Honorable District Judges and Auditor Smith:

As previously shared and discussed with County Auditor Smith and some members of the Council of District Judges, our county’s financial and bond project-related records show troubling discrepancies that we have sought to reconcile for almost a year without resolution. Frankly, the deeper we dig, the more alarmed we become.

Discrepancies in fund balances and reports for bond-funded capital projects must be reconciled. In addition, staff actions that have never even been discussed in Commissioners Court – let alone authorized by an official vote of the Commissioners Court – present a troubling pattern.

In one example, we discovered a legal notice for a Request for Proposal (RFP) solicitation related to an Employee Health Care Clinic for a project never discussed or approved by the Commissioners Court. In May 2025, we delivered proof via a copy of the legal notice…

Tyler, Texas | September 5, 2025 – Today, statewide conservative citizen action committee Grassroots America – We the People (based in Smith County, TX) released its Thursday, September 4^th letter to District Attorney Jacob Putman, Smith County Judge Neal Franklin, Commissioners Christina Drewry, John Moore, J. Scott Herod, and Ralph Carraway, Sr. requesting the immediate scheduling an official review of a Texas Supreme Court ruling as it relates to continued taxpayer-funded salary and benefits payments to a convicted, incarcerated elected official. The referenced SCOTX ruling addresses a three-part “test” to determine whether or not such payments are deemed “gratuitous” and therefore prohibited by law.

Article III, section 52(a) of the Texas Constitution prohibits the gratuitous payment of public funds for a private purpose. Grassroots America contends that continued taxpayer-funded salary and benefits for an elected official who is not working due to incarceration strongly appears to violate this provision.

Grassroots America’s Executive Director (and former Smith County Commissioner) JoAnn Fleming said, “The determination of whether or not a public expenditure to a convicted,  incarcerated elected official 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.”

Fleming continued, “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.”

Fleming concluded, “The fact that the county clerk’s sentenced jail time is thirty days is immaterial – especially since Smith County taxpayers have assumed the entire cost of the investigation, her prosecution, trial, and jail housing.”

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