Posted: 10:00 a.m. Thursday, December 15, 2016
A little-known state program that allows the most powerful county officials in Texas to goose their annual salaries by as much as 50 percent operates with no oversight and is being exploited by some, wasting hundreds of thousands of dollars in taxpayer money, an American-Statesman investigation has found.
Despite their title, constitutional county judges are the top administrative officers in Texas counties, elected to oversee budgets and preside over county commissioners courts. They are often compared to city mayors.
Yet the state constitution also empowers them to perform many courtroom functions. In smaller or isolated counties lacking law-school-trained judges, especially, the work is essential. For the past 20 years Texas legislators have offered a bonus: County judges who spend at least 40 percent of their time managing court cases can earn a perk on top of their salaries.
Over the years, what started as a modest supplement has climbed more than fivefold, to $25,200 — and is poised to climb again. Today, 219 of the state’s 254 county judges — 86 percent — claim the money.
Yet a Statesman analysis shows that some appear to do little for the extra pay. Others perform it more as a lucrative side gig than as a government necessity.
And in a state where residents complain regularly that lawmakers bury them in bureaucracy, the supplemental county judicial pay program stands out for having virtually no oversight.
Other types of Texas judges also are eligible to receive supplemental pay. But it must be approved by elected county commissioners.
By comparison, the only requirement for a county judge to collect the additional pay is to submit a single piece of paper at the start of each year pledging to spend the equivalent of two of every five days performing courtroom work.
The pay boost requires no vote or approval. It requires no time sheets, calendars or case lists to demonstrate the county judges have spent the requisite time to justify the extra pay — or even that they have done it at all.
Last year, the auditor for Austin County, a county of 30,000 between Austin and Houston, refused to pass along the extra state money to County Judge Tim Lapham after concluding that, while he had claimed the bonus, he’d performed negligible judicial functions.
Lapham acknowledged his court work was modest — “I heard a couple hearings and signed several search warrants” — but said he misunderstood the terms of the supplement to mean he qualified if 40 percent of the county judge’s job description was judicial, rather than 40 percent of his actual work. He said he doesn’t intend to apply for it again.
Auditor Billy Doherty said he froze the payment only after pleading with state officials to take action, to no avail. “The state of Texas has no oversight on it, which blows my mind. They don’t audit, they don’t investigate, they don’t do anything,” he said. “I don’t understand the concept. Everything else you ask for, you have to prove everything. Why is this so different?”
The work performed by some other county judges collecting the supplement also appears to be minimal.
In Calhoun County, along the Gulf Coast, state comptroller records show County Judge Michael Pfeifer has been paid the supplement each of the past three years after swearing he would spend the required 40 percent of his time on courtroom matters. But a summary of his court activity, maintained by the state Office of Court Administration, shows his court added no cases during that period.
Calhoun County also reported to the court agency that, while the county judge occasionally heard juvenile cases, it was only in emergencies, and when the county court-at-law judge wasn’t available. “It’s not very often,” Court-at-Law Judge Alex Hernandez said. “Maximum 10 times a year.”
Pfeifer said, in addition to his fill-in work for Hernandez, “I’ve done probate — not much, but some.” He added that he also was available to magistrate when needed, but that he couldn’t measure how much time the work took. “It’s difficult to say 40 percent of what,” he said.
In Houston County, in East Texas, Court-at-Law Judge Sarah Tunnell Clark said she was handling her docket just fine in 2015, when County Judge Erin Ford requested some of her cases and filed for the supplemental pay.
“I’ve always maintained that we handled these cases in the past, and we could’ve continued handling them,” Clark said. But “He felt strongly that was part of the job he really wanted to undertake.”
Ford conceded there was no pressing need to take on the judicial duties, but “I wanted to do the work because it was unique to the position.” By the time he retired, last month, the supplement was providing him a 48 percent raise, boosting his $54,000 annual salary to nearly $80,000.
Ford acknowledged that collecting the extra salary for work already being done adequately by a salaried court-at-law judge could be perceived as a waste of taxpayer money. “That’s a legitimate argument,” he said. “And I’ll take the heat on it if that’s how it comes out.”
State can’t investigate
Over its 20-year existence, there has never been an audit of the county judge supplement program, which costs about $5.5 million annually. Officials at the Office of Court Administration and the comptroller’s office said each had received complaints in the past that a judge wasn’t spending his time as promised. But, they added, there is nothing in the law that permits them to do anything about it.
“The relevant statute does not give us the authority to audit the program, so we refer all inquiries back to the counties,” said Lauren Willis, a spokeswoman for the comptroller. The Austin County auditor’s office appears to be the only one that has taken any action.
