TPA Hotline June 2015

Q&A: Checks endorsed to deceased man still get cashed

Q: Our county is making out checks to a known-to-be-deceased person for goods and services. A living person is cashing the checks. How do I know? Because my open records requests to obtain copies of the checks have been fulfilled. And what really torques me is that no one in a position of authority, including the district attorney, will tell me if there is an investigation in progress. Any suggestions?

A: In the Frequently Asked Questions section of the Texas Attorney General’s “What the Attorney General Can Do for You” web page, there is a generic question: “I think my local officials are breaking the law. What should I do?” The generic response is: “Share your concerns with your local county or district attorney. These officials have the authority to prosecute criminal wrongdoing.”

So, if you have already questioned the district attorney and gotten nothing in response, you’ve established that doing what the AG suggests won’t help.

Remember, however, it’s not unusual for a newspaper in the practice of libel avoidance to hold off on publishing allegations of wrongdoing until formal charges have been filed. A typical way to move forward is to continue building your file for a potential story and continue to press the district attorney to confirm whether an investigation is in progress or not.

If you are convinced that your local officials are derelict in their duty and you have no official complaint or confirmation of an investigation to form the basis for a news story, you could bring your concern to the attention of the Texas Department of Public Safety. 

You also could hail your state representative and/or state senator to find out if they have heard anything and to solicit their input. Even though each House member represents about 185,000 people and each Senate member represents about 900,000 people, you can imagine your legislators want to know if there is anything cattywampus within their district boundaries. 

Q: New ad copy arrived today from a local small business retailer to promote a sale on cigarettes. Are there new requirements to obey?

A: On the U.S. Food and Drug Administration web page, fda.gov, click the Tobacco Products tab to find a trove of cigarette advertising requirements and information. You will find the following wording, under Label Requirements: 

It shall be unlawful for any person to manufacture, package, sell, offer to sell, distribute, or import for sale or distribution within the United States any cigarettes the package of which fails to bear, in accordance with the requirements of this section, one of the following labels:

WARNING: Cigarettes are addictive.

WARNING: Tobacco smoke can harm your children.

WARNING: Cigarettes cause fatal lung disease.

WARNING: Cigarettes cause cancer.

WARNING: Cigarettes cause strokes and heart disease.

WARNING: Smoking during pregnancy can harm your baby.

WARNING: Smoking can kill you.

WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.

WARNING: Quitting smoking now greatly reduces serious risks to your health.

Q: Our incumbent mayor withdrew from the election after the ballots were printed. Is a candidate who withdraws and whose name still appears on the ballot considered a write-in candidate? I am writing an editorial about this situation, hoping to alert voters. 

A: Let’s look at Texas Election Code Section 145.005. EFFECT OF VOTES CAST FOR DECEASED, WITHDRAWN, OR INELIGIBLE CANDIDATE:

(a) If the name of a deceased, withdrawn, or ineligible candidate appears on the ballot under this chapter, the votes cast for the candidate shall be counted and entered on the official election returns in the same manner as for the other candidates.

(b) If the deceased, withdrawn, or ineligible candidate receives the vote required for election, the resulting vacancy shall be filled in the regular manner.

(c) If the deceased, withdrawn, or ineligible candidate and another candidate tie for the most votes in an election in which a plurality vote is sufficient for election, the other candidate is considered to be elected. If more than one other candidate is tied with the deceased, withdrawn, or ineligible candidate, the winner of the election shall be determined by resolving the tie between the other candidates in the regular manner for resolving a tie vote in the election.

(d) In a race in which a runoff is required, if the deceased, withdrawn, or ineligible candidate received the vote that would entitle the candidate to a place on the runoff election ballot or tied for that number of votes, the candidates in the runoff shall be determined in the regular manner but without regard to the votes received by the deceased, withdrawn, or ineligible candidate.