Can a Texas county pay its court clerks a one-time bonus for extra work they already did?

Plain-English summary

Brown County Auditor Jennifer Robison asked the Attorney General whether article III, section 53 of the Texas Constitution prohibited a one-time bonus the county's four justices of the peace wanted to pay the three clerks who run their courts. The justices proposed a special $1,000 payment to each clerk, drawn from the justice court technology fund, to recognize the extra work the clerks took on during the COVID-19 pandemic, including rescheduling proceedings, learning to run video and telephone hearings, and working some Saturdays on their own initiative to keep four courts on schedule.

The AG started by noting a limit on the opinion process: whether a specific payment violates article III, section 53 turns on factual questions that an AG opinion cannot resolve, so the opinion gives only general guidance. Article III, section 53 bars a county from granting "any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered." Its purpose is to keep counties from giving away public money for work already done or for which there was no valid authorization and the public gets nothing in return.

The key, the AG explained, is the word "extra." The provision does not forbid paying for services; it forbids paying extra compensation. Drawing on court decisions, the AG noted that paying for work outside the scope of what an employee was already contracted to do is not "extra compensation," because the county has not already paid for that work. So whether the clerks' bonus triggers the constitutional bar depends on whether the work they did fell within the scope of their original employment. If it did, and the bonus is therefore extra compensation, then paying it after the work was finished would be an unconstitutional retroactive payment, consistent with the office's earlier opinions that a one-time bonus for work already performed violates article III, section 53 while a prospective increase does not. The AG closed by pointing to the lawful path: a commissioners court can approve a bonus plan that ties compensation to services rendered after the plan is approved.

What this means for you

This describes what the 2021 opinion holds about a constitutional rule. The opinion does not bless or reject the Brown County bonus, and you should confirm current law and get specific legal advice before acting.

County auditors and commissioners courts

The opinion holds that a one-time bonus for work already done likely violates article III, section 53 if the work was within the scope of the employee's existing job, because that is "extra compensation . . . after service has been rendered." The cleaner route the opinion identifies is to adopt a bonus or performance-pay plan before the work is performed, so the pay is prospective.

Justices of the peace and other elected officials proposing staff pay

The opinion describes the line between rewarding work that was already part of the job (problematic if paid afterward) and paying for work outside the original employment arrangement (which may not be extra compensation). The distinction is fact-specific.

Public employees hoping for a bonus

The opinion explains why a retroactive thank-you bonus for past work can run into a constitutional barrier, and why a forward-looking bonus tied to future performance does not.

Common questions

Q: Does the Texas Constitution ban bonuses for county employees?
A: Not all bonuses. Article III, section 53 bans "extra compensation" granted to a public servant after the service has already been rendered. A bonus approved before the work, tied to future performance, is not barred.

Q: Why couldn't the AG just say whether the Brown County bonus was legal?
A: Because the answer depends on facts, mainly whether the clerks' extra work fell within the scope of their existing jobs, and the AG opinion process does not resolve fact questions.

Q: What makes a bonus "extra compensation"?
A: Under the cases the AG cites, it is extra compensation when the county is paying again for work the employee was already required to do. Paying for work outside the original employment arrangement may not be extra compensation.

Q: How can a county lawfully reward staff?
A: The opinion points to approving a bonus plan that ties compensation to services performed after the plan is approved, so the reward is prospective rather than retroactive.

Background and statutory framework

Article III, section 53 of the Texas Constitution prohibits the Legislature from authorizing a county to grant extra compensation, a fee, or an allowance to a public officer, agent, servant, or contractor after service has been rendered. Texas courts have read the provision to guard against counties giving away public money for past services or services with no valid authorization, while recognizing that it targets only "extra" compensation, not all pay. The opinion relies on Lee v. El Paso Cnty. for the provision's purpose and on City of Denton v. Rushing for the scope-of-contract distinction, and it harmonizes with prior AG opinions (KP-0315, JC-0123, JC-0376, and GA-0368) holding that retroactive one-time bonuses are barred while prospective, pre-approved compensation plans are not. A footnote also notes that the request did not ask about using the justice court technology fund, and cites the rules for harmonizing same-session statutory amendments in Government Code section 311.025(b) and (d).