To estimate how much time each judge spent on court matters, the Statesman compiled individual activity records from the Office of Court Administration for the past six years. The numbers include misdemeanor court work encompassing criminal, civil and juvenile cases, as well as probate and mental health dockets.
The analysis isn’t perfect. The agency’s numbers don’t include when a county judge acts as magistrate — potentially time-consuming work that includes signing arrest warrants or issuing charges after an arrest — typically performed by justices of the peace.
The figures also don’t capture when a county judge substitutes for another local judge. And the newspaper found at least one instance in which a county mistakenly reported its county judge’s work as part of another court. Yet state court officials said the newspaper’s numbers painted a reasonable representation of county judges’ courtroom work. (The same method also was used to justify the judges’ most recent raise; see accompanying story.)
Many county judges juggle busy dockets in exchange for their extra pay, the records show. Nineteen reported taking on at least 1,000 new cases during fiscal 2015. In Jefferson County, which encompasses the city of Beaumont, County Judge Jeff Branick reported 2,300 new cases. “I don’t get bored, I’ll tell you that,” he said.
Branick, who has held the top office in the county just east of Houston since 2011, said he balances his administrative and courtroom duties by relying on staff for much of the preparation work. He noted that uncontested probate cases often can be dispensed with in less than five minutes.
Others spend comparatively little of their time on court work to earn their bonus pay.
Fifty county judges reported adding fewer than 100 cases each in 2015. One hundred of the judges, or nearly half who received the extra money that year, reported fewer than 200 cases added to their dockets during the entire 2015 fiscal year, according to the Office of Court Administration.
County Judge Jim White, who represents the approximately 800 residents of Kent County, in the Panhandle, collected the supplement for running a court that counted a half-dozen new judicial cases in 2015, according to the agency. The bonus payment boosts his salary nearly 50 percent, from $51,000 to $76,000.
White said the small numbers don’t adequately reflect his work volume. “I do counseling and consultation — a lot of prep before court,” he said. With no clerk or staff to help him, he added, “It’s hard to get any regularity of schedule.”
Some manage “significant dockets”
While the Texas Constitution grants county judges authority to hear a variety of cases, some in larger counties have relinquished courtroom work as their administrative duties have grown. (The majority of the county judges aren’t lawyers; the law requires them to be only “well informed in the law of the state.”)
Travis County Judge Sarah Eckhardt performs no courtroom work and doesn’t collect the state’s judicial supplement. Neither do the county judges in Dallas, Harris, Tarrant, El Paso, Bexar and other urban counties. Williamson County Judge Dan Gattis doesn’t receive it; Bert Cobb and Paul Pape, Hays and Bastrop county judges, respectively, do.
The establishment of so-called statutory, or at-law courts in some counties has also reduced the need for chief county administrators to manage a court docket. Created individually by the Legislature, at-law courts are empowered to handle the same work as county judges.
Yet their presence hasn’t necessarily eliminated supplemental payments in those counties. The Statesman’s analysis shows that 57 county judges receive the extra money despite having at least one local county court-at-law.
In some of those places, officials say the county judge’s work is an essential complement to the court-at-law judges. “Our judge (Nancy Tanner) has significant judicial dockets,” said Scott Brumley, county attorney in Potter County, which also has two courts-at-law.
In Bell County, County Judge Jon Burrows said running the hot-check docket and filling in on juvenile and probate cases has saved his growing Central Texas county money by delaying the establishment of a fourth court-at-law judge, a post with an average salary of more than $150,000 in Texas.
In other jurisdictions with at-law courts, evaluating whether a county judge has put in the promised time in exchange for the state money is more difficult. In Starr County, in the Rio Grande Valley, County Judge Eloy Vera has collected the judicial supplement for the past seven years, comptroller’s records show.
Yet his docket shows no new cases added in recent years, according to the Office of Court Administration. In response to a 2015 survey, the county reported Vera performed court work only when the court-at-law judge was unavailable.
Starr County Court-at-Law Judge Romero Molina estimated that Vera conducted about two dozen hearings a year. “I’m not aware of any other types of cases he hears,” Molina said.
Vera maintained that he presided over court twice a week, managing domestic violence and probate cases. Asked to tally the number of cases Vera had managed, however, County Clerk Dennis Gonzalez said the county judge had heard 42 cases for each of the past three years, less than one per week.
“We don’t need help”
Complaints that a county judge collected the supplemental money without earning it have occasionally erupted into the open.
