Opinions

DM-462(RQ-1008). Request from the Honorable Ken Armbrister, Chair, Committee on State Affairs, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, The Honorable Michael P. Fleming, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas 77002-1891, concerning whether a former member of the governing body or an officer or employee of a taxing unit is eligible for appointment to an appraisal review board, and related questions.

Summary Between September 1, 1997, and January 1, 1998, an appointee's eligibility for service on an appraisal review board is determined in accordance with Tax Code §6.412(c). On and after January 1, 1998, Tax Code §6.41(c) deems ineligible for appointment to an appraisal review board in an appraisal district affiliated with a county that has over 300,000 people a former member of the governing board, former officer, or former employee of any taxing unit, as taxing unit is defined in Tax Code §1.04(12). On and after January 1, 1998, Tax Code §6.412(c) deems ineligible for appointment to an appraisal review board affiliated with a smaller county a former member of the governing board, former officer, or former employee of a taxing unit for which the appraisal district appraises property. Whether the political subdivision the appraisal review board appointee served has ceased to be a taxing unit since the appointee's tenure is irrelevant. For purposes of §6.41(c) and §6.412(c), an officer is an individual upon whom a sovereign, governmental function is conferred, to be exercised by him or her for the benefit of the public largely independent of others' control. An employee, on the other hand, is an individual who works, under an express or implied contract, for the employer at the employer's direction and control and who is compensated for his or her service. Employee includes both full- and part-time workers, but it does not include a volunteer who is not an officer. A court probably would conclude that the 1997 amendment to §6.41(c) and §6.412(c) in toto is not unconstitutional, either under Texas Constitution Article I, section 19 or Article III, section 56.

DM-463(RQ-932). Request from the Honorable Bill Ratliff, Chair, Finance Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning whether freeport exemption from ad valorem tax applies to property sold to an in-state owner who uses it to manufacture products that are shipped out of state.

Summary. Article VIII, section 1-j of the Texas Constitution establishes an exemption from ad valorem tax for "freeport" goods, that is, certain property destined for shipment out-of-state within 175 days after the date the property was acquired in or imported into the state. The freeport exemption is available to property where it is acquired or imported in this state by a person who detains it in the state "for assembling, storing, manufacturing, processing, or fabricating purposes," even though the property is not sold or transported out of the state by that person, but is instead sold to an in-state purchaser who uses the property in manufacturing other items which are then transported out of state within 175 days of the time the first owner acquired it. Whether the freeport exemption applies to specific property owned by one person and sold to another involves questions of fact, which cannot be addressed in the opinion process.

DM-464(RQ-987). Request from the Honorable Rodney Ellis, Chair, Jurisprudence Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711-2068, concerning constitutionality of Senate Bill 1417, Acts 1997, 75th Legislature, Regular Session, Chapter 1327, and related questions.

Summary. Section 51.921 of the Government Code, which imposes a "time payment fee" on every convicted defendant who chooses to pay his fine, court costs, or restitution "over a period of time" rather than "immediately," is not violative of due process or equal protection under the Texas Constitution for the reasons expressed in Attorney General Opinion DM-123 (1992). The time payment fee is applicable only for offenses committed on or after September 1, 1997. It applies to all trial courts in the state, including constitutional county courts, but not to an individual who has been granted deferred adjudication. "Immediately" means "within a reasonable time as directed by the court." If the court consolidates several charges, and imposes a fine, court costs, or restitution in a single order, only one time payment fee may be assessed. The time payment fee is a "cost of court" for purposes of priority of payment.

TRD-9800336

Request for Opinions

RQ-1048. Request from the Honorable Kenny Marchant, Chair, Committee on Financial Institutions, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910 regarding contracts for work and materials under the home equity amendment, subdivision (5) of article XVI, section 50(a), Texas Constitution (Request No. 1048)

RQ-1049. Request from the Honorable Kenny Marchant, Chair, Committee on Financial Institutions, Texas House of Representatives, P.O. Box 2910, Austin, Texas, 78768-2910, regarding authority to make home equity loans under various circumstances (Request No. 1049)

RQ-1050. Request from the Honorable John W. Smith, District Attorney Ector County, 300 North Grant, Room 305, Odessa, Texas, 79761, regarding authority of a county to modify the terms of a contract without reletting bids (Request No. 1050)

RQ-1051. Request from the Honorable Robert Junell, Chair, House Appropriations Committee, Texas House of Representatives, P.O. Box 2910, Austin, Texas, 78768-2910, regarding sale of real property on land adjacent to Lake Nasworthy by the City of San Angelo (Request No. 1051)

RQ-1052. Request from the Honorable David Counts, Chair, Natural Resources Committee, Texas House of Representatives, P.O. Box 2910, Austin, Texas, 78768-2910, regarding authority of a conservation and reclamation district to employ peace officers, and related questions (Request No. 1052)

RQ-1053. Request from the Honorable Don Schnebly, District Attorney, 43rd Judicial District, Parker County, Weatherford, Texas, 76086, regarding status of work performed by a county attorney while he simultaneously held the office of municipal judge (Request No. 1053)

RQ-1054. Request from the Honorable Michael P. Fleming, Harris County, Attorney, 1001 Preston, Suite 634, Houston, Texas, 77002-1891, regarding disposition of interest earned on the "hot check fund" administered by a district attorney (Request No. 1054)

RQ-1055. Request from the Honorable Mark F. Pratt, Hill County Attorney, P.O. Box 253, Hillsboro, Texas 76645, regarding allocation of the road and bridge fund in Hill County (Request No. 1055)

RQ-1056. Request from the Honorable Suzanne Bauer, Hopkins County, Auditor, P.O. Box 288, Sulphur Springs, Texas, 75483, regarding validity of pretrial diversions in misdemeanor cases (Request No. 1056)

RQ-1057. Request from the Honorable David Counts, Chair, Natural Resources Committee, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, regarding eligibility of various persons to serve on an appraisal review board in a county with a population of 300,000 or less (Request No. 1057)

RQ-1058. Request from the Honorable Michael P. Fleming, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas, 77002-1891, regarding whether reserve law enforcement officers are within the scope of §612.004, Government Code, which requires political subdivisions to furnish automobile liability coverage for peace officers (Request No. 1058)

RQ-1059. Request from the Honorable Michael P. Fleming , Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas 77002-1891, regarding fees for autopsy reports (Request No. 1059)

TRD-9800456