The Texas Comptroller of Public Accounts responded to the Office of Attorney General’s (OAG) demands for Ken Paxton’s back pay in a letter that said “we disagree with your interpretation of the Texas Constitution” and suggested it petition the state Supreme Court.
First Assistant Attorney General Brent Webster penned a letter to Comptroller Glenn Hegar on Tuesday, petitioning the agency to approve 112 days of back pay — about $47,000 — for Paxton. The pay was withheld while he was suspended pending the impeachment trial, in which he was acquitted on all 16 articles of impeachment earlier this month.
“We have a duty to follow the Texas Constitution and laws,” wrote Victoria North, general counsel for the comptroller’s office, in response to Webster’s appeal. “Because we disagree with your interpretation of the Texas Constitution on this very important issue, we encourage you to file a writ of mandamus with the Texas Supreme Court for a definitive ruling.”
“We anticipated that you would file a writ of mandamus after receiving our June 1 letter notifying your office that we could not pay the salary during the pendency of impeachment proceedings,” North continued. “We are a phone call away and are more than willing to have a conversation on how to efficiently seek a ruling, which is a position we have consistently held since we sent our letter 117 days ago.”
The comptroller’s office, North asserts, cannot initiate a suit against itself asking for the Texas Supreme Court to weigh in, thus leaving it with the OAG.
“Of course, if the Texas Supreme Court answers this unprecedented legal question by ruling that our constitution does not prohibit the payment of the Attorney General’s compensation during his temporary suspension, we will process your office’s payroll vouchers for the Attorney General.”
In order to resolve the “unprecedented” situation, North added, “a petition to the Texas Supreme Court can resolve this legal question.”
Without a pre-existing policy on how to handle pay during suspensions, the comptroller’s office asserts that a previous OAG legal opinion from 2005 found that suspension-with-pay is prohibited.
“We were unable to find preexisting legal authority for a suspension with pay for an attorney general who was temporarily suspended during impeachment proceedings,” North wrote. “As you noted, state statute provides this preexisting authority for state employees who are suspended pending an investigation. As your office stated recently, the Attorney General is an elected officer, and not an employee.”
That statute is Section 661 of the Texas Government Code which lays out pay for suspended employees but excludes a “state officer” from that benefit — a term defined in code as an elected officeholder.
Webster contends that the constitution is silent on the question of suspension-with-pay issue as it pertains to impeachment, and thus the comptroller is legally required to give the “duly elected officeholder” his pay during the period that he was suspended from his duties but not revoked of them.
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