AVERTEST CONTRACT QUESTIONED, NO COMMISH COURT APPROVAL; CAMERON COUNTY BAR PETITIONS FOR REPEAL

By Juan Montoya
Just last week, Cameron County Luis V. Saenz sent his gopher Asst. DA Rene Garza to the Dancy Building to get the approval from commissioners for him to spend $24,999 to pay for three billboards addressing domestic abuse which featured his name and office shield prominently.
The fact that the billboards were to be placed in spots in the county which pushed him to victory four years ago gave commissioners cause to pause and they approved the contract with Lamar Billboard with the condition that only the name of the office, not Saenz's, be included on the billboard.
The separation of powers has always been a hallmark of county government. All contracts that are entered upon by the individual departments must be approved and bear the signature of the county judge. One arm of the government cannot usurp the other.
Saenz knows this well.
Virtually every state and federal grant and contract with vendors and other governmental bodies must first be approved by the court. His reps are always there requesting their approval (and the court's legal counsel) before entering into any deals.
But is Saenz's case, courthouse watchers have detected a tendency of Saenz to bypass the executive and legislative branches and go on off his own authority to cut deals that could potentially expose the county to liabilities.
Take, for example, his sale of 500 eight-liners to a Georgia corporation without the clearance of anyone but himself. That may have netted his office $100,000, but it did not have the approval fo the county commissioners. If those same machines are being used in a place where a crime is committed and someone gets hurt, who is liable for the sale?
On the political side, Saenz promised he would not emulate his predecessor Armando Villalobos by reselling the machines that they may be put to use again. That's a liability he will have to face on his own.
That is what is happening in Saenz's latest unilateral move to change the condition of his Pre-Trial Diversion contracts with first-time offenders. On August 31, Saenz – through Garza – surprised the legal community by saying that the rules under which PTD defendants must comply had changed.
He unilaterally contracted with Avertest, a company out of Richmod, Va., to administer substance abuse testing to PTD defendants. Instead of reporting once a month or randomly as they used to, they are now required to report 365 days (weekends and holidays included) upon penalty of revocation from the program.
That applies right now to the PTD defendants only, but the plan is to have it apply to all defendants on probation as well. As draconian as this may seem, there's another catch. Instead of paying the usual $5 fee for the test, they will now pay $17 per test, with $8 going to the DA's Office.
Our inquiries into whether the signing of the contract or the change in the PTD policy had been brought before the commissioners court for their approval indicate that neither has been done.
Legal counsel tells us that the contract and the change in policy was not brought before the commissioners court, but was approved by the Board of Judges. The judiciary, under the Texas Government Code, are limited to the hiring of the auditor, court reporters and judge's personal staff. In other words, it was an end-run by Saenz.
This led to a barrage of criticisms that may yet came and bite Saenz in the butt. There is already talk of legal challenges to the unilateral changes in the requirements under the PTD contract signed by the defendants on the advice of their attorneys.
And jut recently the Cameron County bar members are circulating a petition to have the new testing requirements and costs repealed.
In their website, they state:

"The Cameron County District Attorney's Office has announced their intention to utilize the third party company AVERTEST for Random Urinary Analysis as a condition of Pre Trial Diversion ("PTD") contracts, including those PTDs which have already commenced.

This policy would subject PTD participants to check in 365 times a year see if "randomly" selected for testing. If selected, they must report to one of two collection facilities in Cameron County by 5 p.m. that very day, unless it is a weekend or holiday, in which case they only have until noon. Failure to call in or report for testing on the day selected would be considered a violation of their PTD agreement. This means that no PTD participant, according the policy being implemented, would be able to leave Cameron County at all during the term of the program for fear of being selected.

While this may be appropriate for programs such as Drug Impact Court, it is grossly inappropriate for participants in the PTD program, who must meet stringent requirements just to be considered for the program, such as being a first time offender, among many others.

Moreover, the District Attorney's Office, while claiming AVERTEST helps them achieve true randomness in selection, has admitted that probation officers are able to influence the frequency of testing for specific individuals. This defeats the randomness of selection, and further allows AVERTEST to increase their profits by increasing the oppression imposed on these FIRST TIME OFFENDERS. This is immoral and unjust.

We are vehemently opposed to the implementation of this policy, and we urge the District Attorney's Office to change their course in this matter, and to further refrain from implementing ANY policy which shirks the responsibilities of the county in favor of private companies whose profits are directly proportional to the punishment of Cameron County citizens.

Justice, and the People of our County, are NOT FOR SALE.

To sign the petition, go to the link below:

http://www.ipetitions.com/petition/no-avertest-for-PTDs