County Focus – Page 3

Wichita County Indigent Defense Costs Rise 202 Percent Since 2001

August 5, 2016 by Bailey LeRoux

Times Record News

The Fair Defense Act of 2001 provided substantial improvement to the indigent defense system in Texas, but a vast majority of mandated expenses continue to fall on individual counties.

Data from the Texas Indigent Defense Commission (TIDC) shows that in the past 15 years, indigent defense spending in Wichita County – the money to hire lawyers for criminal suspects who can’t afford to hire their own – increased by 202 percent from $0.8 million in 2001, to $2.3 million in 2015. Statewide costs for indigent defense also rose 160 percent, but counties only receive a fraction of these dedicated funds. The first effort to bridge this spending gap since the act began in 2001 came from the 84th Legislature, which approved $7.5 million to be allocated over the following two years to aid indigent defense.

Total spending for 2015 for indigent defense in Texas was $238 million, with counties picking up an average 88 percent of the cost. In Wichita County, the state pays about 10 percent, and the county covers the remaining 90 percent.

According to a 2010 report by The Spangenberg Project through the Center for Justice, Law and Society at George Mason University, Texas is one of 18 states in which counties continue to foot the bill for more that 50 percent of indigent defense costs. More than two-thirds of states have some form of state-level oversight, but only 23 states fully fund their indigent defense systems.

In 2014, TIDC Executive Director Jim Bethke reported that the Texas Judicial Council adopted a resolution for more state funding toward indigent defense. The project is still under consideration, but could bring some relief to counties by way of more state-level funding.

About 18 months ago, Wichita County benefited from a four-year discretionary grant that was used to hire a mental health caseworker. Shawnee Lofland works with the public defender’s office to identify and assist the more serious mentally ill people who enter the justice system.

Public Defender James Rasmussen said Lofland has been a tremendous benefit to the indigent defense system and the Public Defender’s Office. He said Lofland is able to work with community services like the Helen Farabee Center and the state hospital to get people connected with the services they need.

Unfortunately, the grant that made Lofland’s position available is coming to a close. Wichita County Judge Woody Gossom requested funding for the position beyond the four-year grant, but was told by the TIDC that additional funding would not be possible at this time. Gossom said Lofland’s work has more than paid for itself in time and effort saved, and the county hopes to keep her on staff with or without additional funding.

Bethke said several Texas counties have submitted requests for enhanced state funding for indigent defense and associated services. Gossom said there will probably not be any changes for 2017, but there may be a possibility of additional state funding for indigent defense beginning in 2018.

The need for additional funding for criminal defense is not just a Texas problem. In January, a group of New York state senators submitted a bill that would require the state to pay for all indigent defense services. The bill claims that since the Gideon vs. Wainwright decree in 1963, the state has put a majority of the cost of indigent defense on the counties. They claim defendants in counties with inadequate funding could receive “unconstitutionally substandard representation.” In 2013, indigent defense costs in New York totaled some $359 million with the state contributing $82 million. HH – Reprinted with permission from the Wichita Falls Times Record News, http://www.timesrecordnews.com/.

County Focus: County Extension Agents

April 4, 2016 by Bailey LeRoux

County Extension Agent

When Texas residents interact with a County Extension Agent, they are interacting – by extension – with the Texas A&M University System. That became clearer with the addition of “A&M” to the name of the agency that oversees County Extension Agents, now called the Texas A&M AgriLife Extension Service. The change became effective Sept. 1, 2012, by action of the Texas A&M University System Board of Regents.

As an education agency, the Texas A&M AgriLife Extension Service has a mission “to improve the lives of people, businesses, and communities across Texas and beyond through high quality, relevant education.” In fulfilling this mission, AgriLife Extension has been a provider of lifelong learning and problem-solving for nearly 100 years.

Critical to Extension’s capability is a corps of skilled educators called County Extension Agents. In Texas, these resident educators are positioned in 251 counties to serve families, youth, and communities in all 254 counties.

