TITLE attorney-general

Letter Opinions

LO# 98-119 (RQ-1026). Requested from Mr. Jay Brummett, Chair, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas, 78711-2188, concerning whether the licensing and registration requirements of article 6573a, V.T.C.S., apply to persons who act to acquire or dispose of real estate on behalf of their employers.

Summary. The licensing and registration requirements of article 6573a, V.T.C.S., the Real Estate License Act, do not apply to employees of corporations and other business entities who act to acquire or dispose of property on behalf of their employer. Employees of a registered corporation or business entity who act as agents in third party transactions may not lawfully perform the acts listed under section 9A of article 6573a, V.T.C.S., unless they are licensed, exempt, or registered under the act.

LO# 98-120 (ID# 37188). Requested from The Honorable David M. Williams, County Attorney, County of San Saba, San Saba, Texas, 76877, concerning whether a county or a school district may require a landowner to remove a gate that the landowner constructed across a third-class road.

Summary. A landowner must remove a gate across a third-class road if, in accordance with Transportation Code section 251.009(d), the commissioners court has constructed a cattle guard to replace the gate.

LO# 98-121 (RQ-1065). Requested from The Honorable Robert T. Jarvis, County Attorney, Grayson County Justice Center, Suite 116A, Sherman, Texas, 75090, seniority of police officer who accepts voluntary demotion pursuant to section 143.054, Local Government Code.

Summary. A police officer does not waive his seniority rights by accepting a voluntary demotion pursuant to section 143.054 of the Local Government Code. "Seniority" is defined as years of service, whether interrupted or uninterrupted.

LO# 98-122 (RQ-1081). Requested from William R. Archer III, M.D., Commissioner of Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas, 78756-3199, concerning whether Health and Safety Code section 673.002, which requires the commissioner of health to review and authorize payment by the comptroller for autopsies performed on children under the age of two years, has been superseded by Family Code chapter 264, subchapter F.

Summary. The obligation of the commissioner of health to review and authorize payment of claims for the reasonable and proper cost of autopsies conducted pursuant to Health and Safety Code section 673.002 has been superseded by Family Code, chapter 264. Children younger than two years old who die suddenly of an unknown cause would be included within the scope of Family Code chapter 264, and an autopsy would be required in the course of the death investigation.

LO# 98-123 (RQ-1131). Requested from The Honorable Jerry Patterson, Chair, Committee on Veteran Affairs and Military Installations, Texas State Senate, P.O. Box 12068, Austin, Texas, 78711-2068, concerning whether a retired military officer may carry a firearm under the provisions of House Bill 2909 Act of June 1, 1997, 75th Leg., R.S., ch. 1261, 13, 1997 Tex. Gen. Laws 4766, 4771.

Summary. A retired military officer is not exempted from the statutory requirements imposed upon other licensees seeking to carry a concealed handgun under the provisions of Government Code, chapter 411, subchapter H.

LO# 98-124 (RQ-1103). Requested from The Honorable Michael P. Fleming, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas, 77002-1891, concerning whether an individual may simultaneously serve as municipal judge and as a director of the Gulf Coast Waste Disposal Authority, and a related question.

Summary. A municipal judge of the City of Houston and a director of the Gulf Coast Waste Disposal Authority each hold civil offices of emolument within article XVI, section 40 of the Texas Constitution. That constitutional provision bars one person from simultaneously holding both offices. Pursuant to sections 49.058 and 49.214 of the Water Code, chapter 171 of the Local Government Code applies to directors of the Gulf Coast Waste Disposal Authority and to the contracts entered into by the authority.

LO# 98-125 (RQ-1152). Requested from Mr. Steve Robinson, Executive Director, Texas Youth Commission, P.O. Box 4260, Austin, Texas, 78765, concerning whether out-of-state juvenile adjudicated delinquent for a sexual offense and transferred to Texas for probation pursuant to Uniform Interstate Compact on Juveniles may be required to register as sex offender.

Summary. A youth adjudicated delinquent in another state for a sex offense is not required by the Texas Sex Offender Registration Program, Code of Criminal Procedure chapter 62, to register in Texas as a sex offender. A juvenile probation officer may not require a delinquent juvenile transferred to Texas for probation supervision pursuant to the Uniform Interstate Compact on Juveniles to register as a sex offender.

LO# 98-126 (RQ-1069). Requested from Ms. Linda Cloud, Executive Director, Texas Lottery Commission, P.O. Box 16630, Austin, Texas, 78761-6630, concerning whether the Texas Lottery Commission may establish a priority of payments for monies deducted from lottery winnings.

