Texas County Progress

The Official Publication of the County Judges and Commissioners Association of Texas

Mandated Mental Health Jail Inmate Interviews and Reports

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By Jim Allison
General Counsel

For several years, the County Judges and Commissioners Association of Texas has supported legislative proposals to improve mental health programs. There have been some improvements in state funding. In 2010, Texas ranked 50th among the states in mental health funding; by 2017, we had improved to 40th. Nevertheless, county jails continue to hold more mentally ill persons than all of the state facilities combined, and the backlog of jail inmates awaiting admission to a state facility continues to increase.

Instead of providing sufficient capacity at state facilities to meet this need, the legislature has resorted to mandates upon counties to provide treatment to these citizens. Present law already requires that the county jail file notice to the local magistrate of any reasonabe cause to believe that an inmate has a mental illness. If the magistrate determines reasonable cause, an order is issued to the local mental health authority (LMHA) to conduct an assessment to the magistrate within 96 hours. The county reimburses the LMHA for transport expenses if the inmate is transported for the assessment by the LMHA.

Effective Sept. 1, 2019, House Bill 601 by Rep. Four Price will add new requirements and county expenditures to this procedure. Under this legislation, the LMHA or other mental health provider must conduct an interview with the inmate, either in person in the jail, by telephone, or through a telemedicine service. This legislation requires that the county pay the LMHA or other mental health provider for the interview and report to the magistrate.

To meet this new mandated responsibility, the Commissioners Court has three options: 1) obtain a contract with the LMHA or other mental health provider to provide this service for a negotiated fee; 2) adopt a fee schedule after a public hearing to establish the payment rate; or 3) do nothing and let the judge with jurisdiction over the offense determine the amount of reimbursement. Note that fee schedule amounts may be appealed to the judge.

If your county is presently contracting with the LMHA or other mental health provider, the county may amend its contract to include these services into that agreement. This will provide some budgetary control over the potential cost of this mandate.

     For additional information, please call me at 1-800-733-0699.

 

 

From the General Counsel: Speed Cameras and Nursing Homes

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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.

From the General Counsel: County Debt Analysis

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The Senate Committee on Intergovernmental Relations has received an interim charge to study and make recommendations on the immediate and long-term fiscal impact that bonds and other types of obligations issued by local governments have on current and future generations of taxpayers.  I was invited to testify at a recent hearing on this issue and presented some important information to the Committee.

Public debt is the means of financing infrastructure and distributing the cost over time among both present and future taxpayers.  With over 400,000 new citizens arriving in Texas annually, additional infrastructure will be required, and these new taxpayers should assume their share of the cost.

Since the State of Texas does not provide assistance to local governments for infrastructure, these projects must be financed at the local level, primarily through bonds and certificates of obligation.  For counties, these obligations are dependent upon the property tax for repayment.  Local taxpayers determine whether to approve bonds and may petition for a referendum on certificates of obligations.  Local voters decide whether to re-elect the county officials who propose these projects.

However, counties issue only about 7 percent of the local government debt with 66 percent issued by school districts and cities.  Special districts account for the remainder.  In recent years, 40 percent of the county obligations have been issued to refinance or refund obligations, ensuring the benefit of lower interest rates for our taxpayers.

Counties use debt to finance infrastructure projects, primarily roads, courts, correctional facilities and flood control.  As state support for transportation projects has diminished, counties have assumed the burden of improved county roads and TxDOT projects.

As legislators consider imposing additional restrictions on the issuance of local governmental debt, please remind them that 1) counties only issue 7 percent of the local debt; 2) counties are responsible to local taxpayers for these decisions; 3) state government does not assist in the payment of these obligations; 4) extended financing equitably distributes the cost of capital improvements; and 5) counties are constitutionally limited on the debt that may be issued.

For more information, please call me at 1-800-733-0699.

General Counsel’s Report: Alternative County Revenue Sources

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The County Judges and Commissioners Association of Texas continues to support alternative county revenue sources during each legislative session.  These proposals range from an expanded local option sales tax, to an increase in the local option vehicle registration fees, to local options for a variety of user fees for county services. Successes in these efforts have been few and difficult to achieve, usually limited to fee increases. Some may have questioned why we continue to pursue these options for counties when special interests and some taxpayer groups withhold their support.  As we approach county budget time and another legislative session, this topic is worth a review.

