August 25, 1993 

 

Mr. Carlos A. Pereda, Jr. 

Maverick County Auditor 

P.O. Box 1246 

Eagle Pass, Texas 78853-1246

Letter Opinion No.  93-68 

 

Re:    Whether a county commissioner who 

has been removed from office for a felony 

conviction that is overturned on appeal is 

entitled to receive (1) the cash equivalent of 

premiums for health insurance covering the 

commissioner that the county would have 

paid if it had not terminated the 

commissioner's insurance while his case was 

pending and (2) the amount of past 

contributions the county has made on his 

behalf to his retirement plan    (ID#  18456)



 

Dear Mr. Pereda: 

 

	Your request letter involves a former county commissioner of your county who 

was convicted of a felony in September 1988 and subsequently was removed from office, 

apparently because of the felony conviction, by order of the district judge.  The former 

county commissioner (the "commissioner") has demanded payment from the county of 

(1) the cash equivalent of premiums for health insurance covering the commissioner that 

the county would have paid if it had not terminated the commissioner's insurance upon 

his removal from office and (2) the amount of past contributions the county has made on 

his behalf to his retirement plan before his removal from office and contributions that the 

county would have made on his behalf to his retirement plan after his removal if he had 

remained in office. 

 

	According to your request letter, while the commissioner's criminal case was on 

appeal, the county deposited into an escrow account the commissioner's gross salary 

(without deducting taxes or the commissioner's five percent contribution to his retirement 

plan) but did not escrow its matching five-percent portion of the contribution to the 

commissioner's retirement plan.  Upon the commissioner's removal from office, the 

county terminated the commissioner's health insurance and ceased paying his health-

insurance premiums. 

 

	In 1991, the commissioner withdrew all funds from his retirement account in the 

Texas County and District Retirement System, excluding the funds that the county had 

contributed before the commissioner's conviction as the county's portion of his retirement 

contributions.  In 1992, the commissioner's conviction was reversed and an order of 

acquittal was rendered.  He then, on or about November 12, 1992, requested and was 

paid all the funds in the escrow account plus interest. 

 

	The commissioner now has sent your county a letter demanding that the county 

pay him the amount of all the county's matching portion of his retirement contributions 

and all the health-insurance premiums that the county would have paid if he had not been 

removed from office.  The letter states the commissioner's belief that the demanded 

fringe benefits "come with the wages" due him as an elected official. 

 

	We first understand you to ask whether the commissioner is entitled to be paid the 

amount of health insurance premiums that would have accrued if his insurance had not 

been terminated.  We assume, without deciding, that the commissioner would have been 

entitled to health insurance coverage during some period following the termination of his 

insurance and, accordingly, that the county would have been obligated to pay his 

insurance premiums during that period.  You state without citation to authority that 

county employees are not entitled to receive cash payment in lieu of health insurance 

premiums if those employees choose not to be covered by the insurance.  This office 

concluded in Letter Opinion No. 92-85 (1992) that a county commissioners court may 

not offer county employees a choice between health-insurance coverage or a cash 

payment in lieu thereof.  We assume that your county has not made such an offer to the 

commissioner.  Your request does not say when, if ever, the commissioner chose not to 

be covered by health insurance. 

 

	Even assuming that the commissioner did not choose not to be covered by health 

insurance, we find no merit in his contention that the unpaid insurance premiums 

somehow are due him.  Because the benefit to a covered employee is not the amount of 

the health insurance premiums paid but rather is the reduction in costs payable by the 

employee for covered care, the amount of damages for any breach by the county of an 

obligation to insure the commissioner would be based on costs of care that would have 

been covered by insurance rather than on the amount of the unpaid premiums.  We need 

not address whether there was any breach of any obligation to continue insuring the 

commissioner because he has not alleged damages (costs incurred as a result of lack of 

insurance) that would entitle him to money from the county.  We conclude that the 

commissioner is not entitled to compensation for the premiums that would have been 

paid had his health insurance not been terminated. 

 

	We also understand you to ask whether the commissioner is entitled to receive 

cash payment of the amount of matching contributions the county has made on his behalf 

to his retirement plan before his removal from office and contributions that the county 

would have made on his behalf to his retirement plan after his removal if he had 

remained in office.  You state without citation to authority that during the period in 

which the





county was not depositing its portion of retirement contributions into the commissioner's 

escrow account, both portions were required to be deposited under the Texas County and 

District Retirement System (the "retirement system"). 

 

	Regardless of whether the county was obligated to deposit a matching portion 

under the retirement system, the commissioner is not entitled to such funds by virtue of 

the law governing the system.  Section 842.108 of the Government Code provides: 

 

	A person who is not an employee of any participating 

subdivision and who has not retired may, after application, 

withdraw all of the accumulated contributions credited to the 

person's individual account in the employees saving fund, and the 

retirement system shall close the account. 

 

The commissioner invoked this section in 1991 when he withdrew all funds from his 

account.  The "employees saving fund" is comprised of the types of deposits listed in 

section 845.306 of the Government Code; none of those items include the county's 

matching contribution.  We conclude that the Government Code does not support the 

commissioner's claim of entitlement to the matching contributions that have been or 

should have been made for his benefit. 

 

	Your letter asks us whether the county is further obligated to the commissioner.  

We regret that we cannot answer this question because it would involve fact questions, 

which we are not authorized to resolve in the opinion process.  For example, the county 

might be further obligated to the commissioner if his removal from office was wrongful 

and was the proximate cause of his lost health-care coverage and retirement benefits.  

The information you have given us does not on its face present a question of the county's 

further obligation to the commissioner as a matter of law; we find nothing in the 

Government Code that requires further payment to the commissioner. 

 

S  U  M  M  A  R  Y 

 

	A county commissioner who has been removed from office for 

a felony conviction that is overturned on appeal is not entitled to 

compensation for health-insurance premiums that would have been 

paid had his insurance not been terminated.  Because the 

commissioner withdrew all of the accumulated contributions 

credited to his individual account in the employees saving fund after 

being removed from office, the Government Code does not support 

the commissioner's claim of entitlement to any matching 

contributions that the county did make or should have made to the 

County and District Retirement System for his benefit. 

 

	The question of whether the county is further obligated to the 

county commissioner involves issues of fact and therefore is beyond 

the scope of the opinion process. 

 

						Yours very truly, 

 

 

 

						James B. Pinson 

						Assistant Attorney General 

						Opinion  Committee 





ID#  18456- 

LDB 

 

LO- 

 

 

 

INDEX HEADINGS 

COMPENSATION 

COUNTY COMMISSIONER 

COUNTY BOARDS, COMMISSIONS, DEP'TS OFFICIALS 

	TEX. COUNTY AND DISTRICT RETIREMENT SYS. 

RETIREMENT 

______________  

 

 

 



  

(footnote continued) 

 

Mr. Carlos A. Pereda, Jr.  -  Page  3