IF NOT SYLVIA, WILL ARNOLD BE NEXT COUNTY CLERK?

By Juan Montoya
There's been a glitch in the posting of $400,000 by four individuals to pay for the $500,000 performance bond of Cameron County Clerk-elect Sylvia Garza-Perez.
As our three readers have read here, for some unknown reason that many speculate may have to do with a loan default or possibly a possible court judgment against her, no local surety companies have agreed to issue the required coverage.
She was able to secure only $100,000 of the state-required $500,000.
Then, as of late Thursday, word out on the corridors of the courthouse was that she had acquired the addition $400,000 through the posting of the remaining money from four individuals – City of Brownsville Mayor Tony Martinez, Arvan Tucker, Butch Barbosa and one other unnamed individual.
But now we have learned that the county's legal counsel is insisting that the surety be made in cold hard cash and not in property or other collateral or it cannot be accepted.
This last Wednesday all the newly elected officials gathered at the Dancy Building to take their oath of office administered by county clerk Joe Rivera. Noticeably absent from the group was Garza-Perez, who could not take the oath because she could not secure a bond.
State law requires that "If a bond is required the taking of the official oath must be endorsed on the bond."
Before beginning to perform the duties of office, the county clerk must execute a bond either with four or more good and sufficient sureties or with a surety company authorized to do business in the state as a surety. In lieu of the bond, the county may self-insure against losses that would have been covered by the bond. The bond must be approved by commissioners court, made payable to the county, conditioned that the clerk will faithfully perform the duties of office, and in an amount equal to at least 20 percent of the maximum amount of fees collected in any year during the term of office preceding the term for which the bond is to be given, but not less than $5000.00 nor more than $500,000.00. If a bond is required the taking of the official oath must be endorsed on the bond. The bond oath shall be recorded in the county clerk’s office and deposited in the office of the clerk of the district court.
We have it on good information that a majority of the county commissioners are against voting for the county to set aside $400,000 to insure Garza-Perez since they could not justify this to their constituents. And waiting in the wings in case that she cannot satisfy state requirements is Arnold Flores, the runner-up to Garza-Perez in the Democratic primary who we understand is already bonded.
Further, a majority of the commissioners aren't comfortable with accepting the sureties offered by Martinez, Tucker and Barbosa because of the huge potential for conflict of interest.
Martinez is the mayor of Brownsville and holds countless properties in the city that have to be recorded with the county clerk. Additionally, in the course of doing the public's business, conflicts between the county and city may arise which may give the appearance of favoritism between the county clerk and the mayor of the city.
In the case of Barbosa, who is said to have been picked by Garza-Perez as her chief of staff, the conflict is even more severe. How can an employee of an elected official post a surety bond on his boss when she must administer the office – and all matters of personnel discipline and compensation – equitably and fairly when she is indebted to one of her employees?
In the case of Tucker, an auditor with the City of Brownsville, other questions pertaining to having a county clerk in his debt would surely arise.
Those tangible potential economic conflicts of interest pale in comparison with the political ramifications of having the county clerk indebted to four people for $100,000 a piece. While no one is saying the contributing of that money to an elected official constitutes a bribe, there is major historical precedent for that assumption.
The Texas Association of Counties states in its manual that the oath of office first appeared in the Constitution of 1845. The manual states that the clause requiring a denial of bribery first appeared in the present Texas constitution and was the direct outcome of the official corruption which had reached alarming proportions during the reconstruction period.
As it relates to oaths, the Texas Government Code provides that the official acts of a person who fails to qualify as an officer are void.
Additionally, a person who has not qualified for office is not entitled to receive payment as the officer or exercise the powers or jurisdiction of the office. Without having qualified for office, a person has no right to the position.
However, where an officer has taken the oath and given a bond, which has been accepted without objection and not questioned at any time during the term, the officer may nonetheless be held to be a de jure officer even if the qualification was not in strict compliance with the law.
When it comes to bonds, Texas law requires that officials required by law to give an official bond shall file the bond with the officer’s oath of office.
Generally, the required bonds must be given before an officer begins performance of any duties of office. An officer who is required by law to give an official bond and who fails to execute the bond within the time prescribed by law may be removed from office.
In the end, it will be up to the commissioners court to decide whether Garza-Perez's oath and bond are sufficient for her to take office. But even here, state law trumps the commissioners' acts.
Texas law states that "Before beginning to perform the duties of office, the county clerk must execute a bond either with four or more good and sufficient sureties or with a surety company authorized to do business in the state as a surety.
"In lieu of the bond, the county may self-insure against losses that would have been covered by the bond. The bond must be approved by commissioners court, made payable to the county, conditioned that the clerk will faithfully perform the duties of office, and in an amount equal to at least 20 percent of the maximum amount of fees collected in any year during the term of office preceding the term for which the bond is to be given, but not less than $5,000 nor more than $500,000. If a bond is required the taking of the official oath must be endorsed on the bond. The bond oath shall be recorded in the county clerk’s office and deposited in the office of the clerk of the district court."
The question then becomes: Given that there is no precedent in Cameron County of the court accepting "four or more good and sufficient sureties," or of self-insuring a county clerk, will the commissioners go out on a limb to have Garza-Perez take office and put the taxpayers' money at risk for her?
This Monday, there will be a special meeting called by the commissioners court but there is no item relating to the Garza-Perez issue on it. Unless an item is posted for another special meeting before the year is up, it may be difficult for Garza-Perez to take her office. In any case, Flores is waiting in the wings.