A lot of people have asked me about the Harris-Abraham TEC complaint and "what happens next." Buckle up, I'll walk you through the craziness of the TEC's lack of due process. Understand, as things stand, this same thing could happen to any one of you, about any number of things. The TEC has jurisdiction over every Texan and their speech about candidates, campaigns, elections, legislation, you name it.
So @CodyforTexas filed a complaint against
@abrahamgeorge. It asks the TEC to do two things:
(1) Initiate a civil investigation that would cost about a million in legal fees to fully defend, all over whether to impose a $5000 civil penalty; and
(2) Refer the case to a district attorney to indict Abraham George and put him in prison for a minimum of two years.
Both requests are handled through a secret, closed-door, combined civil/criminal process at the TEC, which is a body of legislative appointees split fifty-fifty between RINO Republicans and Democrats.
The TEC's first step is to reach out to the accused to ask them to waive their right to receive notices by mail. The TEC is very concerned about the cost of having to mail notices to people who are in their gunsights. So they call and email and ask for a waiver of the respondent's rights. They ask to do everything by email. Most people agree because they assume they have to. This is how most people learn that they are being subject to the TEC's process. They are not provided with a lawyer to explain this stuff. And quite frankly, there's only a small handful of lawyers who know anything about it.
The TEC has five business days to decide whether to accept jurisdiction of the complaint. To be clear, I think the legal theory here is so insane that they probably won't accept it. But the TEC is also insane, so I'm occasionally surprised when they plunge headlong into cases based on crazy legal theories.
(For example, I was surprised when the TEC accepted jurisdiction over a complaint against one of my clients because an attendee at her fundraiser tipped a musician who was performing $20 and she allegedly failed to report the tip as a political contribution. I'm not kidding.)
The jurisdiction decision will be made by a single career bureaucrat with a hard-Democrat voting history named – I kid you not – John Johnson.
If the TEC decides the complaint doesn't state a violation, they will send notice to Cody Harris and will invite him to amend his complaint and try a second or third time. Rinse and repeat until he comes up with a cockamamie theory that the TEC thinks sticks.
If John Johnson (the hard Democrat) decides that he agrees with Cody Harris that the Republican Party Chairman telling Republicans to vote for the Republican nominee is a second degree felony, the TEC will open an investigation. To be clear, John and his cohorts at the TEC claim to have no prosecutorial discretion. If the Harris complaint states facts that, if true, would be an offense—in their opinion—they believe they MUST start an investigation.
Abraham George would then be given 10-25 business days to file a response to the TEC complaint. He's required to raise all jurisdictional challenges immediately in that response. But that doesn't really matter, because the TEC has never approved a jurisdictional or constitutional challenge. This answer is not expected to be a general denial. He will be expected to substantively explain why he is innocent, or to plea for mercy. Filing a general denial, like any lawyer would in any court, is viewed as non-cooperation. We'll get at that in a moment.
After he files his answer, the TEC will send Chairman George a bunch of written questions about the case. He is REQUIRED to answer these questions. If he doesn't answer the questions, the TEC has granted itself the authority to impose a fine of up to $5,000 for inadequately answering the questions.
After they get through the "you must incriminate yourself" part of the interrogation, the TEC will typically offer to settle the case for a hefty fine. If George refuses to pay a fine, or pleads his innocence, a "preliminary review hearing" will be scheduled in Austin. It will be held behind closed doors, in the bowels of the Capitol. Typically the TEC will subpoena only one witness – the accused. The TEC staff will argue their case to the eight TEC commissioners, and then they will call George as their only witness. They will demand that he testify against himself in the matter.
Since this is the state party chairman, he'll have a lawyer, unlike 90% of those who are dragged in front of the TEC. That lawyer will advise George that he is still subject to referral for criminal prosecution at any time, and that anything he says, even in his own defense, can only be used against him. So he'll probably invoke his Fifth Amendment right not to testify.
If he does, the TEC will make a civil finding against him. They will find that his invocation of the Fifth Amendment is evidence of his guilt, for civil purposes.
If they find there is sufficient evidence (including their finding based on Fifth Amendment invocation), they will order that the investigation/prosecution proceed to a "formal hearing" which will repeat this whole process, except this time in front of cameras. But get this, even if they find that there's NOT enough evidence to know whether a violation has occurred, they STILL can order the formal hearing. So the preliminary review hearing is really just kind of a secret test run on the real trial, to be conducted later.
