TITLE attorney-general

Opinion No. JC-0443

The Honorable Charles D. Penick, Bastrop County Criminal District Attorney, 804 Pecan Street, Bastrop, Texas 78602

Re: Whether a county that contracts with an attorney for the collection of delinquent taxes may accept a gift from that attorney (RQ-0410-JC)

S U M M A R Y

When a county contracts with an attorney to collect delinquent taxes pursuant to section 6.30 of the Tax Code, section 33.07 authorizes the county to impose an additional penalty on the delinquent taxes to provide compensation for the contract attorney. The additional penalty authorized by section 33.07 of the Tax Code is solely for the purpose of providing compensation to the contract attorney, and the attorney may not make a donation to the county that in effect refunds part of his or her compensation to the county. Whether a particular donation is a refund of the attorney's compensation under section 33.07 is a fact question.

Opinion No. JC-0444

The Honorable Tully Shahan, Kinney County Attorney, P.O. Box 365, Brackettville, Texas 78832-0365

Re: Whether Kinney County is authorized to pay for the confirmation election for the Kinney County Groundwater Conservation District (RQ-0456-JC)

S U M M A R Y

Kinney County is not authorized to pay for the confirmation election for the Kinney County Groundwater Conservation District and may not make a donation or grant to the District for that purpose.

Opinion No. JC-0445

The Honorable David Cain, Chairman, Senate Committee on Administration, Texas State Senate, P.O. Box 12068, Austin, Texas 78711

Re: Whether the Texas Department of Health has exceeded its authority in adopting a rule requiring certain dietary supplements sold in Texas to bear a label with a United States Food and Drug Administration toll-free telephone number for reporting adverse events (RQ-0414-JC)

S U M M A R Y

The Texas Department of Health did not exceed its statutory authority in promulgating a rule requiring dietary supplements containing ephedrine to bear a label with the United States Food and Drug Administration MedWatch program's toll-free telephone number for reporting adverse events.

Opinion No. JC-0446

Mr. Jim Nelson, Commissioner of Education, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701-1494

Re: Whether a school district is required to expel a student who commits certain alcohol-and drug-related felonies within 300 feet of school property (RQ-0415-JC)

S U M M A R Y

A school district is not required to expel a student whose conduct: (1) constitutes a felony; (2) would require removal under section 37.006(a)(2)(C) or (D) of the Education Code; (3) does not occur on school property or while attending a school-sponsored or school-related activity on or off of school property; and (4) does occur within 300 feet of school property as defined in section 37.006(a)(2).

Opinion No. JC-0447

The Honorable Patrick B. Haggerty, Chair, House Corrections Committee, Texas House of Representatives, P. O. Box 2910, Austin, Texas 78768-2910

Re: Whether a hospital may contract exclusively with a single medical insurance provider (RQ-0407-JC)

S U M M A R Y

Whether a particular exclusive contract between a public or private hospital and a medical insurance provider violates the Texas Free Enterprise and Antitrust Act of 1983 depends on whether it has an actual adverse effect on competition in the relevant market by foreclosing competition in a substantial share of that market. Exclusive dealing arrangements do not, as a matter of law, violate the Act.

Opinion No. JC-0448

The Honorable Clyde Alexander, Chair, Committee on Transportation, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910

Re: Validity of a rider to the general appropriations act requiring the Texas Department of Transportation to sign an agreement with the City of El Paso in order to expend funds to build a border inspection station (RQ-0419-JC)

S U M M A R Y

Rider 63 to the appropriation to the Texas Department of Transportation in the 2001 General Appropriations Act is invalid because it attempts to amend a statute in violation of article III, section 35 of the Texas Constitution. Section 201.613 of the Transportation Code provides that the Department of Transportation shall choose a location for an inspection station in three named cities and does not require the city to agree to the choice of location. Rider 63 provides that appropriated funds may not be spent on the inspection station unless the Department secures the city's written agreement that the location, plans, and implementation strategy for the proposed facility are acceptable to all parties involved. Because the rider attempts to amend section 201.613 of the Transportation Code, it is invalid.

For further information, please contact the Opinion Committee at (512) 463-2110 or access their website at www.oag.state.texas.us .

Assistant Attorney General

Office of the Attorney General

Filed: January 2, 2002