ORDER NU. 27835
RATIFY HIRING gLLI5UN, BRSS ~ RSSUCIRTES, L.L.G.
On this the 28th day of October, 2002, upon motion made by
Commissioner Baldwin, seconded 6y Commissioner Let z, the Court
unanimously approved by a vote of 4-0-0, ratification of
hiring Rllison, Rass & Associates, L.L.G., to represent Y,err
Co~_mty.
Memorandum
To: Judge Fred Henneke, County Commissioners & Tommy Tomlinson
From: David Motley
Date: October 23, 2002
Subject: Marcie Caldwell v. Carole Keeton Rylander, et. al.; in the 26151 Judicial
District Court of Travis County, Texas
Gentlemen:
I apologize for not being present at the October 15, 2002 Commissioners' Court meeting
when you took up item 2.27-"Select County Representation, Caldwell v. Rylander,"
however, I had left to go to my office to retrieve information relative to item 2.25= `Apply
for extension of time for compliance with Health Insurance Portability & Accountability
Act." By the time I returned, the public portion of the meeting was over.
I trust all of you have copies of Judge Henneke's October 10, 2002 memo concerning this
subject. In that memo, Judge Henneke suggested it would be a viable alternative for Kerr
County to defend itself by using a "me too" strategy. At the Commissioners' Court
meeting of October 15`h, Judge Henneke said that "the most economical representation"
that the county could obtain in the Caldwell case "would be to have the County
Attorney's Office do it." This was offered as an alternate to representation of our county
and the 63 others jointly by Allison, Bass & Associates, L.L.P. of Austin.
As you know, the Texas Association of Counties itself as opposed to the Texas
Association of Counties Risk Management Pool is contributing half the cost of
representation of all 64 co-defendant counties by the firm of Allison, Bass & Associates,
L.L.P., up to a maximum of $25,000.00, into a common defense pool, although it is fairly
cleaz that there is no legal obligation for TAC to provide legal representation to us in this
action. All defense fees and expenses above the half contributed by TAC would be borne
by the counties by population. Should the costs total $50,000.00, which is the best
estimate at present, and should all counties elect to join the common defense, Kerr
County's share of the defense costs would be $88.28 or about''/3 of a percent of the costs
over TAC's generous $25,000.00 contribution. Of course, if the costs are more than
$50,000.00 or should some of the 64 counties choose to exclude themselves from this
common defense effort, costs to Kerr County would rise. However, our being 48a' in the
group of co-defendant counties would make our costs among the lowest.
I have spoken with Bob Bass about the $50,000.00 cost estimate, and he explained that
that amount could increase. He acknowledged that several of the more populous counties
may choose to exclude themselves from the arrangement outlined above, which would
leave a smaller number of counties amongst which to divide the attorney's costs over
$25,000.00. Even so, Kerr County would still be on the lower end of that cost. In a
"worst case scenazio," he could not foresee ~ county's expenses being greater than
$2,500.00. He also said that a number of counties were having trouble arranging a
meeting in time to engage their services so they aze accepting a faxed copy of their
authorization form, previously provided to the Judge to commence their services and to
timely file an answer, which is due on October 28, 2002 by 10:00 a.m.
On the other hand, this sort of civil representation is not contemplated within any
agreement between the Commissioners' Court and me and is not required of me by any
statute. Accordingly, I would be able to bill the county for these additional services at the
going rate less a percentage attributable to office space, word processing equipment, etc.
Further, each trip I make to Austin for this matter would cost somewhere in the
neighborhood of $85.00.
By the way, there is nothing simple about filing an answer in this case: There are several
issues relating to sovereign and official immunity, some novel, which would need to be
addressed in this answer or else become waived. (Much of the Plaintiff s Second
Amended Petition addresses sovereign and official immunity and claims that the counties
are not entitled to either, in this case.) If the bigger counties opt out of this arrangement,
there will be a less vigorous defense mounted and less for us to rely upon. Additionally,
it would be a bit unseemly for Kerr County to opt out of the joint arrangement and then
rely upon those who aze fighting on behalf of the remaining counties. I also am
concerned about the maverick image Kerr County may project across the state should
they opt out of this joint representation and go it alone.
In short, it appears as if the most cost efficient manner to defend this potentially costly
suit is to engage the services of Allison, Bass & Associates, L.L.P. The plaintiffs aze
seeking their court costs, attorney's fees, and reimbursement of the funds they claim were
wrongfully taken from the class members. At $10.00, and later $15.00, per county court
at law criminal conviction since 1991, it is plain that Kerr County's reimbursement could
be substantial, if we lose.
I am respectfully referring the case back to the Commissioners' Court. As the answer
date is looming, I suggest that Judge Henneke immediately make direct arrangements
with Allison, Bass & Associates, L.L.P. for the defense as outlined above, with more
thorough consideration or ratification of the arrangement in a future session of the Court,
or, alternatively to call an emergency session of the Commissioners' Court this week to
authorize retaining Allison, Bass & Associates, L.L.P. If requested to assist in this effort,
I will be happy to do so. Please contact me if you have any questions or concerns.
Please be advised that I prepazed this memorandum before receiving Judge Henneke's
memo of October 24`". In response to said memo, the fact that the court has referred this
matter to me is not determinative of any duty to become engaged in this civil case. I
repeat, this is beyond any possible interpretation of "the agreement" which deals with
civil representation in the preparation of memoranda or answers to the Commissioners'
Court, elected and appointed county officials. I appreciate your advising me of the
answer date you learned of through correspondence from Mr. Allison, but as you can see
above, I was and still am awaze of this deadline. Accordingly I urge you to place a phone
call to Jim Allison or Bob Bass as soon as possible.
DM/s
cc: Commissioners' Court file
Judge Henneke file

October 24, 2002
TO: Mr. James P. Allison
Allison, Bass & Associates, L.L.P.
FROM: Fred Henneke
Kerr County Judge
SUBJECT: Caldwell vs. Rylander Cause No. 99-13088
Per our conversation, enclosed please find the Kerr County Authorization Form
regarding your firm's representation of Kerr County in the above-referenced litigation.
Please provide me with a list of those counties participating in the joint defense as well as
a copy of the pleadings pertinent to Kerr County.
Thank you for your assistance.
Cc: Commissioners
David Motley

~ir2-SL8O~OSD~Z
AUTHORIZATION FORM
The law firm of Allison, Bass and Associates ("firm") is hereby authorized
to represent the undersigned county in Cause No. 99-13088 Caldwell v. Rylander,
et al in the 2615` Judicial District Court. The firm shall provide all necessary legal
services to defend this matter and shall be compensated for partner services at a
rate of $190 per hour, associate services at a rate of $150 per hour, and paralegal
services at a rate of $60 per hour, plus actual expenses.
All fees and expenses shall be apportioned as follows: 50% to the Texas
Association of Counties, not to exceed $25,000.00 total; and the remainder
allocated to all participating defendant counties on the basis of population:
err oun udge