In an effort to help counties get a handle on long-range financial planning, the Texas Association of Counties board of directors has endorsed a proposal for a state constitutional amendment requiring the state to pay all or part of the cost of newly mandated or expanded county programs.

The proposal was submitted to the board in December by the Policy Analysis Group (PAG). PAG is made up of county officials from across the state, representing all elected and appointed county offices. Its mission is to study, recommend and implement solutions to the challenges, structure, quality and authority of local government.

“To properly manage county operations and develop reliable long-range plans, Texas counties need direct funding systems for new and enhanced programs prescribed by the Legislature,” TAC Governmental Relations Director Carey Boethel explained in summarizing the PAG discussions. “Unfunded and under-funded obligations materially interfere with county government planning and seriously impair a county’s ability to function in fiscally responsible manner.”

To address the problem, the group proposed the drafting of a constitutional amendment that would require the state to set aside to the credit of counties adequate funds to pay all or some high percentage of the “ongoing, usual and reasonable costs of performing a new program or an increased level of service of an existing program” prior to the county being required to deliver the new or expanded services. The proposal presented by PAG suggested possible exceptions to be included in the amendment, including:

• Instances where a county expressly waives funding as evidenced by an order of its governing body;

• Instances where the state provides a specific funding mechanism associated with the mandated service that is sufficient to fund the new program or the increase level of services associated with an existing program; and

• Instances where the Legislature passes an unfunded or underfunded mandate by a two-thirds vote of each body.

To promote the proposal, the PAG group appointed a committee to be chaired by Brazoria County Commissioner Jack Harris. Other members of the committee are Fort Bend County Assessor-Collector Marsha Gaines, Wichita County Auditor Deborah Stevens, Bell County District Attorney Henry Garza and Bee County Assessor- Collector Andrea Gibbud.

Commissioner Harris served 12 years in the House of Representatives, where he served on the County Affairs Committee and witnessed numerous occasions in which well-meaning legislators approved laws that included unfunded mandates. At the same time, he said, successive legislatures approved resolutions demanding the U.S. Congress to stop dumping new, unpaid-for responsibilities on the states.

“No one in the Legislature wants to pass a law with an unfunded mandate on local government, but they just happen," Harris said. "Every time the question of prohibiting mandates comes up, everyone is unanimously for it, but when you try to pass a law or resolution prohibiting them, they never end up with any teeth in them.”

He cited the 2001 Fair Defense Act, which revamped the process for appointment of attorneys for the indigent. “They did provide some funding, but it sure cost our county quite a bit more than what we got from the state,” he said.

Very limited safeguards exist in current practice, but Harris said the PAG discussions recognized the need for a constitutional amendment “with some teeth in it.”

In the 1980s, for example, lawmakers required that a bill could not advance in the legislative process unless it was accompanied not only by an analysis of its cost to the state budget but also an estimate of its fiscal impact on local governments. The state fiscal note is developed by direct feedback from state agencies, but determining the effects of measures on 254 counties and thousands of cities and school districts has proved much more difficult.

“The statement about local government almost always comes back indicating that the impact cannot be determined because they don’t have any facts to work with,” Harris said. “The idea of putting a price tag on the cost to local governments is rarely fulfilled.”

In 1997, the Legislature passed a statute to create an Unfunded Mandates Interagency Work Group with the responsibility to compile a list of unfunded mandates and present it to the Legislature and the Governor. That law provides no offer of funding and does not exempt local governments from being bound to carry out the mandates.