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. III, § 53 (extra compensation after service rendered)
• Tex. Gov't Code § 311.025 (harmonizing same-session amendments)

Key cases:

• Lee v. El Paso Cnty., 965 S.W.2d 668 (Tex. App.—El Paso 1998, pet. denied) (purpose of article III, section 53)
• City of Denton v. Rushing, 521 S.W.3d 88 (Tex. App.—Fort Worth 2017), rev'd on other grounds, 570 S.W.3d 708 (Tex. 2019) (pay for work outside the contract is not "extra compensation")

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0361
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0361.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 5, 2021

Ms. Jennifer D. Robison, CPA
Brown County Auditor
200 South Broadway
Brownwood, Texas 76801

Opinion No. KP-0361

Re: Whether article III, section 53 of the Texas Constitution prohibits a one-time bonus for the administrative staff of the county's justices of the peace (RQ-0380-KP)

Dear Ms. Robison:

You ask whether article III, section 53 of the Texas Constitution prohibits the payment of a one-time bonus for the administrative staff of the county's justices of the peace.¹ According to documents submitted with your letter, the four justices of the peace for Brown County proposed "a special, one-time $1,000 payment to each of the three clerks" who serve the justice courts, to be paid out of the justice court technology fund. Attachment (Justice of the Peace statement) at 2. In their approval request to the commissioners court, the justices of the peace stated that the coronavirus pandemic caused an increased workload for the clerks due to the need for rescheduling of proceedings and "expand[ing] their knowledge base to accommodate video hearings and telephonic appearances of participants." Attachment (Justice of the Peace statement) at 1. The justices added that the clerks had "gone above and beyond, to maintain the schedules for all four courts" and that the clerks also worked some Saturdays on their own initiative to keep up with the workload. Id. You question whether article III, section 53 of the Texas Constitution prohibits this payment. Request Letter at 1. Whether a particular payment is constitutional under article III, section 53 involves factual determinations and cannot be resolved as a matter of law in an attorney general opinion, but we can provide general advice on article III, section 53. See Tex. Att'y Gen. Op. No. KP-0315 (2020) at 2.

Article III, section 53 of the Texas Constitution, in relevant part, prohibits the Legislature from authorizing a county "to grant . . . any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered." TEX. CONST. art. III, § 53. The provision is intended to prevent counties "from freely giving away public moneys for services previously rendered or for which no valid legal authorization existed and for which the public would receive no return." Lee v. El Paso Cnty., 965 S.W.2d 668, 673 (Tex. App.—El Paso 1998, pet. denied). The provision does not necessarily prohibit "any compensation" for services provided but instead concerns "granting extra compensation." City of Denton v. Rushing, 521 S.W.3d 88, 96 (Tex. App.—Fort Worth 2017) (emphasis omitted), rev'd on other grounds, 570 S.W.3d 708, 709 (Tex. 2019). The distinction, as a court explained, is that payment for services outside the work contracted for "is not . . . extra compensation because the City [has] not already paid" for those services. Id. at 97; see also Tex. Att'y Gen. Op. No. KP-0315 (2020) at 2 (explaining that the prohibition potentially arises when performance is already required by an existing employment arrangement). Thus, whether the one-time bonus at issue triggers analysis under this constitutional prohibition depends on whether the services rendered come within the scope of the original employment contract or arrangement such that the payment constitutes "extra compensation."

To the extent the bonus constitutes extra compensation, article III, section 53 prohibits the county from granting it to a public servant "after service has been rendered." TEX. CONST. art. III, § 53. As this office previously concluded, "an increase in benefits approved after the work has been performed may not be applied retroactively to work that has already been performed." Tex. Att'y Gen. Op. No. JC-0123 (1999) at 2; see also Tex. Att'y Gen. Op. No. JC-0376 (concluding that a one-time salary bonus to court personnel for work already done would violate article III, section 53 but that a prospective increase in compensation or benefits would not). The commissioners court could, however, approve a bonus plan that ties compensation to performance for services rendered after the approval of the plan.² See Tex. Att'y Gen. Op. No. GA-0368 (2005) at 2.

¹ See Letter from Ms. Jennifer D. Robison, Brown Cnty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 14, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0380KP.pdf ("Request Letter"), and Attachments (on file with the Op. Comm.) ("Attachments").

² You ask only about the constitutionality of granting a one-time bonus payment as requested by the justices of the peace and not about their proposal to utilize funds from the justice court technology fund pursuant to recent legislative amendments. See Request Letter at 1; Attachment (Justice of the Peace statement) at 1 (referencing Senate Bill 1840, but not Senate Bill 346, from the 86th legislative session). "[I]f amendments to the same statute are enacted at the same session of the legislature, one amendment without reference to another, the amendments shall be harmonized, if possible, so that effect may be given to each. If the amendments are irreconcilable, the latest in date of enactment prevails." TEX. GOV'T CODE § 311.025(b). "[T]he date of enactment is the date on which the last legislative vote is taken on the bill enacting the statute." Id. § 311.025(d).

S U M M A R Y

To the extent one-time bonuses constitute extra compensation for certain work performed by justice court clerks, article III, section 53 of the Texas Constitution prohibits the payment of the bonuses retroactively. A prospective bonus approved prior to the rendering of services would not run afoul of article III, section 53.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee