Opinions
(Editor's Note: Due to an error by the Texas Register,
the following Attorney General Opinions were omitted from the March 28, 2003,
issue of the Texas Register.)
Opinion No. GA-0032
The Honorable Kenneth Armbrister
Chair, Senate Committee on Natural Resources
Texas State Senate
P. O. Box 12068
Austin, Texas 78711-2068
Re: Whether a member of the Board of Trustees of the San Jacinto College
District may simultaneously serve as a member of the Board of Directors of
the Clear Brook Municipal Utility District (RQ-0596-JC)
S U M M A R Y
Although the position of director of the Clear Brook Municipal Utility
District is an "office of emolument under article XVI, section 40 of the Texas
Constitution," the position of trustee of the San Jacinto College District
is not. Thus, a single individual is not prohibited by article XVI, section
40 of the Texas Constitution from simultaneously holding both positions. An
individual is, however, barred from such simultaneous service on the basis
of the common-law doctrine of incompatibility.
Opinion No. GA-0033
Mr. Albert Hawkins
Commissioner
Texas Health and Human Services Commission
P.O. Box 13247
Austin, Texas 78711
Re: Whether the Texas Community Health Center Revolving Loan Fund exists
as a trust fund outside the state treasury; whether loan income is the property
of the Fund; and whether chapter 136 of the Human Resources Code, which establishes
the Fund, violates article III, sections 1, 50 and 51 of the Texas Constitution
(RQ-0602-JC)
S U M M A R Y
In House Bill 2574, the Seventy-seventh Texas Legislature created the Texas
Community Health Center Revolving Loan Fund as a trust fund outside the state
treasury administered by the Health and Human Services Commission pursuant
to chapter 136 of the Human Resources Code.
See
Act
of May 23, 2001, 77th Leg., R.S., ch. 878, §1, sec. 136.003, 2001 Tex.
Gen. Laws 1759, 1760 (enacting Human Resources Code section 136.003). A later
enacted bill, House Bill 3088, abolished the Fund.
See
Act of May 25, 2001, 77th Leg., R.S., ch. 1466, §§2,
8(a), (d), 2001 Tex. Gen. Laws 5216, 5218-19. As a result, the Fund does not
exist as a trust fund outside the state treasury.
Pursuant to sections 136.006(e) and 136.008 of the Human Resources Code,
income on a loan made by the development corporation under chapter 136 is
the property of the development corporation that the development corporation
must use to make new loans.
See
Tex. Hum.
Res. Code Ann. §§136.006(e), 136.008 (Vernon Supp. 2003). Chapter
136 of the Human Resources Code on its face does not violate article III,
sections 50 and 51 or article III, section 1 of the Texas Constitution.
Opinion No. GA-0034
The Honorable Dib Waldrip
Comal County Criminal District Attorney
150 North Seguin, Suite 307
New Braunfels, Texas 78130
Re: Whether a county may require the owner of a "junked vehicle" to erect
a fence or other screening objects in order to shield the vehicle from public
view (RQ-0605-JC)
S U M M A R Y
A county may abate and remove as a "public nuisance" any "junked vehicle"
that is visible from public or private property or a public right-of-way.
A county may not require a particular kind of camouflage to render the vehicle
non-visible. The fencing and screening standards applicable to licensed automotive
salvage yards and junkyards under chapter 396 of the Transportation Code do
not apply to junked vehicles parked on other private property.
Opinion No. GA-0035
The Honorable Mary Denny
Chair, Committee on Elections
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910
Re: Whether questioning by the Texas Ethics Commission of third-party witnesses
to the circumstances giving rise to a sworn complaint violates section 571.140
of the Government Code (RQ-0599-JC)
S U M M A R Y
It is not a
per se
violation of section
571.140 of the Government Code for the staff of the Texas Ethics Commission
to question third-party witnesses concerning a situation that has given rise
to a sworn complaint.
Opinion No. GA-0036
Ms. Karen Lundquist
Executive Director
Texas Ethics Commission
P. O. Box 12070, Capitol Station
Austin, Texas 78711-2070
Re: Whether the Texas Ethics Commission, in providing to the respondent
in a commission- initiated complaint information that was obtained in connection
with another sworn complaint, violates the confidentiality provision of section
571.140 of the Government Code (RQ-0601-JC)
S U M M A R Y
Under certain circumstances, the Texas Ethics Commission may be obliged
under chapter 571 of the Government Code and Commission rules to provide documents
relating to a sworn complaint against one respondent to another respondent.
Doing so in those circumstances does not violate section 571.140 of the Government
Code, so long as the documents are properly redacted.
Opinion No. GA-0037
The Honorable Tom Maness
Jefferson County Criminal District Attorney
Jefferson County Courthouse
1001 Pearl Street, Third Floor
Beaumont, Texas 77701-3545
Re: County commissioners court's authority over hiring and budgetary matters
concerning an elected county officer (RQ-0603-JC)
S U M M A R Y
A commissioners court may not impose the condition on a position of employment
in an elected official's department such that, if the present employee vacates
the position, funds for the position's salary either (1) will cease unless
the officer obtains the commissioners court's special permission to hire someone
who is not currently a county employee, or (2) will be reduced to increase
a promoted existing employee's salary no more than three percent. Such a condition
interferes with an elected officer's authority to appoint an employee of his
or her choice to a position that the commissioners court has approved and
for which the court has set compensation. For the same reason, a commissioners
court may not "freeze" a vacant position and condition filling the position
on promoting an existing county employee or obtaining the court's special
permission.
A commissioners court may transfer funds from one line item in the county
budget to another existing line item in the county budget without authorizing
an emergency expenditure. See Tex. Loc. Gov't Code Ann. §111.070(c) (Vernon
1999). Thus, to the extent that a budget amendment consists of transferring
funds from one budgeted item to another, section 111.070(c) of the Local Government
Code clearly authorizes the court to so amend the county budget, even in the
absence of an emergency. See id. On the other hand, to the extent that a proposed
amendment is not a mere transfer, the court may not accomplish the amendment
in the absence of an emergency. See id. §111.070(b)-(c).
In general, a county commissioners court has discretionary authority to
approve an expenditure proposed by a county officer after the annual budget
is adopted, although the court may not, by refusing to approve a requested
expenditure, interfere with an elected officer's ability to perform his or
her legal duties.
Opinion No. GA-0038
The Honorable Kevin Bailey
Chair, Committee on General Investigating
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910
Re: Authority of the Texas Education Agency to make a coordinated health
program available to elementary schools (RQ-0606-JC)
S U M M A R Y
Pursuant to section 38.013 of the Education Code, the Texas Education Agency
may provide "a coordinated health program designed to prevent obesity, cardiovascular
disease, and Type II diabetes in elementary school students" to school districts
by approving one or more sets of educational materials prepared by outside
providers that fulfill the requirements of the coordinated health program
described in the statute. Tex. Educ. Code Ann. § 38.013 (Vernon Supp.
2003); see Tex. Gov't Code Ann. §311.012(a) (Vernon 1998).
Opinion No. GA-0039
The Honorable Michael A. Stafford
Harris County Attorney
1019 Congress, 15th Floor
Houston, Texas 77002-1700
Re: Whether Harris County may participate in the design and construction
of a toll bridge from Galveston Island to Point Bolivar (RQ-0608-JC)
S U M M A R Y
Because no part of the proposed Bolivar bridge project is located within
Harris County, nor connected to a facility that is controlled by the Harris
County Toll Road Authority, the Authority may not participate in the design
and construction of a toll bridge from Galveston Island to Point Bolivar.
Opinion No. GA-0040
The Honorable Joe Driver
Chair, House Committee on Law Enforcement
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910
Re: Whether the Texas Department of Insurance is authorized to enforce
certain provisions of the Health Maintenance Organization Act, Tex. Ins. Code
Ann. ch. 20A, against physicians who are not under contract with a health
maintenance organization (RQ-0597-JC)
S U M M A R Y
The Health Maintenance Organization Act, Tex. Ins. Code Ann. ch. 20A (Vernon
1981 & Supp. 2003), does not prohibit a physician who is not under contract
with an HMO from billing an HMO enrollee for charges not paid by the HMO.