In Caldwell County, 20 miles south of Austin, County Judge Ken Schawe received the $25,200 payment this year after initially vowing not to take it. He changed his mind, he said this summer, because probate cases were stacking up and local judges needed the assistance.
Yet, “there is no backlog” of cases, Caldwell County’s District Attorney Fred Weber said.
When several local officials protested, the county judge was unapologetic. “I also said ‘I do’ twice,” Schawe said, as reported by the Lockhart Post-Register. “I was married twice; people change their minds.” The supplement would bump Schawe’s annual compensation 49 percent, from $51,600 to more than $76,800.
According to the county clerk’s office, Schawe has heard nine probate cases over two court settings since the end of October. In an interview, he said the low numbers didn’t accurately reflect the time he put into the cases because he was inexperienced and so worked slower than other judges.
Schawe explained he decided to take on judicial work now so the court system would be prepared for Caldwell’s future growth. He added, however, that the public outcry has made him re-evaluate whether he’ll keep the money.
“I may donate it back to the county,” he said.
Carl Thibodeaux served 20 years as Orange county judge without performing court work. “My position was it wasn’t necessary,” he said. With three district courts and two county courts-at-law “there wasn’t the 40 percent of the work there.”
His replacement, County Judge Stephen Brint Carlton, recently announced his intention to start hearing cases and collect the $25,200. According to local media reports, Carlton, whose salary is $85,500, said he was activating the courtroom part of his job to save the county money.
Yet at a September meeting, both court-at-law judges protested they didn’t need the assistance. “There is no backlog,” Judge Troy Johnson said, according to the Orange County Record. “We don’t need help.”
County Commissioner David Dubose noted that Carlton’s court work would actually cost Orange County money because it would have to pay his assistant an additional $4,600 to manage the judge’s new court docket. “The only people I see being helped by this are you and” the assistant, he said.
Carlton, an attorney, acknowledged the local at-law judges said they didn’t need help. But he added he’d heard from lawyers that probate cases were being heard more slowly than they preferred.
As a veteran, Carlton said he also hoped to start up a local misdemeanor veteran’s court for Orange County, although he said he didn’t know how much of his time it would demand. “It’s an extra service,” he said. “A benefit to the community.”
When he took office in 2015, Waller County Judge Carbett “Trey” J. Duhon III also broke with his predecessor to receive the extra money, bumping his total current annual compensation from $88,700 to $114,000. County Court-At-Law Judge June Jackson has resisted turning over any of her cases because, she said, she doesn’t need the help.
“I’ve been doing this for 25 years; I don’t feel overworked,” she said, adding that the probate cases Duhon is seeking to hear, in particular, aren’t burdensome: “They take maybe 5 percent of my time.” After consulting with attorneys who told her that Duhon is entitled to the cases, Jackson said she will share some of her docket.
In the meantime, Duhon, an attorney, said he’s had no problem making the 40 percent requirement with weekend magistrate duties and helping sign DWI blood-draw warrants. “It’s just a duty I’ve taken on,” he said. Although the $25,200 boost “helps pays the bills,” Duhon added that his courtroom work has also cost him money by cutting into his private practice billings.
Texas Rangers investigate
Comptroller’s records show that there have been two instances in which a county returned the state money because a judge wasn’t spending enough time in the courtroom. The largest refund, $22,531, came from Ellis County, where in 2014 a resident filed a complaint with the Texas Rangers against County Judge Carol Bush for taking the supplement without doing the work.
Rockwall County District Attorney Kenda Culpepper, who was appointed as special prosecutor for the case, said the Rangers recommended no charges after Bush returned the money to the state. Bush didn’t return calls seeking comment.
In the past seven years, judges in only two counties have stopped accepting the payments without being pressured by complaints. (Overall, the number taking it statewide has climbed slightly.)
Longtime Brazoria County Judge Joe King took the extra pay, records show, but when Matt Sebesta replaced him in January 2015 he had no interest in holding court — nor, he said, did he have the time. “I have more than enough on my plate,” he said.
Sebesta added that Brazoria’s courts appeared to be running smoothly without his help: “They all do a great job.”
When he filled in as interim county judge for Wise County in 2014, Glenn Hughes recommended his successors not apply for the state payments, even though his predecessor had. “It puts the judge in a bad place to require him to do 40 percent of his time on judicial duties when we have two court-at-laws now taking care of a lot of that,” he said.
“The constitutional county judge did not really handle that many cases,” confirmed Wise County Court-at-Law No. 2 Judge Stephen Wren, whose court was created in 2011 to address the county’s growing caseload. “We’re able to handle it just fine.”