will view or handle information that is received under this section and that is confidential under law to sign a confidentiality agreement that covers the information and requires that:

....

Id. § 552.008 (emphases added).

A Texas appellate court has considered the scope of section 552.008 as against information made confidential by law but not expressly excluded from the scope of the Public Information Act. Tex. Comm'n on Env't Quality v. Abbott, 311 S.W.3d 663, 668–71 (Tex. App.—Austin 2010, pet. denied). The case involved a request for information by Senator Eliot Shapleigh to the Texas Commission on Environmental Quality ("TCEQ"). Id. at 666. Relying on provisions in the Public Information Act, the TCEQ "declined to disclose certain documents that it deemed privileged attorney-client communications and attorney work product." Id. at 667. The state district court determined that section 552.008 required the TCEQ to disclose the confidential and privileged documents to the Senator. Id. at 666. In affirming that decision, the Third Court of Appeals concluded that the phrase "confidential information" in section 552.008 included documents protected by attorney-client or attorney work-product privileges.⁶ Id. at 670. The court stated further that the phrase also included information "that is excepted from required disclosure" or "confidential under other law." Id. (quotation mark omitted). It supported this conclusion by comparing section 552.008 and subsection 552.008(d) of the federal Freedom of Information Act, observing that in the latter "Congress reserved unto itself a special right of access to governmental information." Id. at 670–71. The court found it clear "that the Texas Legislature, like Congress, intended to maintain for itself a special right of access to confidential governmental information necessary to fulfill its legislative function . . . ." Id. at 671. But under the facts of the case the documents, while confidential under other law, were not also expressly excluded from the scope of the Public Information Act by another statute. Thus, we do not read Texas Commission on Environmental Quality v. Abbott to stand for the proposition that a Legislator's access under section 552.008 is absolute.

Though open letter rulings issued by our office are not binding, they are useful in understanding the operation of the Public Information Act. See Hous. Indep. Sch. Dist. v. Hous. Chron. Pub. Co., 798 S.W.2d 580, 588 (Tex. App.—Houston [1st Dist.] 1990, writ denied) ("Open records decisions of the Attorney General should be given 'great weight' by the courts of this state, but are not binding on them."); see also TEX. GOV'T CODE § 552.301 (authorizing a governmental body to ask the attorney general about whether requested public information can be withheld under an exception to the Public Information Act). Letter rulings from the Open Records Division ("ORD") of our office subsequent to Texas Commission on Environmental Quality v. Abbott rely on the opinion to conclude that a governmental body must give information to a Legislator requesting information under section 552.008 even if that information is confidential. See, e.g., Tex. Att'y Gen. OR2016-16919 at 5 (concluding that information made confidential by Government Code section 531.071 must be made available to a Legislator under section 552.008). But those letter rulings similarly do not construe section 552.008 to be absolute as there are instances where the ORD prohibits release of information to a Legislator based on language in another statute. See, e.g., Tex. Att'y Gen. OR2023-01880 at 3 (construing Occupations Code section 154.055, which provides access to information "[o]n request from a legislative committee," against section 552.008 and concluding that the Legislator requesting access under section 552.008 could not obtain the requested information).

A Legislator's special right of access under Government Code section 552.008 does not apply to items expressly excluded from the Public Information Act.

That said, as we consider the operation of section 552.008 against the provisions in chapter 571, we are mindful that the goal of statutory construction is to ascertain the Legislature's intent. Hegar v. Health Care Serv. Corp., 652 S.W.3d 39, 43 (Tex. 2022) (stating that a court's objective in construing statutes is to "ascertain and give effect to the Legislature's intent" (quoting In re D.S., 602 S.W.3d 504, 514 (Tex. 2020))). And "the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on." Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551, 557 (Tex. 2022) (quoting Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006)).

Subsection 571.140(a) expressly makes sworn complaint information confidential. TEX. GOV'T CODE § 571.140(a). Without more, we expect that a court would follow the reasoning in Texas Commission on Environmental Quality v. Abbott to conclude that confidential sworn complaint information is within the scope of section 552.008 and thus subject to disclosure when requested by a Legislator.

Yet, here there is more. Subsection 571.139(a) expressly states that chapter 552 "does not apply to documents or any additional evidence relating to the . . . resolution of a sworn complaint . . . ." Id. § 571.139(a) (emphasis added); see also id. § 571.031 (providing that the Public Information Act applies to all records of the Commission "[e]xcept as provided by Sections 571.139(a) and 571.140"). By its plain language, subsection 571.139(a) means that the information enumerated therein is not subject to chapter 552 in the first place. Id. § 571.139(a); cf., e.g., Tex. Att'y Gen. OR2007-04422 at 1 (recognizing that Parks and Wildlife Code subsection 11.030(b)'s language that "Chapter 552 . . . does not apply" to certain information obviated the need to consider whether the information could be withheld under section 552.101, which generally protects confidential information from disclosure). As section 552.008 is a section within chapter 552, the effect of subsection 571.139(a) is that sworn complaint information is not subject to section 552.008. See generally Tex. Att'y Gen. OR2022-11436 at 1–2 (recognizing that subsection 571.139(a) expressly excludes information relating to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint from the Public Information Act).