Summary. The Lottery Commission may not adopt a rule establishing a priority of payments for monies deducted from a lottery winner's winnings. The Lottery Commission must comply with statutes establishing priority, however, such as Family Code section 158.008. Payments not subject to a statutory priority must be prorated among the various recipients.

LO# 98-127 (RQ-1117). Requested from Mr. Dudley M. Thomas, Director, Texas Department of Public Safety, 5805 North Lamar Boulevard, Box 4087, Austin, Texas, 78773-0001, concerning whether the 1997 amendment to Transportation Code section 642.002, which requires certain motor vehicles to have markings identifying the address of the vehicle's owner or operator, is invalid because it was intended to impose the address requirement only on tow trucks, and related question.

Summary. The 1997 amendment to Transportation Code section 642.002, which requires certain motor vehicles to have markings identifying the address of the vehicle's owner or operator, is not invalid because it may have been intended to impose the address requirement only on tow trucks. The Department of Transportation may not adopt a rule modifying its enforcement of section 642.002 to conform to the legislative intent rather than the plain language of the statute.

TRD-9900193

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: January 13, 1999

Opinions

Opinion #DM-494 (RQ-1021). Requested from Mr. James D. Goerke, Executive Director, Advisory Commission on State Emergency Communications, 333 Guadalupe Street, Suite 2-212, Austin, Texas, 78701-3942, concerning whether an emergency communications district may unilaterally withdraw from participation in a regional 9-1-1 plan under Health and Safety Code chapter 771 and related questions.

Summary. Chapter 771 of the Health and Safety Code impliedly authorizes an emergency communication district that elected to participate in a regional plan for 9-1-1 service to unilaterally withdraw from the plan. Withdrawal from a plan is effective on the date determined by the district. The Advisory Commission on State Emergency Communications must distribute a portion of the wireless 9-1-1 emergency fees collected to the district that withdraws.

Opinion #DM-495. (RQ-1167). Requested from The Honorable Jerry Patterson, Chair, Committee on Veteran Affairs & Military Installations, Texas State Senate, P.O. Box 12068, Austin, Texas, 78711-2068, concerning whether the legislature may authorize a state agency to construe Texas Constitution article XVI, section 50, the home equity amendment.

Summary. The legislature has the power to enact any law that is not in violation of state or federal constitutional provisions. It may not, however, infringe upon the power of the judiciary to construe and interpret the constitution. Thus while the legislature may not, absent express constitutional authority, empower a state agency to definitively construe article XVI, section 50 of the Texas Constitution the home equity amendment the legislature may authorize a state agency to adopt rules implementing the requirements of the home equity amendment. Whether any legislative or administrative action is consistent with the requirements of the constitution is ultimately a question for the courts to decide. The constitution may be amended to create any law that the voters see fit to approve. The legislature may propose, and the voters may approve, a constitutional amendment authorizing a state agency to implement or construe provisions of the constitution.

Opinion #DM-496. (RQ-1145). Requested from Mr. Tom Treadway, Executive Director, General Services Commission, P.O. Box 13047, Austin, Texas, 78711-3047, concerning whether the Texas Council on Purchasing from People with Disabilities mandatory purchasing program conflicts with procedures governing the purchase of automated information systems set forth in chapter 2157 of the Government Code.

Summary. Human Resources Code chapter 122 and Government Code chapter 2157 conflict with respect to state agency purchases of automated information systems. Chapter 2157, the more specific provision, prevails to the extent of conflict. The General Services Commission or other state agency is precluded from purchasing an automated information system except in compliance with chapter 2157.

Opinion #DM-497. (RQ-1029). Requested from Mr. Willard L. Jackson, Jr., Chair, Board of Regents Texas Southern University, 3100 Cleburne Avenue, Houston, Texas, 77004, concerning validity of rider to appropriations act requiring certain state agencies to expend appropriated funds for training provided by the Texas Commission on Human Rights.

Summary. The rider to the 1997 appropriations act found at article IX, section 120.5, attempts to amend general law in violation of article III, section 35 of the Texas Constitution and is therefore invalid. Texas Southern University need not comply with its terms in choosing an outside agency to provide training sessions and equal employment opportunity seminars for its employees.

Opinion #DM-498. (RQ-1086). Requested from Mr. Ron Allen, Executive Director, Texas State Board of Veterinary Medical Examiners, 333 Guadalupe, Suite 2-330, Austin, Texas, 78701-3998, concerning whether business arrangements between corporations and practicing veterinarians constitute the practice of veterinary medicine, and related questions.

