From the General Counsel

Interim Senate Committee Charges

December 30, 2019 by County Progress

Interim Senate Committee Charges

After each legislative session, the standing committees are assigned issues to study during the interim. The committees will examine these issues, conduct public hearings, and prepare a report with legislative recommendations for the next session. The lieutenant governor assigns issues to the Senate committees, and the Speaker assigns issues to the House committees. Assignments to House committees have not been made. Below are some county-related issues assigned to Senate committees.

Business and Commerce Committee

Information Technology: Review the state’s major information technology infrastructure. Examine cybersecurity preparedness and reporting requirements for state and local governments and political subdivisions. Identify opportunities for expanded partnership and coordination between state and local officials. Compare state and local government prevention and response efforts with those of private businesses facing similar threats. Make recommendations for cost-effective ways to strengthen and protect consumer data and personal information against privacy breaches and ransomware threats.
Health Care Costs: Study the cost of health care in Texas. Make recommendations to increase access to affordable quality health care. Explore potential opportunities and recommend best practices to continue to curb rising health care costs. Study and report on ways to increase consumer health care options, provide flexibility in the market, and decrease the uninsured rate in Texas, including 1115 and 1332 waivers.

Finance Committee

Natural Disaster Funding: Review federal, state, and local eligibility and receipt of disaster funds from Community Development Block Grants – Disaster Relief and the Federal Emergency Management Agency. Identify any barriers to the effective utilization of those funds and recommend any changes to statutes, rules, or practices to promote the efficient deployment of those funds and expedite recovery by affected citizens, businesses, and communities.
Monitoring: Monitor the implementation of legislation addressed by the Senate Committee on Finance passed by the 86th Legislature, as well as relevant agencies and programs under the committee’s jurisdiction. Specifically, make recommendations for any legislation needed to improve, enhance, or complete implementation of the following:
- Contingent upon voter approval, study the implementation of House Bill 492 and House Joint Resolution 34, relating to a temporary exemption from ad valorem taxation of a portion of the appraised value of certain property damaged by a disaster.

Health and Human Services Committee

Health Care Costs: Examine the state health and human services finance system including, but not limited to, the following programs and methods of finance: Local Provider Participation Funds, the Delivery System Reform Incentive Payment Program, Medicaid 1115 waivers and Section 1332 State Innovation waivers, Pay for Quality Programs, the Quality Incentive Payment Program, and other state and local funding used to finance health care systems in Texas. Identify ways to streamline functions and reduce unnecessarily burdensome and costly requirements in the Texas Medicaid program. Provide recommendations to ensure the sustainability of the state’s health and human services system and judicious use of taxpayer dollars.
Rural Health: Examine and determine ways to improve health care delivery in rural and medically underserved areas of the state. Determine whether additional funding provided during the 86th Legislative Session has helped to ensure more accessible and quality health care in rural areas.

Intergovernmental Relations Committee

Infrastructure Resiliency: Examine the authority special purpose districts have to generate natural disaster resilient infrastructure. Determine ways state government can work with special purpose districts to mitigate future flooding and promote more resilient infrastructure. Make recommendations on how special purpose districts may use their statutory authority to assist in mitigating damage from future natural disasters.
Monitoring: Monitor the implementation of legislation addressed by the Senate Committee on Intergovernmental Relations passed by the 86th Legislature, as well as relevant agencies and programs under the committee’s jurisdiction. Specifically, make recommendations for any legislation needed to improve, enhance, or complete implementation of the following:
- Senate Bill 1303, relating to landowner rights in a city’s extraterritorial jurisdiction;
- Senate Bill 1474, relating to private activity bonds; and
- House Bill 2330, relating to simplifying disaster assistance.

Property Tax Committee

Monitoring: Monitor the implementation of the following legislation addressed by the Senate Committee on Property Tax passed by the 86th Legislature. Specifically, make recommendations for any legislation needed to improve, enhance, or complete implementation of the following:
- Senate Bill 2, relating to ad valorem taxation.

State Affairs Committee

Elections: Study the integrity and security of voter registration rolls, voting machines, and voter qualification procedures to reduce election fraud in Texas. Specifically, study and make recommendations to: 1) ensure counties are accurately verifying voter eligibility after voter registration; 2) improve training requirements for mail-in ballot signature verification committees; 3) ensure every voter has access to a polling station, particularly in counties that have adopted countywide polling; 4) allow the voter registrar, county clerk, and secretary of state to suspend an unqualified voter’s registration or remove an ineligible voter from a list of registered voters; and 5) ensure compliance with laws that prohibit school trustees and employees from improperly using public funds to advocate for or against any candidate, measure, or political party.
Taxpayer Lobbying: Study how governmental entities use public funds for political lobbying purposes. Examine what types of governmental entities use public funds for lobbying purposes. Make recommendations to protect taxpayers from paying for lobbyists who may not represent the taxpayers’ interests.
Second Amendment: Examine Second Amendment legislation passed since the 84th Legislative Session including open carry, campus carry, and lowering the license to carry fee. Determine the impact these laws have made on furthering and protecting Second Amendment rights. Make recommendations that may further protect and enhance Texans’ Second Amendment right to bear arms.

