Opinions
Opinion No. JC-0218.
The Honorable Al Schorre, Midland County District Attorney, Midland County
Courthouse, 200 West Wall, Suite 201, Midland, Texas 79701, regarding whether
the Concho Valley Council of Governments, which operates a transport service
for Medicaid patients under contract with the Texas Department of Health,
is subject to the City of Midland's taxicab ordinance (RQ-0138-JC).
S U M M A R Y.
To the extent that the City of Midland's taxicab ordinance is by its terms
applicable to a transport service operated by the Concho Valley Council of
Governments, neither the fact that the Council of Governments is a political
subdivision nor the fact that it is operating the service under a contract
with the Texas Department of Health exempts it from the ordinance.
Opinion No. JC-0219.
The Honorable Chris D. Prentice, Hale County Attorney, 500 Broadway, Suite
#80 Plainview, Texas 79072, regarding whether local governments that operate
utilities or sanitary landfills may enter into an interlocal cooperation contract
whereby the parties to the contract would agree to collect unpaid fees owed
to the other parties and to refuse service to customers who owe fees to the
other parties (RQ-0165-JC).
S U M M A R Y.
Local governments that operate utilities or sanitary landfills may not
enter into an interlocal cooperation contract under the Interlocal Cooperation
Act, Tex. Gov't Code Ann. ch. 791 (Vernon 1994 & Supp. 2000), whereby
the parties to the contract would agree to collect unpaid fees owed to the
other parties and to refuse service to customers who owe fees to the other
parties, because an agreement to withhold services from third parties is not
an agreement between local governments to provide to each other "a governmental
function or service that each party to the contract is authorized to perform
individually," see id. 791.011(c)(2) (Vernon Supp. 2000).
Opinion No. JC-0220.
The Honorable David Counts, Chair, Committee on Natural Resources, Texas
House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, regarding
whether a hospital district may continue to levy a tax after closing its hospital
and related questions (RQ-0149-JC).
S U M M A R Y.
Garza Hospital District was authorized to close its hospital if the District's
Board of Directors determined that closing the hospital was in the best interest
of the District's residents and the Board otherwise complied with the statutory
procedures. Similarly, the District was authorized to lease its hospital facilities
to a private hospital system for the operation of a clinic to provide hospital
and medical care to the District's needy inhabitants if the District Board
of Directors determined that the lease was in the best interest of the District's
residents. Because closure of the hospital does not relieve the District of
its responsibility to provide and pay for needy residents' hospital and medical
care, the District may continue to levy a tax and use the proceeds to make
payments under a contract to provide that care. The District may through this
contract offer medical care to nonindigent Garza County residents, provided
the District charges those persons the actual cost of the services. The District
may not be dissolved pursuant to an election because there is no statutory
authority to call and hold a dissolution election with respect to the District.
For further information, please call (512) 463-2110
TRD-200003523
Elizabeth Robinson
Assistant Attorney General
Office of the Attorney General
Filed: May 22, 2000
Opinion No. JC-0221
Mr. Jim Nelson, Commissioner of Education, Texas Education Agency, 1701
North Congress, Austin, Texas, 78701, regarding whether payments made to a
departing superintendent described as settlement of actual or contemplated
litigation are "severance payments" under §11.201(c) of the Education
Code, and related questions. (RQ-0142-JC)
S U M M A R Y.
Under §11.201(c) of the Education Code, "severance payment" is compensation
paid to a superintendent beyond his or her wages upon early termination of
the employment relationship by a school district. A payment, however, in settlement
of actual or threatened litigation is not a severance payment under §11.201(c).
A payment to a terminated superintendent described as a settlement of actual
or threatened litigation is a §11.201(c) severance payment if there is
no actual or bona fide claim. Section 11.201(c) severance payments are not
limited to amounts due under the terminated employment contract and do not
exclude insurance premiums or benefit payments made after the termination
as a matter of law. Payments for contrived consulting services are §11.201(c)
severance payments. Whether amounts paid in any particular case are severance
payments will depend on the termination agreement and the surrounding factual
circumstances.
