Letter of Opinions

LO 96-103. David R. Smith, M.D., Commissioner, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, concerning regulation of kinesiotherapists under article 4512e, V.T.C.S., and related question (ID# 38920).

Summary. The Texas Department of Health does not have the authority to register kinesiotherapists.

LO 96-106. Request from Mr. Lawrence R. Jacobi, Jr., P.E., General Manager, Texas Low-Level Radioactive Waste Disposal Authority, 7701 North Lamar Boulevard, Suite 300, Austin, Texas 78752, concerning authority of the Texas Low-Level Radioactive Waste Disposal Authority top exchange real property with a private individual. (ID# 38918)

Summary. Absent express statutory authority, the Texas Low-Level Radioactive Waste Disposal Authority may not exchange its land for land owned by a private party.

LO 96-107. Request from The Honorable Shane Ann Green, Brewster County Attorney, P.O. Box 323, Alpine, Texas 79831, concerning whether the "resign-to-run" provision of the Texas Constitution is applicable when an individual declares herself a "candidate" for an appointed position (ID# 38807).

Summary. The automatic resignation provision of article XVI, §65 of the Texas Constitution does not operate to remove a county judge who seeks gubernatorial appointment to a district court bench. A member of the board of directors of a hospital district holds an office of trust.

LO 96-113. The Honorable Thomas F. Lee, District Attorney, 63rd Judicial District, P.O. Box 1405, Del Rio, Texas 78841, concerning whether the Del Rio Chamber of Commerce Room Tax Committee is subject to the Open Meetings Act, Chapter 551, Government Code (ID# 38830).

Summary. A committee of the chamber of commerce that is expending funds raised by the local hotel tax under contract with the city is not a governmental body within the Open Meetings Act.

LO 96-114. Request from The Honorable Marcos Hernandez, Jr., Hays County Criminal District Attorney, 110 East Martin Luther King Drive, Hays County Justice Center, San Marcos, Texas 78666, concerning whether prior conviction of a felony disqualifies an individual from serving as a member of a school district board of trustees. (ID# 38806)

Summary. Prior conviction of a felony disqualifies an individual from serving as a member of the board of trustees of an independent school district, unless the person has been pardoned or otherwise released from the resulting disabilities.

LO 96-116. Anthony P. Picchioni, Ph.D., Chair, Texas State Board of Examiners of Professional Counselors, 1100 West 49th Street, Austin, Texas 78756-3183, concerning whether the complaints committee of the Texas State Board of Examiners of Professional Counselors may discuss with its attorney in a closed meeting complaints against counselors. (ID# 38695)

Summary. Government Code §551.071(1)(A) authorizes a governmental body, including the Texas State Board of Examiners of Professional Counselors' Complaints Committee, to consult with its attorney in a closed meeting regarding pending or contemplated quasi-judicial, administrative proceedings governed by the Administrative Procedure Act. Similarly, §551.071(1)(B) authorizes a governmental body to consult with its attorney in a closed meeting regarding the settlement of a matter that otherwise would proceed to a quasi-judicial, administrative hearing. Government Code §551.071(2) authorizes the Texas State Board of Examiners of Professional Counselors' complaints committee to consult with its attorney in a closed meeting about matters in which the attorney's duty to the complaints committee "under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas clearly conflicts with" the Open Meetings Act, Government Code chapter 551. The complaints committee must take any final actions in an open meeting.

LO 96-120. Request from The Honorable Mike Driscoll, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas 77002-1891, concerning whether subchapter A of chapter 332 of the Local Government Code is applicable to professional baseball and football facilities and related questions. (ID# 39196)

Summary. Construction of new or renovated stadiums, arenas, and other facilities for use by professional baseball and football teams constitute "recreational facilities" under subchapter A of chapter 332 of the Local Government Code (the "code"). The proposition and ballot language conform to the requirements of law. An election held pursuant to §332.003 of the code is binding although it is not clear that if the proposition submitted passes, that the Harris County Commissioners Court would be required to exercise the powers conferred. Defeat of the §332.003 referendum would not preclude the commissioners court from expending public funds for improvements to the Astrodome Complex under and in compliance with other statutory or constitutional authority.

LO 96-123. Request form The Honorable Don Henderson, Chair, Jurisprudence Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711-2068, concerning whether, under Property Code §204.010(9), a property owners' association may assess additional fees or raise existing fees for services the association performs, without following "established procedures" for assessing or raising the fees. (ID# 38818)

Summary. Property Code §204.010(a)(9) authorizes the board of a property owners' association that is subject to chapter 204 to impose, without membership approval, payments, fees, or charges for the use, rental, or operation of the common area and for services provided to property owners unless property restrictions or the association's articles of incorporation or bylaws provide otherwise. Subsection (a)(9) encompasses the authority to set additional payments, fees, or charges and to raise existing payments, fees, or charges.

LO 96-126. Request from Mr. Wayne Scott, Executive Director, Texas Departmtent of Criminal Justice, P.O. Box 99, Huntsville, Texas 77342, concerning eligibility for mandatory release of inmates convicted of indecency with a child under Penal Code §21.11(a)(11). (ID# 39210)

Summary. Inmates convicted of indecency with a child under §21.11(a)(1) of the Penal Code are not eligible for mandatory supervision according to the terms of Code of Criminal Procedure article 42.18, §8(c).

LO 96-127. The Honorable Doyle Willis, Chair, Military and Veterans Affairs, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether Bexar County Commissioners Court may house its veterans service office with its Department of Housing and Human Services. (ID# 38643)

Summary. A Veterans County Service Office in a county with a population of 200,000 or more must be located in an office that is "separate and distinct" from other county offices. The Veterans County Service Officer should have a sufficient degree of physical separation from other county departments and officials to enable veterans to identify and locate him or her.

TRD-9700349