At this point, they will offer the accused a deal. Settle today for about half of the possible total penalty, maybe even a quarter or ten percent, and the whole process ends. About 99% of people accused before the TEC choose this very reasonable option. For a fine like $1,000, they can end the nightmare, and stop paying a lawyer vast sums to defend them in this process.
But settling the civil case doesn't mean the criminal referral is off the table. The TEC could impose the civil penalty, and still vote to send the case to a criminal prosecutor. In fact, there will be a perception if the accused settles that they "confessed" and that "confession" might be used as evidence of guilt to call for criminal proceedings.
But if at this point, Abraham George wants to continue to protest his innocence, he would need to turn down the TEC's offer. The TEC will then start to prepare for a formal hearing. To do that, they'll likely vote to issue subpoenas to investigate all facets of George's life, fishing for evidence. These subpoenas and pre-hearing motions about them can indefinitely delay the case from going to a formal hearing, even for years. Each time George objects to a subpoena, he'll have to go back in front of the very same eight-person tribunal that issued them in order to ask them to quash their own demand. Of course, they will overrule his objections. And they have granted themselves authority to fine George up to $5,000 per order that they deem him to violate. There are no limits on these penalties.
Eventually the TEC will schedule a formal hearing on the Harris complaint, probably years in the future. They'll set a time limit on the hearing. So unlike a real trial, that might go on for days, this one will be heard and disposed of in hours. The TEC are busy people and they're not going to give the accused more than a few hours of their time.
At the formal hearing, the same TEC commissioners who have heard this case before at the preliminary review stage will hear the same evidence and argument from their own staff that they've seen several times before. At the conclusion, they will affirm their prior decisions. No one has ever "won" a formal hearing. They will again call George, the accused, to the stand and demand that he testify against himself. In a public humiliation ritual, they will subject him to a litany of questions, and force him to invoke his Fifth Amendment right to each question. They will make a civil finding against him if he does so. Liberal media will crow about how the GOP chairman "plead the fifth."
After the formal hearing is over, they can vote to issue findings and an order fining Abraham George $5,000 per offense, or "three times the amount that is at issue" (whatever that means) plus impose fines for his non-cooperation with their orders and for failing to adequately answer their written questions. Typical fines for non-cooperation are $2,500 but there are no limits. The TEC has claimed authority to issue fines totaling in the hundreds of thousands of dollars, and in recent years has started to issue fines in the tens of thousands.
If at any point in this process Chairman George decides this process is abusive and unfair and refuses to show up, the TEC has granted itself authority by rule to impose a default civil judgement against him.
At the end of the process, and hypothetically at any point during the investigation, the TEC can vote to refer this matter to a district attorney to pursue a criminal indictment. But even if they do that, they can continue on with their civil prosecution. It's not an either-or proposition. If they make such a referral (and thanks to our court of criminal appeals, ONLY if they make such a referral), then the prosecutor could take the case before a grand jury, seek an indictment, and if he obtains one, have George arrested and prosecuted and ultimately imprisoned for no less than two years.
If that happened, George would not just be deprived of his liberty, he would be disenfranchised from voting, stripped of his second amendment rights, blocked from many professional licenses, separated from his family, and locked in a cage.
Meanwhile, the TEC's civil finding against him would become final and unappealable within 30 business days if he does not hire a lawyer at his own expense to file a "trial de novo" in a Texas district court. There, the procedure gets even more confusing, believe it or not. The TEC will officially have the burden to prove its case "de novo" in the trial court. However, because George is the plaintiff who files the case, the TEC will claim that it is the defendant, and that it is not required to file a petition or otherwise plead its case. It will actually file an answer, including a general denial. The TEC will paradoxically demand that George prove his own innocence, and if he attempts to have their case against him dismissed, they will argue that he is "attempting to dismiss his own appeal."
Ultimately, they will go through a full civil case. Nine months of discovery. A full jury trial. They will seek to affirm their penalties, and maybe seek even more. This process can be the subject of appeals, possibly multiple appeals, that can take years on top of the initial trial.
If Chairman George wins at any point, his "win" is only that this insane nightmare is over. He never gets his time or attorneys' fees back. The TEC litigates against him at taxpayers' expense, while he would be required to fund his own defense, regardless of the cost.
This has happened before. It could repeat here. And it could happen to you. And this is why we must end the Texas Ethics Commission's abuse of everyday Texans who simply want to speak out about their own government.