Most county revenue is currently derived from the property tax.  It is the only source of additional revenue under the control of the Commissioners Court. While Texas consistently ranks as a low-tax state overall, our reliance on property taxes for schools, counties, cities, and special districts has pushed us into the top one-third in property taxes. Whenever additional unfunded mandates require county funding, the property tax must be increased. The effects of ordinary inflation in the cost of county services must also be funded by the property tax. While the state budget benefits from inflation through additional sales taxes without notice to the taxpayers, the county must publish notice and conduct hearings before assessing any taxes to offset these mandatory costs. No wonder that the property tax is no longer a viable method to fund the increased cost of local government.

Taxpayers have consistently indicated a preference for alternatives to the property tax.  Nevertheless, the Legislature is extremely reluctant to empower local officials with these options, preferring to keep counties dependent upon them for even the most minimal increases in user fees. While the virtues of local control are often extolled at campaign time, they lose their appeal when legislators consider releasing the purse strings. This reluctance is intensified when taxpayer groups insist on labeling every local option revenue proposal as a tax increase.  The meager support that trickles from Austin to counties is usually overloaded with administrative burdens and policy limitations.

Texas Commissioners Court members are steadfastly conservative stewards of the public trust.  Our budgets are consistently rated the most efficient and effective by taxpayers and professional analysts.  However, our ability to respond to the legitimate needs of our constituents will remain constricted by the over-burdened property tax until we are able to persuade the Legislature to adopt measures that transform the rhetoric of local control into reality.  Please continue to carry this message.

For more information, please call me at 1-800-733-0699.

Best (and Worst) Commissioners Court Practices

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By Jim Allison

In the past 40 years, I have witnessed some extraordinary sights in Commissioners Court, ranging from audiences physically charging the podium, to shoving matches between members of the Court. I have also seen some commendable acts of courtesy and statesmanship.  As the level of courtesy and respect declines in our society, Commissioners Court members should commit to a higher standard of ethics and behavior, setting an example for others.  Here are a few observations of the best and worst practices.

  1. Offer Respect. Always begin with the Golden Rule. Every encounter with constituents or other officials is an opportunity to make friends and supporters. Spend more time listening than talking. Consider their point of view. If they are agitated or upset, give them some time to vent, and then ask a question. Do not attempt to debate or argue with the audience. Reserve your decision until the vote is taken. Address your comments to the Chair. Do not interrupt other members of the Court.
  2. Require Respect. The Commissioners Court is a place of business, not a debating hall. Maintain order and separation, both physically and verbally from the audience. Do not respond to public comment, except to thank the speaker, unless a question is necessary to obtain additional information. Do not allow comment, except to thank the speaker, unless a question is necessary to obtain additional information. Do not allow comment from the audience unless recognized by the Chair.
  3. Appearances Matter. You only have one opportunity to make a good first impression. Arrive promptly for Commissioners Court, and begin on time. Wear appropriate business attire. Speak slowly and clearly without unduly raising your voice. Be prepared. Review materials in advance, and make them available to the public and media.
  4. Follow the Rules. Adopt rules of procedure and decorum. Provide copies for the audience. Use basic parliamentary procedure. Do not argue with the other members. Recognize members fairly and impartially.
  5. Follow the Law. Do not engage in the “walking” quorums. Allow all members to place items on the agenda. Post the agenda as required by law, and maintain records. Review and revise minutes as needed. File affidavits, and abstain when required by the conflict of interest statute. When in doubt, bid it out. Obtain legal advice. Be sure that you are right, then go ahead.
  6. Think Ahead.  Consult other local, state, and federal officials on future infrastructure and capital project needs.  Budget for the unexpected; maintain sufficient reserves.  Hold community workshops, and appoint advisory committees on large projects.  Don’t keep score or hold grudges.  Enjoy each day.

For more information, please call me at 1-800-733-0699.

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County Progress

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Abilene, TX 79602
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