The Department of Insurance is not authorized to enforce the Act to prohibit
such a physician from balance billing an enrollee of the HMO.
Opinion No. GA-0041
The Honorable Peggy Hamric
Chair, Committee on House Administration
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910
Re: Whether chapter 143 of the Local Government Code, which provides civil
service protection for certain municipal employees, applies to certain fire
department employees (RQ-0604-JC)
S U M M A R Y
In accordance with Local Government Code section 143.003(4), a fire department
member whose position requires substantial knowledge of fire fighting and
work in the fire department is entitled to civil service protection in a municipality
that has adopted a civil service system. In addition, a position that is among
those included within section 143.003(4)(A)-(J) is a fire fighter entitled
to civil service protection as a matter of law. Whether a particular fire
department member satisfies a municipality's definition of fire fighter is
immaterial if that member holds a position that requires substantial knowledge
of fire fighting and work in the fire department or the member holds one of
the positions listed in (A) through (J).
A person who is not a fire department member is not entitled to civil service
protection under chapter 143 of the Local Government Code. Thus, a city's
communications personnel, who comprise a department separate from, and independent
of, the city's fire department, are not members of the fire department and
are not entitled to civil service status under chapter 143.
Under chapter 143, only a fire department member who has held a position
that is entitled to civil service protection for at least six months before
the municipality adopted its civil service system may retain the position
without complying with civil service requirements. In other circumstances,
an employee whom a municipality has employed as a fire department member without
substantially complying with civil service requirements may not retain his
or her position.
Opinion No. GA-0042
The Honorable Jeb McNew
Montague County Attorney
Montague County Courthouse
P.O. Box 336
Montague, Texas 76251-0336
Re: Whether an inmate in a county jail has the right to choose a medical
provider and whether an inmate who refuses to use the provider designated
by the sheriff's office has refused medical treatment (RQ-0609-JC)
S U M M A R Y
A county jail inmate does not have the right to choose a medical provider.
Whether an inmate's refusal to use the medical provider selected by the sheriff's
office constitutes refusal of any and all medical treatment will depend upon
the facts.
For further information, please access the website
at www.oag.state.tx.us.
or call the Opinion
Committee at (512) 463-2110.
TRD-200301822
Nancy S. Fuller
Assistant Attorney General
Office of the Attorney General
Filed: March 19, 2003
Opinion No. GA-0046
The Honorable Dib Waldrip
Comal County Criminal District Attorney
150 North Seguin, Suite 307
New Braunfels, Texas 78130
Re: Time at which a vacancy is created under the terms of Local Government
Code section 22.010(d) in a type A general-law municipality (RQ-0610-JC)
S U M M A R Y
Pursuant to section 201.023 of the Election Code, a vacancy would occur
on the city council of a type A general-law city when the resignation is accepted
by the city council or on the eighth day after the date the city receives
the resignation, whichever is earlier. Assuming that city council members
serve two-year terms so that vacancies on council are not required to be filled
by election pursuant to Texas Constitution article XI, section 11, the city
council may time its acceptance of the resignations to avoid holding an election
to fill two vacancies pursuant to Local Government Code section 22.010(d).
To do so, it must fill one vacancy before the other vacancy occurs on the
eighth day after the city receives the resignation. Attorney General Opinion
MW- 401 (1981) is modified by legislation as stated in this opinion.
Opinion No. GA-0047
The Honorable William M. Jennings
Gregg County Criminal District Attorney
101 East Methvin Street, Suite 333
Longview, Texas 75601
Re: Whether a municipal risk pool established under chapter 172 of the
Local Government
Code is subject to certain Insurance Code provisions (RQ-0617-JC)
S U M M A R Y
The mental health parity requirement in article 3.51-5A of the Insurance
Code applies to a city's risk pool established under section 172.005(a) of
the Local Government Code. A city is not bound, however, by the prohibition
against treating pregnancy as a preexisting condition, found in article 26.90(d)
of the Insurance Code. A city's risk pool may not charge a deductible for
child immunizations required under article 21.53F, section 3 of the Insurance
Code, even if the child receives the immunizations from an out-of-network
provider.