This local presence is supported by a group of Extension Specialists and other professionals at Texas A&M University and 12 district centers across the state. Together, the agents and specialists have expertise and conduct public programs related to the broad areas of food and fiber systems, natural resources and the environment, human nutrition and health, family and consumer sciences, 4-H and youth development, and community economic development.

AgriLife Extension arose from the concept that practical, research-based knowledge should be made available to people throughout their lives. The federal Smith-Lever Act of 1914 authorized Extension education as a function of the land-grant university system of teaching and research.

Extension education in Texas originated in 1915 when the Texas Legislature passed House Concurrent Resolution No. 2 to accept the federal provisions and assign Extension functions to both the state’s land-grant colleges, namely Texas A&M University and Prairie View A&M University. In 1917, as indicated in Article 164 of Vernon’s Civil Statutes, County Commissioners Courts became cooperators with AgriLife Extension’s predecessor, thus forming the county, state, and federal partnership that continues today. Nationally, this unique structure is known as the “Cooperative Extension System.”

Depending on local circumstances, Extension county offices have one or more agents, hired by the Extension supervisor in collaboration with Commissioners Courts. Typically agents are employed to work in a particular program area, but once on the job, agents work together to address issues that cut across these areas. In some counties, an Extension agent may serve as a specialized educator offering programs about subjects such as integrated pest management, horticulture, and marine sciences.

It is imperative for Extension county faculty to possess the technical skills and educational background to be effective Extension educators. One qualification is a master’s degree in agriculture, family and consumer science, education, science/technology, or another field relevant to Extension programming. Applicants with a bachelor’s degree will be considered based on their agreement to complete a master’s degree within eight years of employment.

The position also requires a desire to work with people of diverse backgrounds and to grow and develop as an Extension professional; ability to work independently and as a team member; character and personal traits that merit a position of public trust; and ability to become an effective teacher of youth and adults.

AgriLife Extension has researched the competencies needed for success in staffing a wide range of agent positions. For specific positions, the hiring supervisor will analyze these findings and local needs, and determine the educational and professional qualifications that best suit each vacancy. County Commissioners Courts are directly involved in making the final selection to fill a vacant position.

Commissioners Courts as well as county residents also provide critical input in the planning of local Extension programs. Residents in each county decide what Extension should do for them and guide the planning of implementation. This is accomplished through a periodic needs assessment and through citizen-led advisory boards and program committees. More than 12,000 citizens serve on these groups annually, working in coordination with County Extension Agents.

In addition, Extension engages in ongoing communications at all levels with commodity groups, state and federal agencies, and local and regional planning groups and leaders.

Based on identified issues and priorities, key educational areas are determined in which to focus development of new Extension program pilots, curricula and resources, all of which are available to each Extension county office. However, the combination of programs implemented locally may range from “traditional” to “cutting edge,” given the varying needs, stages of adoption, and creativity of local citizens and communities.

County Extension Agents historically have employed demonstrations of new technology, including applied and/or adaptive research, on farms and ranches as well as in the home. Several methods are used to facilitate learning for large audiences, including meetings, field days, workshops, short courses, newsletters, teleconferencing, online interactive programs, and the use of volunteers and the media.

In addition, County Extension Agents are supported by a diverse array of program models, land-grant university resources, and an Extension organization with broad experience, all dedicated to education and committed to enriching lives and building better communities.

For more information on the role of County Extension Agent or other county government topics and issues, please contact the Texas A&M AgriLife Extension Service through its V.G. Young Institute of County Government.

– By Darrell Dromgoole, Associate Professor and Extension Specialist, and Jeff Ripley, Associate Director for County Operations, Texas A&M AgriLife Extension Service

County Focus: County Health Authority

March 1, 2016 by Bailey LeRoux

County Progress kicked off our January 2016 coverage with the county constable. We continued in February with the juvenile probation department, and this month we address the county health authority.

