ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

December 15,2006 

The Honorable D. Matt Bingham 

Smith County Criminal District Attorney 

Smith County Courthouse 

100 North Broadway, 4th Floor 

Tyler, Texas 75702 

Opinion No. GA-0492 

Re: Whether a proposed Smith ‘County 

incentive bonus plan for certain county 

employees complies with article III, section 

53 ofthe Texas Constitution (RQ-0486-GA) 

Dear Mr. Bingham: 

Gn behalf of a Smith County Commissioner, you ask whether a proposed Smith County 

incentive bonus plan for certain county employees complies with article III, section 53 of the Texas 

Constitution.’ 

You inform us that the Smith County Commissioners Court (the “Commissioners Court”) 

is considering adopting an incentive bonus plan for employees in departments that report directly to 

the Commissioners Court-that is, employees of the Commissioners Court, the records service, the 

veterans service, the physical plan[t], personnel, the probate court or courts, purchasing, the tire 

marshal, pre-trial, and road and bridge. See Request Letter, supra note 1, at 2; Smith County 

Incentive Plan, attached to Request Letter as Exhibit B, at 1 [hereinafter Incentive Plan]. Under the 

proposed incentive plan, employees whose annual job performance has been meritorious would be 

eligible for bonuses if they meet the following criteria: 

. Full time employee with a minimum of one year [of] service at 

the end of the fiscal year. 

. Annual performance evaluation rating of [“Imeets 

expectationsr] or above. Department Heads must have an 

annual performance evaluation rating of [“Iexceeds 

expectations[“] or above. 

. Be an employee in good standing on the date incentive checks 

are distributed. 

‘See Letter from Honorable D. Matt B&ham, Smith County Criminal District Attorney, to Honorable Greg 

Abbott, Attorney General of Texas, at 1 (May 11, 2006) (on file with the Opinion Committee, also available at 

http://www.oag.state.tx.us) [hereinafter Request Letter]. 
The Honorable D. Matt Bingham - Page 2 (GA-0492) 

. Department Heads must have a fully implemented business plan 

approved by the Commissioners Court. 

Incentive Plan, supra at 1. Incentive payments will be distributed in the first quarter of the fiscal 

year based on performance in the prior fiscal year. See id. You also inform us that the Incentive 

Plan would stipulate that it “is provided at the discretion of the Commissioners Court” and further, 

that the Commissioners Court “reserves the right to administer, modify or terminate the Plan with 

or without notice.” Request Letter, supra note 1, at 2. 

Certain Smith County Commissioners question the Incentive Plan’s constitutionality. See 

id. You thus ask whether the Incentive Plan “meet[s] the requirements of [alrticle III, [slection 53 

of the Texas Constitution and what is the effect if any of an incentive bonus plan that does not 

include all county employees.” Id. at 1. 

Article III, section 53 forbids the legislature “to grant, or to authorize any county. to grant 

any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after 

service has been rendered, or a contract has been entered into, and performed in whole or in part.” 

TEX. CONST. art. III, 5 53. Consistently with article III, section 53, a county may not pay additional 

compensation to employees for work already performed. See City of Orange v. Chance, 325 S.W.2d 

838, 840 (Tex. Civ. App.-Beaumont 1959, no writ) (citing Rhoads Drilling Co. v. Allred, 70 

S.W.2d 576, 582 (Tex. 1934)). But a county may provide bonuses based on performance if the 

county approved a bonus plan before employee recipients performed the work for which the bonuses 

are given. See Tex. Att’y Gen. Op. No. GA-0204 (2004) at 3-4; Tex. Att’y Gen. Op. No. JM-1253 

(1990) at 2-3. 

Your specific concern about the Incentive Plan’s validity relates to the stipulation that the 

Plan “is provided at the discretion of the Commissioners Court” and that the Commissioners Court 

reserves “the right to administer, modify or terminate the Plan with or without notice.” Incentive 

Plan, supra at 2; see Request Letter, supra note 1, at 2. You ask whether, given these stipulations, 

the Incentive Plan is “approved as part of an employee’s compensation prior to the employee 

rendering service.” Request Letter, supva note 1, at 2. 

The fact that the Incentive Plan makes the award of bonuses and administration of the plan 

a matter within the Commissioners Court’s discretion does not render the Incentive Plan 

unconstitutional under article III, section 53. Article III, section 53 does not prohibit payments made 

for work performed under a contract or employment policy that provides merely for thepksibility 

of such payments. See Tex. Att’y Gen. Op. No. GA-0204 (2004) at 3 (quoting Tex. Att’y Gen. Op. 

No. K-0383 (2001) at 2). Thus, this office determined in 2004 that a school district could offer to 

certain teachers bonuses that were contingent on the availability of earmarked funds. See id. at 3-4. 

Similarly, Smith County may, without running afoul of article III, section 53, provide for employee 

bonuses that are conditioned on the Commissioners Court’s approval. 

Under the same analysis, the fact that the Commissioners Court can modify or terminate the 

Incentive Plan does not render the Incentive Plan unconstitutional under article III, section 53, 
The Honorable D. Matt Bingham - Page 3 (GA-0492) 

provided that, absent the receipt of new consideration, no modification of the Incentive Plan results 

in a payment for services rendered prior to such modification. See id. at 3. 

You also ask whether, “if the incentive plan is totally at the discretion of the commissioners 

court, . . the plan [is] tied to [an] employeerls performance.” Request Letter, supra note 1, at 2. 

