The legal landscape is constantly changing with our society and technology. Counties are often called upon to be the “first responders” to new needs and opportunities. Counties try to provide the services needed by our citizens in a responsible, efficient manner. However, counties, unlike cities, have no general ordinance power. Our programs must be authorized by the Texas Constitution and statutes. Whenever new programs are proposed, we need to proceed with caution unless the underlying authority is clear. Two new programs are analyzed below.
Speed Cameras
Technology has developed the means of recording vehicle speed and a video record of the vehicle license number using unmanned cameras. With this technology, vehicles exceeding school zone speed limits and passing stopped school buses can be identified. However, the identity of the driver is not established.
Private companies have approached counties proposing to use their equipment to identify the registered owners of these vehicles and issue a civil citation to the owner and collect fees for these violations from the vehicle owner, with loss of registration of the vehicle as a possible penalty for non-payment. Unfortunately, we cannot identify a statute, court decision, or attorney general opinion that specifically authorizes this program. The Legislature has expressly prohibited these programs in municipalities.
If your county is considering this program without obtaining clear authority from the Legislature, the courts, or the attorney general, you should consider the following precautions: 1) Escrow all fees collected for at least two years; 2) Obtain a Coverage Letter from your insurance carrier affirming that your county and its law enforcement and public officials have liability coverage; 3) Obtain an Indemnification Agreement from the private equipment company.
Nursing Homes
Healthcare funding is also a complex and changing issue. The Medicaid 1115 Waiver program has presented an opportunity for public-owned nursing home facilities to obtain additional federal funding through the Upper Payment Limit (UPL) program. Some existing facilities are approaching counties or county hospitals and proposing to transfer their nursing home ownership to the county or county hospital and lease the facility to obtain the additional federal funds. Statutory authority exists for a county to own a nursing home facility located within the county or an adjacent county. However, some companies are proposing that counties assume ownership of facilities located in other parts of the state. No statute clearly authorizes county ownership of a facility in other areas of the state. In any case, ownership of a nursing home facility, even with a lease for operations, is likely to bring issues and litigation. Be certain that you have liability coverage through your insurance carrier and an Indemnification Agreement with the nursing home operator.
Any program that will provide a benefit to a private party will likely involve some risk to the county. Evaluate these proposals carefully and obtain experienced legal advice before proceeding.
For more information, please call me at 1-800-733-0699.