Paxton demands back pay for suspension time

Among those Attorney General Ken Paxton chastised in his post-acquittal media tour is Comptroller Glenn Heger, who Paxton alleges illegally withheld his salary as attorney general during his suspension. Now, Paxton and the Office of the Attorney General (OAG) want back pay from the comptroller’s office, the state’s chief financial officer.

“I am aware that staff at the Office of the Comptroller of Public Accounts has withheld salary payments from Attorney General Ken Paxton during pendency of impeachment proceedings and that the [comptroller] has further refused to provide back payments to Attorney General Paxton notwithstanding his full acquittal of all impeachment charges,” First Assistant Attorney General Brent Webster wrote to the comptroller’s office.

“I write today to unequivocally inform you that the Office of the Attorney General’s position is that the [comptroller] is in violation of not only state law, but also the Texas Constitution, by refusing to issue salary payments to a duly elected statewide officeholder and advise you that this agency will consider all legal avenues to redress this issue.”

As attorney general, Paxton receives $153,750 in an annual salary. Paxton was suspended from his duties for 112 days before acquittal, which means he is seeking about $47,000 in back pay.

Webster then asserted that the Texas Constitution, which reads that the attorney general “shall receive an annual salary in an amount to be fixed by the Legislature,” requires the payments in any circumstance. And while the constitution states that an impeached officer of the state “shall be suspended from the exercise of the duties of their office,” it does not state that pay must be withheld.

“The constitution could have — but does not — provide that a public official is denied a salary during the pendency of impeachment proceedings,” Webster added. He also cited Texas Government Code Section 661.923 that provides for payment of an employee while under investigation.

Under Section 661, “employee” is defined as an individual, other than a state officer, employed by a state agency.” “State officer” is defined as “an elected officer, an appointed officer, a salaried appointed officer, an appointed officer of a major state agency, or the executive head of a state agency.”

That would suggest the salary carveout for employees under investigation does not extend to the elected official.

Describing the offices outside of governor and lieutenant governor, Article 4, Section 23 of the Texas Constitution states, “Each shall receive an annual salary in an amount to be fixed by the Legislature and perform such duties as are or may be required by law.” Paxton contends that despite the suspension, he remained the “duly elected attorney general.”

However, there is a counterargument that the state may pay only one attorney general at a time. Thus, as first John Scott and then Angela Colmenero served as the provisional attorneys general, they were the ones being paid for performing the office’s duties, precluding the suspended Paxton who could not.

The dispute is esoteric legalese and ultimately a court may have to weigh in, in which case the OAG or its agency head in his own personal capacity will have to sue the state that he usually represents in court.

During his interview with Tucker Carlson, Paxton said that he hasn’t sued the comptroller’s office because it’d have to be done in an Austin trial court — not exactly a friendly venue for the conservative attorney general. But the ultimate say in civil court lies with the Texas Supreme Court, an all-Republican bench, a fact that is usually to his office’s advantage.

The newly returned attorney general has said that the legal representation for his trial cost him more than $4 million, a large total in which $47,000 is a drop in the bucket.

The comptroller’s office has not yet officially responded to Webster’s letter.

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