Whether a particular plan is “tied to” employee performance is a question that requires the resolution 

of fact issues and is thus beyond the purview of the opinion process. Cf: Tex. Att’y Gen. Op. No. 

GA-0156 (2004) at 10 (stating that fact questions cannot be answered in the opinion process). 

Further, article III, section 53 does not distinguish between bonuses based on merit and bonuses 

based on other criteria. Thus, an incentive plan that is not tied to an employee’s performance does 

not necessarily contravene article III, section 53. 

Finally, you ask “what is the effect if any of an incentive bonus plan that does not include all 

county employees.” Request Letter, supra note 1, at 1. You are concerned in particular with the 

stipulation in the Incentive Plan that “Department Heads must have a fully implemented business 

plan approved by the Commissioners Court.” Incentive Plan, supra at 1; Request Letter, supra note 

1, at 3. You suggest that because of this stipulation an employee whose department head has not 

implemented an approved business plan would not be eligible for a bonus under the Incentive Plan. 

See Request Letter, supra note 1, at 3. You also express concern that an elected official could 

choose to exclude from the Incentive Plan employees in the official’s office who would otherwise 

be eligible to participate. See id. at 2-3. 

The fact that the Incentive Plan excludes employees whose department heads have not 

implemented approved business plans or have otherwise chosen not to participate does not 

necessarily render the proposed plan invalid as a matter of law. You have not named any statute that 

would restrict a commissioners court’s authority to condition eligibility for bonuses in part on such 

a criterion, and we are not aware of any. A commissioners court has the power to “set the amount 

of the compensation” paid to county employees out of county funds. TEX. LOC. GOV’T CODE ANN. 

9 152.011~ (Vernon 1999); see id. 5 111.008. Compensation includes incentive or bonus plans. See 

Tex. Att’y Gen. Op. No. JM-1253 (1990) at 2. In general, a commissioners court’s authority to set 

employee compensation is subject to review on an abuse-of-discretion standard, and providing 

different benefits to different employees does not constitute an abuse of discretion as a matter of law. 

Cf: Tex. Att’y Gen. Op. No. JM- 1160 (1990) at 2 (“The fact that one employee may receive greater 

sick leave than another employee would appear to be permissible so long as the additional benefits 

conferred under the guidelines are not dependent upon factors that might constitute an abuse of 

discretion.“). Whether this particular criterion constitutes an abuse of a commissioners court’s 

discretion is a question of fact that cannot be resolved in the opinion process. Cj: Tex. Att’y Gen. 

Op. No. GA-0156 (2004) at 10 (stating that fact questions cannot be answered in the opinion 

process). 

While “[bloth the federal and Texas constitutions safeguard against discrimination 

between classes of persons,” “ [e]qual protection does not entitle every citizen to receive equal 

benefits each time government money is spent.” Richards IJ. League of United Latin Am. Citizens, 

868 S.W.2d 306, 312 (Tex. 1993); We&r v. City of Sachse, 591 S.W.2d 563, 567 (Tex. Civ. 
The Honorable D. Matt Bingham - Page 4 (GA-0492) 

App.-Dallas 1979, writ dism’d); see U.S. CONST. amend. 14,s 1; TEX. CONST. art. I, 5 3. Rather, 

a court generally will require only that a classitication “be rationally related to a legitimate state 

purpose.” Richards, 868 S.W.2d at 3 10-l 1. 

The general rule gives way, however, when the classification 

impinges on the exercise of a fundamental right, or when the 

classification distinguishes between people, in terms of any right, on 

a “suspect” basis such as race or national origin. In those instances, 

the state action is subjected to strict scrutiny, requiring that the 

classification be narrowly tailored to serve a compelling government 

interest. 

Id. at 3 11 (citations omitted). 

Among full-time employees who are eligible for bonuses because they have had favorable 

work evaluations, the Incentive Plan, in your view, may distinguish between those whose department 

heads have implemented an approved business plan and those whose department heads have not. 

This is not a suspect classification; nor does the inability to receive a bonus infringe upon a 

fundamental right. Cf: Mass. Bd. ofRet. v. Murgia, 427 U.S. 307,3 12 nn.3 & 4 (1976) (listing rights 

that courts have identified as fundamental and classifications that courts have identified as suspect). 

Consequently, the classification established by the proposed Incentive Plan must, as a matter of law, 

be only rationally related to a legitimate state purpose. Whether the proposed Incentive Plan is 

rationally related to a legitimate state purpose is a fact question that cannot be resolved in the opinion 

process, Cf: Tex. Att’y Gen. Op. No. GA-0156 (2004) at 10 (stating that fact questions cannot be 

answered in the opinion process). 
The Honorable D. Matt Bingham - Page 5 (GA-0492) 

SUMMARY 

The Incentive Plan proposed by the Smith County 

Commissioners Court for certain county employees does not 

contravene article III, section 53 of the Texas Constitution unless 

employees are provided bonuses for work rendered before the plan’s 

adoption, The fact that the proposed plan stipulates that bonus 

awards are within the Commissioners Court’s discretion does not 

itself render the plan unconstitutional. 

The opinion process cannot determine whether the 

commissioners court would abuse its discretion or violate 

constitutional equal protection guarantees if employees’ eligibility for 

benefits under the proposed plan is contingent on their department 

heads’ actions. 

Very truly yours, 

Attorney General of Texas 

KENT C. SULLIVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Kymberly K. Oltrogge 

Assistant Attorney General, Opinion Committee