Transportation Committee

Monitoring: Monitor the implementation of legislation addressed by the Senate Committee on Transportation passed by the 86th Legislature, as well as relevant agencies and programs under the committee’s jurisdiction. Specifically, make recommendations for any legislation needed to improve, enhance, or complete implementation of the following:
- The Legislature’s new funding for the driver’s license program as funded in the General Appropriations Act;
- The Legislature’s funding for grants to counties to be used for repair of county roads as funded in the General Appropriations Act;
- B. 198, relating to payment for the use of a highway toll project;
- B. 616, as it relates to the analysis of the opportunities and challenges of transferring the driver’s license program to the Texas Department of Motor Vehicles;
- B. 1915, relating to the board of pilot commissioners for Harris County ports; and
- S.B. 2223, as it relates to two-way directional routes.

Implementing New Laws

October 28, 2019 by County Progress

Many of the statutes adopted by the 86th Legislature were effective on Sept. 1, 2019. Some require action by the Commissioners Court to assure compliance. Below are summaries and recommendations for implementation of some of the new statutes.

Mental Health Interview: H.B. 601 by Rep. Price requires an interview and mental health report on any jail inmate suspected of mental illness. A floor amendment added a requirement that the county pay the cost of the interview and report. The Commissioners Court has three options concerning this new unfunded mandate:

Include the cost of this service in a contract with the Local Mental Health Authority or other mental health provider.
Adopt an order establishing a fee to be paid for each interview and report.
Allow the judge who receives the report to set the fee.

If the Commissioners Court elects to set the fee, place an item on the agenda and adopt a motion to set the jail mental health interview and report fee.

Game Room Regulations: H.B. 892 by Rep. Kuempel extends game room regulation authority to all counties. Under Subchapter E, Chapter 234, Local Government Code, these regulations may include limiting the location and number, requiring a license or permit with a fee not to exceed $1,000, inspections by law enforcement, and civil and criminal penalties.

Tax Abatement Agreements: H.B. 3143 by Rep. Murphy extends county authority to consider tax abatement agreements under Chapter 312, Tax Code until Sept. 1, 2029. There are new requirements to conduct a public hearing and post the guidelines and criteria on the county website.

Plat Review Deadline: H.B. 3167 by Rep. Oliverson revises Chapter 232, Local Government Code and imposes a 30-day deadline for subdivision plat review with automatic approval if not disapproved within the deadline.

Cybersecurity Training: H.B. 3834 by Rep. Capriglione requires annual cybersecurity training for all county employees and officers with access to a computer. Training must be obtained from one of five private contractors approved by the state.

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

By Jim Allison
General Counsel

Pretrial Intervention Program Fund

September 9, 2019 by County Progress

The Texas Attorney General has provided guidance on the proper use of the pretrial intervention program fund. Attorney General Opinion KP-0263 (2019) determined that the Commissioners Court must “ultimately decide how to expend the pretrial intervention program special fund.”

Article 102.0121 of the Code of Criminal Procedure provides that a prosecutor may “collect a fee in an amount not to exceed $500 to be used to reimburse a county for expenses, including expenses of the district attorney’s, criminal district attorney’s, or county attorney’s office related to a defendant’s participation in a pretrial intervention program offered in that county.” Fees are deposited in the county treasury to be used solely to administer the pretrial intervention program. “An expenditure from the fund may be made only in accordance with a budget approved by the Commissioners Court.”

Association General Counsel, Jim Allison

The Attorney General noted that “the time and labor of the attorneys and staff of the prosecutor’s office likely represent a substantial component of the county resources expended to administer a pretrial intervention program. Thus, a court would likely conclude that compensation of the employees who administer the program is a use of the pretrial intervention fund ‘to administer the pretrial intervention program.’ Accordingly, article 102.0121 authorizes the Commissioners Court to use the pretrial intervention fund for an employee’s salary, salary supplement, or benefit only to the extent such use of the fund is solely for the administration of the program.”

In summary, the Commissioners Court, not the prosecuting attorney, ultimately determines the authorized uses of the county pretrial intervention fund. The Commissioners Court may use the fund for the employee’s salary, salary supplements, or a benefit only to the extent the use of the fund is solely for the administration of the program.

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

Mandated Mental Health Jail Inmate Interviews and Reports

August 19, 2019 by County Progress

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.

By Jim Allison
General Counsel

From the General Counsel: Speed Cameras and Nursing Homes

July 1, 2014 by Christi Stark

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.

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