Summary. The Veterinary Licensing Act, article 8890, V.T.C.S., prohibits the practice of veterinary medicine by a private, for-profit corporation not owned exclusively by veterinarians. Such a corporation may not employ a licensed veterinarian to provide veterinary medical services and itself receive the fee for those services nor may it own the patient or business records or drug inventory of a veterinary medical practice. The Board of Veterinary Medical Examiners may discipline a licensee for permitting or allowing another to use his license or certificate to practice veterinary medicine. Remedies and penalties in the Veterinary Licensing Act for practicing veterinary medicine without a license do not apply to corporations.

Opinion #DM-499. (RQ-998). Requested from Ms. Delores L. Alspaugh, Interim Executive Director, Texas Cosmetology Commission, 5717 Balcones Drive, P.O. Box 26700, Austin, Texas, 78755-0700, concerning whether an applicant for a new or renewed cosmetologist's license must submit a health certificate signifying that the applicant is free of hepatitis.

Summary. The Texas Cosmetology Commission may, by rule, reasonably interpret the requirement in V.T.C.S. art. 8451a, section 31(a) that an applicant for a new or renewed cosmetologist's license be certified free of hepatitis. Whether, under the Americans with Disabilities Act, 42 U.S.C. ch. 126, the Cosmetology Commission may refuse to license an applicant who has viral hepatitis on the basis of the applicant's disease is a question that the commission must determine on a case-by-case basis. The commission must consider whether the viral hepatitis constitutes or is perceived to constitute, in that case, a physical or mental impairment that substantially limits at least one of the applicant's major life activities; whether freedom from viral hepatitis is an essential eligibility requirement to be licensed as a cosmetologist; and, if it is, whether the commission reasonably may accommodate the applicant.

Opinion #DM-500. (RQ-1144). Requested from The Honorable Toby Goodman, Chair, Committee on Juvenile Justice & Family Issues, Texas House of Representatives, P.O. Box 2910, Austin, Texas, 78768-2910, concerning advertising for placement of child for adoption.

Summary. Section 25.09, Penal Code, prohibits any person other than a licensed child-placing agency from advertising to place, provide, or obtain a child for adoption. Whether a publisher of an advertisement prohibited by section 25.09 is criminally responsible for the conduct of the advertiser depends upon the facts of the particular case. Whether Texas courts may exercise criminal jurisdiction over unlawful Internet advertisements or communications initiated outside of Texas, but received within the state, also depends upon the facts of the particular case. No Texas court or federal court with jurisdiction over Texas has addressed this issue.

TRD-9900190

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: January 13, 1999

Request for Opinions

RQ-1226. Requested from The Honorable James Warren Smith, Jr., Frio County Attorney, 500 East San Antonio Street, Box 1, Pearsall, Texas, 78061-3100, concerning authority of a county to make certain payments in advance of services rendered.

RQ-1227. Requested from The Honorable Jack Skeen, Jr., Smith County Attorney, 100 North Broadway, 304, Tyler, Texas, 75702, concerning whether a criminal district attorney may waive service of process by certified mail in habeas corpus case.

RQ-1228. Requested from The Honorable Florence Shapiro, Chair, Interim Committee on Sex Offenders, Texas State Senate, P.O. Box 12068, Austin, Texas, 78711, concerning whether "van access aisles" provided in parking spaces for the disabled constitute the kind of "architectural improvement" contemplated by subsection 681.011(c), Texas Transportation Code.

TRD-9900175

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: January 12, 1999

RQ-0001 Requested from Mr. Don W. Brown, Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas, 78711, concerning authority of a junior college district to lease property to a school district for the purpose of constructing a speciality high school, and related questions.

RQ-0002. Requested from The Honorable Michael P. Fleming, Harris County Attorney, 1019 Congress, 15th Floor, Houston, Texas, 77002-1700, concerning whether a commissioners court may set a maximum speed limit on certain county roads below 30 miles per hour, and related questions.

RQ-0003. Requested from The Honorable Carol Keeton Rylander, Comptroller of Public Accounts, LBJ State Office Building, Austin, Texas, 78774, concerning whether a municipality must collect a sales tax on parking fees at public beaches.

RQ-0004 Requested from Mr. Jay Kimbrough, Executive Director, Texas Board of Private Investigators and Private Security Agencies, P.O. Box 13509, Austin, Texas, 78711, concerning whether a municipality that offers alarm monitoring services for a fee is subject to the licensing requirements of article 4413(29bb), V.T.C.S.

TRD-9900176

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: January 12, 1998