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Packing PAC money in union dues: guidance from the Bexar County deputies

Bexar deputies' PAC contributions from payroll deductions allowed, for now
Bexar deputies' PAC contributions from payroll deductions allowed, for now
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The other shoe dropped this month in a disagreement between Bexar County and the Deputy Sheriff's Association of Bexar County.

Fourth District Court of Appeals Justice Marialyn Barnard filed a dissenting opinion March 19, claiming the majority panel should have allowed Bexar County to have its case reheard.

The county was on the losing side of a January 22 opinion in which Chief Justice Catherine Stone said the county could not refuse to forward money through payroll deductions to the union, even if it included money later used for the political action committee of the Combined Law Enforcement Associations of Texas.

Since 2006, the association has been collecting membership dues through payroll deductions. Some deputies contribute $40 and some contribute $50 per month.

One day, the county auditor found out that sawbuck difference was going to the CLEAT PAC. The auditor refused to process deductions in excess of the $40-minimum membership dues.

The association went to trial court and obtained a declaratory judgment ordering the county to process both types of deductions.

The law at issue is in Sect. 155.001(a)(2) of the Texas Local Government Code. It says a commissioners' court may authorize a payroll deduction for "payment of membership dues in a labor union or a bona fide employees association."

Since the law does not specify authorization for PAC contributions, the county argued it couldn't process a deduction for that purpose. That is essentially the same argument Barnard made last week.

Stone, however, said the Legislature had not defined "membership dues" and no Texas court has interpreted the term in any context. Absent a way to review legislative intent or case law, Stone did what any legal mind would do. She went to the dictionaries.

Webster's 2002 edition: "the fee or charge required for membership, affiliation, initiation, use, subscription."

"It is clear that a 'membership dues' is not, as the county contends, strictly the minimum amount required to maintain membership in an organization," Stone wrote. "Rather, 'membership' is the 'status' of being a member and a due is the 'fee ... required.' for that status."

Nothing in the definition forbids a union maintaining multiple tiers of membership status, she said. Therefore, a membership due is any amount paid in exchange for a certain status.

The county said the extra $10 can't be a membership due if it is subsequently reported by the PAC in the individual member's name.

"We disagree," Stone said. And by that she meant herself and Justice Patricia O. Alvarez, the third robed one on this tribunal. "The statute concerns only the character of a payment at the time of the payroll deduction, not a the time of some subsequent disposition."

No one disputes that a union has a right to make PAC contributions derived from membership dues, Stone said. So, what's the problem?

Barnard is stuck on the definition of membership dues. Until the Legislature amends the law, Barnard contends, payroll deductions for PAC contributions are not permitted.

She accused her peers of expanding "the plain meaning of the language 'payment of membership dues.' In other words, they engaged in that no-no that makes conservatives howl 'judicial activism' when it is convenient for them.

The dissent gives Bexar County ammunition in the event it should care to appeal to the Texas Supreme Court. And why wouldn't a court that is 100 percent Republican Party loyalists want to entertain a case that would make life harder for a union?

Still, there's a chance this is the end of the issue for now. Jurisdiction on appeal is not some wide open gate. There is no conflict between the mid-level appellate courts and no certified question being proffered. But I wouldn't put it past this Supreme Court to turn down the case if the county offers it.

Meanwhile, the county also lost on the attorney's fees motion. Stone upheld the trial court's ruling, which means the association attorneys are entitled to $30,706.52. David Van Os, the "Peoples' Democrat" and Austin civil rights attorney worked this case for the association.