Opinion No. GA-0048
The Honorable Ken Armbrister
Chair, Senate Committee on Natural Resources
Texas State Senate
P.O. Box 12068
Austin, Texas 78711
Re: Authority of a judge or magistrate to attach a financial condition
to a personal bond or to permit a cash deposit of less than the full bail
amount (RQ-0618-JC)
S U M M A R Y
A judge or magistrate may not attach a financial condition to a personal
bond, or authorize the deposit of less than the full cash amount of bail.
Opinion No. GA-0049
The Honorable Susan Combs, Commissioner
Texas Department of Agriculture
P.O. Box 12847
Austin, Texas 78711
Re: Whether the Texas Corn Producers Board may collect an assessment on
corn ensilage (RQ-0619-JC)
S U M M A R Y
Corn ensilage is not "corn" for purposes of the 1980 and 1990 referenda
authorizing the Texas Corn Producers Board to collect an assessment on corn.
The Board may not collect an assessment on "corn ensilage" unless the corn
producers of the state approve such an assessment in an election held under
section 41.084 of the Agriculture Code.
Opinion No. GA-0050
The Honorable Kevin Bailey
Chair, Committee on General Investigating
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910
Re: Whether, for purposes of section 155.003 (c)(1) of the Occupations
Code, an international medical school graduate who trained in the United States
in a program of graduate medical education that is accredited in a particular
specialty but not accredited in the related subspecialty in which the graduate
received training has received medical education from a program accredited
"in the same subject" as the specialty (RQ-0621-JC)
S U M M A R Y
The Texas State Board of Medical Examiners may decline to license an international
medical school graduate who received training in the United States in a graduate
medical education program that is accredited in a particular specialty but
not accredited in the subspecialty in which the applicant trained. A specialty
and a subspecialty within it are not the "same subject" for the purposes of
section 155.003(c)(1) of the Occupations Code and related rules. Whether such
a graduate completed sufficient training in the accredited specialty to be
eligible for licensing on that basis is a question of fact for the Board to
resolve.
The fact that an agency charged with administering a particular statute
has interpreted the statute differently over the years does not mean, as a
matter of law, that the agency's current interpretation is unreasonable.
Opinion No. GA-0051
The Honorable Dib Waldrip
Comal County Criminal District Attorney
150 North Seguin, Suite 307
New Braunfels, Texas 78130
Re: Whether Attorney General Opinion JC-0471 (2002) correctly construes
section 152.013(c) of the Local Government Code (RQ-0615-JC)
S U M M A R Y
Under section 152.013(c) of the Local Government Code, a commissioners
court must notify elected county and precinct officers of proposed salaries
and expenses after the court has received a proposed budget from the county
judge, but sufficiently before the court's approval of the budget to permit
an aggrieved officer to request a hearing before the salary grievance committee
and to permit the salary grievance committee to determine the grievance consistently
with section 152.016.
See
TEX. LOC. GOV'T
CODE ANN. §§ 152.013(c), 152.016 (Vernon 1999). To the extent Attorney
General Opinion JC-0471 suggests that a commissioners court may notify officers
under section 152.013 only after having adopted the budget, the opinion is
modified. See Tex. Att'y Gen. Op. No. JC-0471 (2002) at 2. To the same extent,
Attorney General Opinion DM-405 is modified. See Tex. Att'y Gen. Op. No. DM-405
(1996) at 4.