History

The Texas Legislature has delegated counties and municipalities the power to appoint one physician as the county health authority within their jurisdiction. Counties and municipalities with health departments appoint the medical director as the local health authority. Those without health departments appoint a local physician in private practice as the health authority. The director of a regional office of the Texas Department of State Health Services (DSHS) may serve as the health authority of a municipality or county within that region, at the request of the Texas Board of Health (Board).

The county health authority is appointed by the County Commissioners Court to a two-year, renewable term of office.

Constitutional Authority

The sovereign state of Texas has the right and function to protect its citizens by enacting laws to promote order, safety, health and the general welfare of its people. Public health laws are an exercise of the “police power.” However, individual rights must be respected by due process, which dictates that:

the action must be for the public good, and
the action must be reasonable.

However, individual rights must give way to the general welfare of the public. In most instances, public health laws are enforced by a court order that is granted after a consideration of the medical and other facts in the case, taking into account no more inconvenience to the individual than is necessary.

Legal Authority

The county health authority is a competent physician legally qualified to practice under the laws of the state of Texas and of reputable professional standing. This physician is appointed under the provisions of Chapter 121 of Vernon’s Civil Statutes Health and Safety Code to administer state and local laws relating to public health within the appointing body’s jurisdiction. The health authority must take and subscribe to the official oath and file a copy with the Board.

The health authority advises the Commissioners Court or city officials on health-related matters and also enforces laws that protect the health of that jurisdiction. The local health authority is assisted by DSHS regional staff in epidemiological investigations, and in providing certain laboratory and public health nursing services. The medical judgment of the health authority guides health law enforcement.

General Duties

The health authority:

> establishes, maintains and enforces quarantine in the health authority’s jurisdiction;

> aids the Board in relation to local quarantine, inspection, disease prevention and suppression, birth and death statistics, and general sanitation;

> reports the presence of contagious, infectious, and dangerous epidemic diseases to the Board in the manner and at the times prescribed by the Board;

> reports to the Board on any subject on which it is proper for the Board to direct that a report be made; and

> aids the Board in enforcing the following within the jurisdiction of the health authority:

proper rules, requirements, and ordinances;
sanitation laws;
quarantine laws; and
vital statistics collections.

Local Duties

The health authority also must serve the Commissioners Court, which may take action or adopt rules necessary or expedient to promote health or suppress disease; to prevent the introduction of a communicable disease into the community; establish, maintain and regulate hospitals; and abate nuisance injurious to the public health. The court may fine a person who fails or refuses to observe the orders and rules of the health authority.

Specific Duties

The Texas Communicable Disease Prevention and Control Act specifies tasks which the health authority must accomplish in disease prevention, reporting and investigation, disease control, powers to suspend elective hospital admissions, limitation of liability of those in compliance, exemptions based on religion, prohibited acts, and quarantine.

The health authority is responsible for abatement of nuisances in the environment as defined in the Minimum Standards of Sanitation and Health Protection Measures.

The health authority may also be appointed by the court as the officer for the purpose of the Rabies Control Act, or an independent officer may be appointed. However, professional direction is provided by the physician health authority.

The health authority has special responsibilities according to the provisions of the Texas State Disaster Plan in disaster planning, disaster drills, response to disasters, disaster operations, disaster coordination response, damage assessment, public information and rendering reports.

The health authority also is required to sign official documents to warrant that nursing homes, custodial care homes, maternity care homes, and other similar facilities are healthful habitations for residents, which affords an opportunity for local government intervention.

Any trade, occupation, or profession can be regulated in the interest of public health, such as roadside food vendors and public pool operators, and enforced by the health authority.

Ultimately, the county health authority is responsible for establishing, maintaining, and enforcing laws relating to the general welfare and health of the local public.

