From the 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.

From the General Counsel: County Debt Analysis

June 1, 2014 by Christi Stark

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

May 1, 2014 by Christi Stark

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.

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