Opinion No. JC-0222
Ms. Susan A. Spataro, C.P.A., C.M.A., Travis County Auditor, P.O. Box 1748,
Austin, Texas, 78767, regarding clarification of Attorney General Opinion
JC-0102 (1999). (RQ-0157-JC)
S U M M A R Y.
Attorney General Opinion JC-0102 (1999) was based on the understanding
that Travis County had paid the costs taxed in certain mental health services
proceedings conducted in the county where another county was responsible for
paying the costs. Its conclusions as to the clerk's duty to seek reimbursement
of those costs from the other county must be read in connection with that
premise.
Section 571.018(b) of the Health and Safety Code requires the clerk of
the court in which a mental health services proceeding is held to bill the
costs of the proceeding to the county that is responsible for paying those
costs. The county clerk has a duty to collect from the responsible county
the costs listed under §571.018 of the Health and Safety Code.
Opinion No. JC-0223
The Honorable Ben W., Bud, Childers, Fort Bend County Attorney, 301 Jackson,
Suite 621, Richmond, Texas, 77469-3108, regarding what constitutes a "newspaper
of general circulation" for the purpose of publishing legal notices, and related
questions. (RQ-0160-JC)
S U M M A R Y.
A newspaper of general circulation is a newspaper that has more than a
de minimis number of subscribers among a particular geographic region, that
has a diverse subscribership, and that publishes some items of general interest
to the community. See also Texas Government Code Annotated §2051.044(a)
(Vernon 2000) (defining "newspaper"). Whether a particular newspaper is generally
circulated is a question of fact. In determining whether a particular newspaper
is a newspaper of general circulation for the purposes of publishing official
notices, a governmental entity may not combine the subscriber numbers of that
newspaper with the circulation numbers of a separate newspaper that is sent
out free of charge to nonsubscribers.
So long as the specification relates to the quality of the goods and services
a county desires to purchase, the commissioners court may specify, in a request
for bids, the minimum number of subscribers a newspaper bidding on a contract
to publish county notices must have. A county must "base its lowest and best
bid criteria" on the newspaper's lowest published rate for classified advertising.
See id. §2051.045. A county may not publish notice in a newspaper of
general circulation if such a newspaper would be inconsistent with the specific
statute requiring the notice.
Opinion No. JC-0224
The Honorable Frank Madla, Chair, Committee on Intergovernmental Relations,
Texas State Senate, P.O. Box 12068, Austin, Texas, 78711, regarding whether
a school district may procure "guaranteed program management" services under
the Professional Services Procurement Act, chapter 2254 of the Government
Code (RQ-0150-JC)
S U M M A R Y.
A school district may not under the Professional Services Procurement Act
contract for "guaranteed program services" that include both construction
manager-at-risk and architect and engineering services to be rendered by a
single "program manager." Attorney General Opinion JM-940 (1988) is superseded
by statute.
Opinion No. JC-0225
The Honorable Jeff Wentworth, Chair, Nominations Committee, Texas State
Senate, P.O. Box 12068, 1E.9, Austin, Texas, 78711-2068, regarding whether
a member of a city council may appoint himself to a city board under a particular
ordinance (RQ-0152-JC)
S U M M A R Y.
The common-law doctrine of incompatibility prevents an officer with appointing
power from appointing himself to another office or position. While an ordinance
of a home-rule city may exempt city offices from this rule, it may not exempt
a city council appointment to the governing body of another political subdivision
from the common-law doctrine of incompatibility. San Antonio, a home-rule
city, lacks authority to adopt an ordinance providing that a member of the
city council may be appointed by the city council to serve on the Board of
the Greater Kelly Development Authority.
For further information, please call (512) 463-2110
TRD-200003674
Rick Gilpin
Assistant Attorney General
Office of the Atorney General
Filed: May 24, 2000