Opinion No. GA-0052
The Honorable Michael A. Stafford
Harris County Attorney
1019 Congress, 15th Floor
Houston, Texas 77002-1700
Re: Whether section 550.065(d) of the Transportation Code requires a governmental
body to use the guidelines established by the Texas Building and Procurement
Commission when calculating the "actual cost" of making a noncertified copy
of an accident report (RQ-0611-JC)
S U M M A R Y
Section 550.065(d) of the Transportation Code provides that the fee for
copies of accident reports and accident information is $6 or the actual cost
of preparing the copy, whichever is less. Because section 550.065 does not
define "actual cost," governmental agencies must use the Texas Building and
Procurement Commission's guidelines under the Public Information Act to calculate
the "actual cost" of making a noncertified copy of an accident report subject
to the limit of $6 established by the Transportation Code.
Opinion No. GA-0053
The Honorable Mark E. Price
San Jacinto County Criminal District Attorney
1 State Highway 150, Room 21
Coldspring, Texas 77331
Mr. Ray Stelly, C.P.A.
San Jacinto County Auditor
1 State Highway 150, Room B1
Coldspring, Texas 77331
Re: Auditing of certain accounts held by a criminal district attorney (RQ-0624-JC)
S U M M A R Y
State funds distributed to a prosecutor under the Professional Prosecutors
Act or article 104.004 of the Code of Criminal Procedure are not subject to
the special audit provision of section 115.032 of the Local Government Code.
"Hot check" funds established under article 102.007 of the Code of Criminal
Procedure are subject to such audit. A district attorney's authority over
the disposition of "hot check" proceeds does not empower him to make multi-year
contracts binding them in violation of article XI, section 7 of the Texas
Constitution. Funds distributed to a district attorney under the Professional
Prosecutors Act are to be deposited in the county treasury.
Opinion No. GA-0054
The Honorable Stephen E. Ogden
Chair, Senate Infrastructure Development
and Security Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711-2068
Re: Whether, "in the case of emergency and imperative public necessity
and with a four- fifths vote of the total membership of each House," the legislature
may, pursuant to article III, section 49a of the Texas Constitution, authorize
expenditures in excess of the amount of cash and anticipated revenues certified
by the Comptroller of Public Accounts (RQ-0025-GA)
S U M M A R Y
In order to appropriate funds that exceed the amount of cash and anticipated
revenue certified by the Comptroller of Public Accounts, an appropriation
bill must state the legislature's finding that an "emergency or imperative
public necessity" exists, and the bill must then be enacted by a four-fifths
vote of the full membership of each house of the legislature.
For further information,
please access the website at www.oag.state.tx.us.
or call the Opinion Committee at 512/ 463-2110.
TRD-200302183
Nancy S. Fuller
Assistant Attorney General
Office of the Attorney General
Filed: April 2, 2003
(Editor's Note: Due to an error by the Texas Register,
the following Attorney General Request for Opinions were omitted from the
March 28, 2003, issue of the Texas Register.)
RQ-0021-GA
The Honorable Ismael "Kino" Flores, Chair, Licensing and Administrative
Procedures Committee, Texas House of Representatives, P.O. Box 2910 Austin,
Texas 78768-2910
Re: Construction of section 47.01(4)(B), Penal Code, which relates to the
definition of "gambling device"; and determination of limitation on sweepstakes
promotions under chapter 43 of the Business and Commerce Code (Request No.
