Salary and benefits payments to an incarcerated county elected official?

Honorable Members of the Smith County Commissioners Court and Honorable DA Putman:

Grassroots America raises a simple – yet vitally important – legal matter regarding the continuation of salary and benefits payments to an incarcerated county elected official.

Article III, section 52(a) of the Texas Constitution prohibits the gratuitous payment of public funds for a private purpose. The determination of whether or not a public expenditure to an incarcerated county clerk fits the definition of “gratuitous” belongs to the Smith County Commissioners Court – as the elected governing body of Smith County, Texas. This is not a decision that can be unilaterally made by one member of the Commissioners Court, the County Judge, and/ or the Human Resources Director.

Grassroots America contends that continuing to pay a salary to an official who is not working due to incarceration strongly appears to violate this provision of the Texas Constitution.  We rely on the following:

The Texas Supreme Court has enumerated a three-part test by which to determine whether a grant of money or thing of value is prohibited as gratuitous. [Texas Mun. League Intergovernmental Risk Pool v. Texas Workers’ Comp. Comm’n]

This germane enumeration by the Texas Supreme Court is cited in Texas OAG Opinion No. KP-0007 dated March 19, 2015.  KP-0007 quotes that ruling: “(…an entity making a public expenditure must: (1) ensure the expenditure’s ‘predominant purpose is to accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds to ensure that the public purpose is accomplished and to protect the public’s investment; and (3) ensure that the political subdivision receives a return benefit’). Relevant here, the three-part test requires that the expenditure must accomplish a public purpose and be reciprocated with return consideration or a clear public benefit. The determination of whether a particular expenditure satisfies the three-part test is for the political subdivision to make in the first instance, subject to judicial review for abuse of discretion.”

It is our understanding that the convicted Smith County Clerk chose jail time over probation, which removed all possibility of her being present to conduct the official statutory duties of the Office of Smith County Clerk; therefore, the public is clearly denied any “benefit” from her taxpayer-funded compensation.

The fact that her sentenced jail time is thirty days is immaterial – especially since Smith County taxpayers have assumed the cost of her prosecution, trial, and incarceration – in addition to the numerous opportunity costs.

On behalf of the Grassroots America Board of Directors, I assert that it is the legal and administrative duty of the Smith County Commissioners Court to place this matter on the Court’s agenda without delay.

I look forward to your responsive action.

CC:  Tom Fabry, Chairman, Government Watchdog Committee
Board of Directors, Grassroots America – We the People PAC™
Thomas Wilson, Assistant District Attorney – Civil Division