– By A.C. Walkes, M.D., Jefferson County Health Authority

County Focus: County Constable

January 8, 2016 by Bailey LeRoux

Years ago, County Progress published a special series of articles to help acclimate new officials to Commissioners Court: County Focus. This set of descriptive writings authored by experts in the field covers the varied offices and departments that make up county government. What are the responsibilities of the Commissioners Court? How about the county treasurer? Who is in charge of emergency management? What job functions are assigned to the county clerk? We’ve got the answers in this comprehensive set of articles.

In our latest readership survey, we were asked to publish this series once again. We updated each article as necessary and launched County Focus in March 2015 with the County Judge and the County Commissioner. April included the justice of the peace and the county court at law, and May featured the tax assessor-collector. In June, we covered the county treasurer and the auditor, and July addressed the county road administrator and the county engineer. August featured the county purchasing agent, and September spotlighted the emergency management program/coordinator. In October, we examined the county clerk and the district clerk, and November covered the county sheriff. In December, we described the office of the county attorney. We continue our County Focus series with the county constable.

County Constable

The term “constable” originates from the medieval title of an important official in the days of the Eastern Roman Empire called “comes stabuli.” In old France, “comes” was defined as an officer and a count, and “stabuli” was defined as an officer of the stable, chief equerry

or marshal, generally of the “stabulum” stables. During that period of time, the constable was chief officer of the king’s household and court and often acted as commander in chief of the army, second only to the king.

Constables in England can be traced back to the kingdom of Alfred the Great who reigned from 871 to 899 A.D. In about 1066, King William the Great divided England into 55 districts and appointed constables to keep the peace within these districts.

By the 1620s, the colonies had been divided into counties that became the most important units of local government. The first American constable was appointed in 1632 to assist the justice of the peace in dispensing justice, enforcing the orders of colonial and county officials in both civil and criminal matters and collecting taxes.

Constables in Texas can be traced back to 1823 when Texas was under Mexican rule. The Mexican government authorized Stephen F. Austin, who had been settling large numbers of individuals along the Colorado and Brazos rivers, to create seven districts with an appointed sheriff over the entire colony and appointed constables for each district.

The first constables were elected in precincts of 500 inhabitants in 1828. Constables were included in the Texas Constitution of 1836 and remained until the reconstruction period following the Civil War. Constables were again included in the Texas Constitution of 1876, and most have survived to the present day.

There are currently about 800 constables in Texas ranging from as many as eight constables in the most populous counties to one constable in many sparsely populated counties, and no constables for a few counties where the office has been abolished by constitutional amendment.

Texas constables derive their authority from the Texas Constitution and Texas statutes. Section 18, Article V of the Texas Constitution establishes constables as elected precinct officers. Article 2.12, Texas Code of Criminal Procedure, designates constables as “peace officers.” Chapter 86, Texas Occupations Code, also directs constables to serve as bailiffs and serve papers issued by justice courts.

As certified Texas peace officers, constables must complete required training for all peace officers and pass the Texas Commission on Officer Standards and Education (TCLEOSE) exam. Deputy constables must be TCLEOSE-certified upon assuming their duties, while the Occupations Code gives elected constables up to 270 days after taking office to obtain certification. Constables and their deputies must also complete at least 20 hours of continuing civil process education training every four years.

Texas constables and justices of the peace are commonly referred to as the offices closest to the people. Their duties vary widely throughout Texas and are based on the needs of individual counties and the ability and willingness of Commissioners Courts to provide funding.

Many constables in Texas enforce traffic laws and patrol neighborhoods. Constables also perform criminal investigations for drug violations, identity theft, truancy and other criminal matters.

With the support of the Harris County Commissioners Court, constables implemented the Absent Student Assistance Program to reduce truancy, and other counties were quick to follow suit. Another innovative program is the “Are You Okay?” program where constables check on elderly and disabled individuals in their precinct to make sure they do not require emergency services.

Travis County administers a Citizens Handicap Parking Enforcement Program. The key to the success of these and many other innovative constable programs is that there is a demonstrated need for the program and a positive working relationship between constables and their Commissioners Courts.