0021-GA)
Briefs requested by April 12, 2003
RQ-0022-GA
The Honorable Tim Curry, Tarrant County Criminal District Attorney Justice
Center, 401 West Belknap Fort Worth, Texas 76196-0201
Re: Whether section 1704.304 of the Occupations Code, which prohibits certain
persons from recommending the employment of a bail bond surety or of an attorney
or law firm to a criminal defendant, precludes those persons from furnishing
a list of multiple attorneys or bail bond sureties (Request No. 0022-GA)
Briefs requested by April 12, 2003
RQ-0023-GA
The Honorable Michael A. Stafford, Harris County Attorney, P.O. Box 920975,
Houston, Texas 77292-0975
Re: Construction of sections 11.26 and 23.23, Tax Code, regarding the valuation
of repairs made to a property owners homestead as a result of flood, wind,
fire or other damage (Request No. 0023-GA)
Briefs requested by April 13, 2003
RQ-0024-GA
Douglas A. Beran, Ph.D., Executive Director, State Board of Barber Examiners,
5717 Balcones Drive, Suite 217 Austin, Texas 78731
Re: Use of the Barber School Tuition Protection Account administered by
the State Board of Barber Examiners (Request No. 0024-GA)
Briefs requested by April 13, 2003
RQ-0025-GA
The Honorable Stephen E. Ogden, Chair, Infrastructure Development and Security
Committee Texas State Senate, P.O. Box 12068 Austin, Texas 78711
Re: Whether, "in the case of emergency and imperative public necessity
and with a four- fifths vote of the total membership of each House," the legislature
may, pursuant to article III, section 49a(b) of the Texas Constitution, authorize
expenditures in excess of the amount of cash and anticipated revenue certified
by the Comptroller (Request No. 0025-GA)
Briefs requested by March 24, 2003
RQ-0026-GA
The Honorable Joe Nixon, Chairman, Committee on Civil Practices, Texas
House of Representatives, P.O. Box 2910 Austin, Texas 78768-2910
Re: Status of the University Interscholastic League as a state agency or
other entity (Request No. 0026-GA)
Briefs requested by April 19, 2003
RQ-0027-GA
The Honorable Robert B. Scheske, Gonzales County Attorney, P.O. Box 3,
Gonzales, Texas 78629-0003
Re: Whether a single county election may be held to determine whether,
on the one hand, cattle may be permitted to run at large, and, on the other,
whether other domesticated animals may be permitted to run at large (Request
No. 0027-GA)
Briefs requested by April 19, 2003
RQ-0028-GA
The Honorable Mike Stafford, Harris County Attorney, 1019 Congress, 15th
Floor Houston, Texas 77002-1700
Re: Authority of the presiding judge of the statutory probate courts to
adopt statewide local rules of administration for the statutory probate courts
(Request No. 0028-GA)
Briefs requested by April 19, 2003
RQ-0029-GA
The Honorable Kent Grusendorf, Chair, Committee on Public Education, Texas
House of Representatives, P.O. Box 2910 Austin, Texas 78768-2910
Re: Whether a municipality that has been granted a charter to operate a
charter school may issue certificates of obligation to construct facilities
in which to house the school (Request No. 0029-GA)
Briefs requested by March 28, 2003
For further information, please access the website
at www.oag.state.tx.us.
or call the Opinion
Committee at (512) 463-2110.
TRD-200301821
Nancy S. Fuller
Assistant Attorney General
Office of the Attorney General
Filed: March 19, 2003
RQ-0030-GA
The Honorable Jose R. Rodriguez
El Paso County Attorney
500 East San Antonio, Room 503
El Paso, Texas 79901
Re: Whether section 44.901 of the Education Code applies to a school district's
purchase of certain energy conservation services (Request No. 0030-GA)
Briefs requested by April 26, 2003
RQ-0031-GA
The Honorable Mark Burtner
Lamar County Attorney
119 North Main Street
Paris, Texas 75460
Re: Whether a sheriff may contract to provide security to a private entity
(Request No. 0031-GA)
Briefs requested by April 24, 2003
RQ-0032-GA
The Honorable Phil King
Chair, Regulated Industries Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910
Re: Reporting of child sexual abuse and required responses thereto (Request
No. 0032-GA)
Briefs requested by May 1, 2003
RQ-0033-GA
The Honorable Tempie T. Francis
Motley County Attorney
P.O. Box 7
Matador, Texas 79244
Re: Whether a county attorney who is not subject to the Professional Prosecutors
Act may maintain a civil practice office in a neighboring county (Request
No. 0033-GA)
Briefs requested by May 1, 2003
For further information,
please access the website at www.oag.state.tx.us.
or call the Opinion Committee at 512/463-2110.
TRD-200302182
Nancy S. Fuller
Assistant Attorney General
Office of the Attorney General
Filed: April 2, 2003
Request for Opinions