For these reasons, a court would likely conclude that the Commission may not release confidential sworn complaint information that is expressly exempt from the Public Information Act to a Legislator pursuant to a request under section 552.008.

Section 552.008 implicates the Texas Constitution's separation-of-powers doctrine.

Though not directly applicable here, we note there are constitutional limitations on section 552.008 that may occur in other circumstances. In Abbott, the TCEQ had also argued that the Legislator's request under section 552.008 violated the Texas Constitution's separation of powers. Abbott, 311 S.W.3d at 671; see also TEX. CONST. art. II, § 1 ("The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy."). The court engaged in a two-part inquiry, which first involved the scope of the constitutionally assigned powers to the agency and then involved the impact on the exercise of those powers if the information was released to the legislative branch. Abbott, 311 S.W.3d at 672–73. In Abbott, the court dispositively concluded in the first part of the inquiry that the TCEQ, as a state agency created by statute, derived no power from the Texas Constitution and thus "there can be no separation of powers violation" from the use of section 552.008 by the Legislator to procure information from the TCEQ. Id. at 674.

Yet, for another agency or state officer whose duties and power did come from the Constitution the second aspect of that analysis would consider the impact of the exercise of those powers if the information was released to the legislative branch. For instance, the court in Abbott recognized that the attorney general derives power from the Texas Constitution. Id. ("Unlike the attorney general, the [TCEQ] derives no specific power from the Texas Constitution."). Among other constitutional duties, the attorney general is authorized to represent the State in actions in which the State is interested and to give legal advice to the governor and other executive officers. See TEX. CONST. art. IV, § 22. And release of certain information to a legislator under section 552.008 potentially unduly interferes in the attorney general's exercise of those constitutionally assigned powers. See Tex. Att'y Gen. OR2024-004448 at 2 (recognizing the chilling effect that release of information protected by the attorney-client privilege to legislators under section 552.008 would have on the "free flow of ideas, frank communications, and robust deliberations necessary to represent the State" in such matters and would inhibit the attorney general's office from rendering candid advice); Tex. Att'y Gen. OR2008-02184 at 2 (same). To the extent another state officer, or state agency, similarly had constitutional power or authority, it would have the separation-of-powers argument that TCEQ did not have in Abbott. Section 552.008's separation-of-powers implication is another reason that we cannot construe section 552.008 to be absolute.

SUMMARY

As part of the Public Information Act, Government Code section 552.008 affords a Legislator a special right of access to governmental information sought for legislative purposes. But Government Code chapter 571, governing the Texas Ethics Commission, expressly provides that documents and evidence relating to the processing, preliminary review, preliminary review hearing, or resolution of a sworn complaint are not subject to the Public Information Act. Accordingly, a court giving effect to this plain language would likely conclude that the Texas Ethics Commission may not release confidential sworn complaint information to a Legislator pursuant to a request under section 552.008.

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

AUSTIN KINGHORN
Chair, Opinion Committee

Footnotes:

¹ Letter from J.R. Johnson, Exec. Dir., Tex. Ethics Comm'n, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 3, 2023), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2023/RQ0519KP.pdf ("Request Letter").

² You do not direct us to any "other law," and after a non-exhaustive search we find none that broadly addresses a Legislator's access to confidential information. See id. at 1–2. That said, we limit this opinion to the provision about which you ask and address only Government Code section 552.008.

³ Subsection 571.140(b) provides that an "order issued by the commission after the completion of a preliminary review or hearing determining that a violation other than a technical or de minimis violation has occurred is not confidential." TEX. GOV'T CODE § 571.140(b). You do not indicate that this exception has any application. See Request Letter at 1–2.

⁴ Subsection 571.140(b-1) authorizes a Commission employee to release certain information, including a sworn complaint, to the complainant, the respondent, or a witness under certain circumstances. TEX. GOV'T CODE § 571.140(b-1). Section 571.171 authorizes the disclosure of confidential information to an appropriate prosecuting attorney when the Commission makes a referral for criminal prosecution. Id. § 571.171(c).

⁵ "A person commits an offense if the person discloses information made confidential by this section." Id. § 571.140(c).

⁶ Given our conclusion in this opinion, we need not discuss section 552.008's provision that allows a governmental body to require the requesting member of the Legislature to sign a confidentiality agreement covering the disclosed confidential information. See supra at 2–3; TEX. GOV'T CODE § 552.008(b). Such agreement preserves the confidentiality of the information when disclosed under section 552.008. Abbott, 311 S.W.3d at 675. We note, however, that the Public Information Act provides that the release of confidential information obtained pursuant to section 552.008 may result in criminal penalties. See TEX. GOV'T CODE § 552.352(a-1). Additionally, a violation under section 552.352 constitutes official misconduct. Id. § 552.352(c).