The Justices of the Peace and Constables Association of Texas (JPCA) strongly believes that all elected officials should be performing services that are of value to their counties and be qualified and properly trained to carry out their responsibilities. To that end, we encourage our colleagues to work closely with their constituents, county departments and Commissioners Courts to identify unmet needs and develop strategies to meet the needs of their communities.

In 2001, the JPCA worked with the County Judges and Commissioners Association of Texas to pass HJR2, a constitutional amendment that authorizes Commissioners Courts to declare a constable’s office “dormant” in counties where no candidates have run for two terms, and legislation requiring elected officials to use the salary grievance committee before pursuing litigation.

The JPCA also has lobbied to limit county liability by requiring that constables be qualified and trained to enforce civil and criminal laws upon assuming their duties.

– By Former Travis County Constable Bruce Elfant

County Focus: County Attorney

December 4, 2015 by Bailey LeRoux

County Focus Series

In our latest readership survey, we were asked to publish this series once again. We updated each article as necessary and launched County Focus in March with the County Judge and the County Commissioner. April included the justice of the peace and the county court at law, and May featured the tax assessor-collector. In June, we covered the county treasurer and the auditor, and July addressed the county road administrator and the county engineer. August featured the county purchasing agent, and September spotlighted the emergency management program/coordinator. In October, we examined the county clerk and the district clerk, and November covered the county sheriff. This month, we take a look at the county attorney.

COUNTY ATTORNEY

Like other offices, that of the county attorney is constitutionally established, unless the county has created a criminal district attorney, in which case the office of county attorney is abolished. If there is both a district attorney and a county attorney, the county attorney prosecutes misdemeanor offenses, and the district attorney handles felonies. However, some counties have a county attorney with felony responsibility.

A variety of statutes govern the duties of the county attorney. Under the Code of Criminal Procedure, he or she must prosecute misdemeanor criminal cases, i.e., those offenses filed in the county court, county courts at law, and justice courts. In the absence of the district attorney, he or she shall represent the state, and may also aid the district attorney in district court.

Texas statutes are replete with unique offenses that the county attorney is required to enforce, such as election violations, vice laws, “going-out-of-business” sale violations, and liquor law offenses. The county attorney also may act as the juvenile prosecutor, where cases will primarily involve felony offenses.

Under the Local Government Code, the county attorney may represent county officials and employees in lawsuits related to their duties. On request, the county attorney is additionally required to give a written legal opinion to any county official concerning that official’s duties. Also, the county attorney may represent the county in collecting delinquent taxes, and is mandated to collect delinquent motor vehicle inventory taxes. The Transportation Code requires that the county attorney file suit for collection of delinquent assessments against property owners for construction of drainage ditches and adjoining roadways, as well as for damages to a closed roadway or bridge caused by a driver.

A number of other statutes authorize the county attorney to take such actions as obtaining injunctions against public nuisances, prosecuting public officials guilty of some offense or malfeasance, and enforcing deed restrictions in larger counties. Texas statutes also permit the county attorney to retain under his or her control a hot check collection fee fund, which may be used solely to defray salaries (other than the county attorney’s) and expenses of the office.

Primarily, the county attorney is charged with enforcement of criminal statutes and does not represent the county in its general legal business or the conduct of ordinary civil actions. Because of this, county officials may hire private counsel so long as that action does not usurp the statutory authority of the county attorney.

Chapter 45 of the Texas Government Code reserves to each county a statute that may be used to more specifically define the duties of the county attorney, including representing the county in civil matters, although very few county attorneys have been assigned this duty. Chapter 46 of that Code, the Professional Prosecutors Act, also allows the county attorney to accept a specified salary supplement from the state. If the total salary from state and county funds exceeds 80 percent of the state salary of a district judge, the county attorney will be prohibited from having a private law practice in addition to his or her public duties. Specifically, Section 46.005 states:

LIMITATIONS ON LAW PRACTICE.

