### ATTORNEY GENERAL OFTEXAS 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 53ofthe 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 ofthe 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 ofthe 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 asExhibit B, at 1[hereinafter Incentive Plan]. Under the proposed incentive plan, employees whose annual job performance has been meritorious would be eligible for bonuses ifthey meet the following criteria:

. Full time employee with aminimum ofone year [of] service at the end ofthe 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 afully 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 atthe discretion ofthe 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 53forbids the legislature “to grant, orto authorize any county. to grant any extra compensation, fee or allowance to apublic officer, agent, servant or contractor, after service has been rendered, or acontract has been entered into, and performed in whole or in part.” TEX.

### CONST.

art. III, 553. Consistently with article III, section 53, acounty may not pay additional compensation to employees for work already performed. See City ofOrange 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 abonus 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 atthe discretion ofthe Commissioners Court” and that the Commissioners Court reserves “the right to administer, modify or terminate the Plan with or without notice.” Incentive Plan, supra at2; 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 ofbonuses and administration ofthe plan a matter within the Commissioners Court’s discretion does not render the Incentive Plan unconstitutional under article III, section 53. Article III, section 53does 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 ofearmarked funds. See id. at 3-4. Similarly, Smith County may, without running afoul ofarticle 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 orterminate 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 ofnew consideration, no modification ofthe Incentive Plan results in apayment for services rendered prior to such modification. See id. at 3. You also ask whether, “ifthe incentive plan istotally atthe discretion ofthe commissioners court,
. .the plan [is] tied to [an] employeerls performance.” Request Letter, supra note 1, at2. Whether aparticular plan is“tied to” employee performance isaquestion that requires the resolution of fact issues and is thus beyond the purview ofthe 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 isthe effect ifany of anincentive 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 afully implemented business plan approved bythe 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 abonus 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 asamatter oflaw. You have not named any statute that would restrict acommissioners court’s authority to condition eligibility for bonuses inpart on such a criterion, and we are not aware of any. A commissioners court has the power to “set the amount ofthe compensation” paid to county employees out ofcounty funds. TEX.LOC.GOV’TCODE ANN. 9 152.011~(Vernon 1999); see id. 5 111.008. Compensation includes incentive orbonus 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 anabuse ofdiscretion asamatter oflaw. Cf: Tex. Att’y Gen. Op. No. JM- 1160 (1990) at2 (“The fact that one employee may receive greater sick leave than another employee would appear to be permissible so long asthe 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 

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United Latin Am. Citizens, 868 S.W.2d 306, 312 (Tex. 1993); We&r v. City ofSachse, 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, 53. Rather, a court generally will require only that a classitication “be rationally related to a legitimate state purpose.” Richards, 868 S.W.2d at 310-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 asrace or national origin. In those instances, the state action is subjected to strict scrutiny, requiring that the classification be narrowly tailored to serve acompelling government interest. Id. at 311 (citations omitted). Among full-time employees who are eligible for bonuses because they have had favorable work evaluations, the Incentive Plan, inyour 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 12nn.3 &4(1976) (listing rights that courts have identified asfundamental and classifications that courts have identified as suspect). Consequently, the classification established bythe proposed Incentive Plan must, asamatter oflaw, be only rationally related to a legitimate state purpose. Whether the proposed Incentive Plan is rationally related to alegitimate state purpose isafact question that cannot beresolved inthe 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 areprovided 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 ifemployees’ 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