The state prosecuting attorney or a state prosecutor may not engage in the private practice of law but may complete all civil cases that are not in conflict with the interest of any of the counties of the district in which the attorney or prosecutor serves and that are pending in court before the attorney or prosecutor takes office.
The state prosecuting attorney or a state prosecutor may not accept a fee from an attorney to whom the state prosecuting attorney or state prosecutor has referred a case.
This section applies to a county prosecutor and any assistant of a prosecutor if, from all state and county funds received, the county prosecutor or assistant receives a salary that is equal to or more than 80 percent of the benchmark salary.
This section does not apply to a county prosecutor who files with the county auditor an annual written waiver of the amount of compensation that is equal to or exceeds 80 percent of the benchmark salary. An amount waived under this subsection shall be used for expenses of the county prosecutor’s office.
This section does not apply to a county prosecutor who, before September 1, 1999, was paid in excess of the benchmark salary by the county in which the prosecutor serves.”

In addition to misdemeanor prosecution, the county attorney often represents Child Protective Services with regard to the disposition of abused and neglected children, handles the county’s mental illness hearings before the court, and may conduct special prosecutions, such as nuisance-abatement of trash under a Commissioners Court ordinance, animal control problems, etc.

Where there is a good working relationship between a county attorney and the Commissioners Court, the county attorney can act as the legal right-hand of the court. However, while most county attorneys are “up-to-speed” on county legal issues and can be of important assistance to the Commissioners Court, many are usually more oriented to criminal law. If the county attorney feels that he or she is not qualified or capable of handling a particular civil issue for the county, professional ethics require that he or she not undertake the matter; private legal counsel may then be required. Areas where the county attorney can provide positive assistance to the Commissioners Court may include some of the following:

Reviewing and drafting proposed county legislation, ensuring that it meets legal standards and requirements and avoids problems of ambiguity.
Examining contracts to assure that they meet legal requirements and do not create any more liability for the county than is necessary. There are constitutional requirements with respect to a county incurring debt, and the county attorney can aid in protecting the county’s interest.
Rendering legal opinions about potential actions and policy matters. He or she should not be expected to give “off-the-cuff” opinions, since any legal opinion should be well researched and provide a sound basis on which court-established policy can rest. Sometimes the problem will be sufficiently complex that it will require an attorney general’s opinion. When asking for a legal opinion of the county attorney, it is very important that all of the facts behind the request be provided. Of course, one must be prepared for whatever opinion is forthcoming, good or bad. Also, the county attorney will provide an opinion as to the legal feasibility of a course of action, not whether that course should be taken…that is the province of the Commissioners Court alone.
Screening open records requests. Open records and meetings law has become increasingly complex, and it is critical that timely decisions and responses promptly flow from such requests from the public. A policy should be established for all departments to routinely channel such requests through the county attorney to make sure the law is followed correctly.
Initially reviewing claims made against the county before being turned over to the insurance carrier. The problem might be one that can be quickly and cheaply resolved. Also, a quick response in gathering records and information, such as interviewing involved parties, may preserve important evidence in the county’s favor that might otherwise be lost by delay. Also, the county attorney can be an important liaison with the insurance carrier.

Finally, with respect to the county attorney’s criminal prosecution duties, it is very unethical and unbecoming for a political figure to attempt to intercede with the county attorney on behalf of some arrested friend, relative or community leader who has run afoul of the law. Nothing upsets the electorate more than the notion that political influence can buy immunity or privileged treatment. The county attorney must necessarily enforce all of the laws without favor.

While the preferences of the county attorney or the Commissioners Court will largely dictate the ongoing relationship between the two, it also should be emphasized that the more duties that the county attorney assumes in support of the court, the more likely there will be a need to enhance the available resources in the county attorney’s office, both personnel and equipment. Even at that, it might still be cheaper than outside legal help. Nevertheless, the county attorney can be an important part in helping a Commissioners Court to meet its responsibilities legally and efficiently.

– By Rick Miller, former Bell County Attorney