Re: Whether a commissioners court may pay a vendor who has rendered goods or services to the county for the reasonable value of the benefit the county has received under an implied contract when the county auditor has rejected the claim (RQ-0354-GA)

S U M M A R Y

Section 113.065 of the Local Government Code prohibits a county auditor from approving a claim for the reasonable value of services received under an implied contract that was not "incurred as provided by law." TEX. LOC. GOV'T CODE ANN. §113.065 (Vernon 1999). Attorney General Opinion GA-0247, which concludes that a county auditor is forbidden by law to approve a claim on a payment that was not "incurred as provided by law," as section 113.065 requires, is affirmed.

The county auditor's approval is a "condition precedent" to the commissioners court's review of the claim. Crider v. Cox , 960 S.W.2d 703, 706 (Tex. App.-Tyler 1997, writ denied). Without the county auditor's approval, the county commissioners court may not review and approve the claim, even if the claim is presented to the court under section 89.004(a) of the Local Government Code. See TEX. LOC. GOV'T CODE ANN. §89.004(a) (Vernon Supp. 2005). Similarly, the county commissioners court may not audit or settle any account under section 115.021 of the Local Government Code unless the county auditor has reviewed and approved the account consistently with sections 113.064 and 113.065. See id. §115.021 (Vernon 1999).

Consequently, unless the county auditor has approved the claim, a commissioners court may not pay a vendor who has rendered goods or services to the county for the reasonable value of the benefit the county has received under an implied contract.

Opinion No. GA-0384

Ms. Gay Dodson, R.Ph.

Executive Director/Secretary

Texas State Board of Pharmacy

333 Guadalupe Street, Suite 3-600

Austin, Texas 78701-3943

Re: Whether federal law preempts a portion of Senate Bill 410, enacted during the regular session of the Seventy-ninth Legislature, that purports to authorize the importation of Canadian pharmaceuticals into Texas, and to require the State Board of Pharmacy to assist in such importation (RQ-0355-GA)

S U M M A R Y

Sections 36 through 43 of Senate Bill 410, enacted during the Seventy-ninth regular session of the Texas Legislature, directly conflict with federal law, namely the Federal Food, Drug, and Cosmetic Act, chapter 9 of title 21 of the United States Code (the "FFDCA"), and specifically sections 381 and 384 thereof. The FFDCA makes it an offense not only to import, but to "cause" the importation of prohibited medications. See 21 U.S.C. §331 (2000 & Supp. 2003). By "designating" certain Canadian pharmacies, promoting them on its website, and expressly permitting Texas consumers to import prescription drugs that cannot be imported under federal law, the Texas State Board of Pharmacy would violate the Federal Food, Drug, and Cosmetic Act, as will Texas consumers and those Texas pharmacies that take part in such transactions.

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

TRD-200600057

Stacey Schiff

Deputy Attorney General

Office of the Attorney General

Filed: January 4, 2006

Opinions

Opinion No. GA-0385

The Honorable Kurt Sistrunk

Galveston County Criminal District Attorney

722 Moody, Suite 300

Galveston, Texas 77550

Re: Whether a nonprofit organization that sponsors a "poker run" violates gambling statutes (RQ-0357-GA)

S U M M A R Y

A nonprofit organization would violate Penal Code section 47.03(a)(3) and (5) by sponsoring a "poker run" in which participants are entitled to receive a five-card hand for each $10 donation they make to a charitable cause and will receive cash prizes for the best, second best, and worst hands.

Opinion No. GA-0386

The Honorable Joe Nixon

Chair, Committee on Civil Practices

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether a legislator may simultaneously serve as president of a municipal management district operating under chapter 375, Local Government Code (RQ-0385-GA)

S U M M A R Y

Article XVI, section 40(d) of the Texas Constitution prohibits an employee of a municipal management district operating under Local Government chapter 375 from simultaneously serving as a member of the Texas Legislature. This constitutional provision does not prohibit an individual who works as an independent contractor for a municipal management district from simultaneously serving as a member of the legislature. Attorney General Letter Opinion 90-55A is overruled.

Opinion No. GA-0387

The Honorable Mike Stafford

Harris County Attorney

1019 Congress, 15th Floor

Houston, Texas 77002

Re: Whether Government Code section 51.961(g), which requires one-half of the family protection fee collected in divorce suits to be deposited in the child abuse and neglect prevention trust account, violates the open courts provision, Texas Constitution article I, section 13 (RQ-0362-GA)

S U M M A R Y

Government Code section 51.961(g), as amended by the Seventy-ninth Legislature, requires one-half of a fee collected in a suit for dissolution of marriage to be deposited to the credit of the child abuse and neglect prevention trust fund account, which is used to fund child abuse and neglect prevention programs carried out by the Department of Family and Protective Services. Pursuant to the open courts provision of the Texas Constitution, article I, section 13, filing fees may only be used for judicial support services. Section 51.961(g) allocates filing fees to purposes other than judicial support services and, therefore, imposes an unconstitutional burden on a litigant's right of access to the courts in violation of article I, section 13.

Opinion No. GA-0388

The Honorable Cheryl Swope Lieck

Chambers County Attorney

Post Office Box 1200

Anahuac, Texas 77514

Re Whether Chambers County has authority to contract with a bank to invest and manage its permanent school fund (RQ-0364-GA)

S U M M A R Y

Chambers County may not contract with a bank to invest and manage its permanent school fund.

Opinion No. GA-0389

The Honorable David K. Walker

Montgomery County Attorney

207 West Phillips

Conroe, Texas 77301

Re: Whether section 693.002 of the Health and Safety Code requires a justice of the peace to allow an organ procurement organization to remove organs of a deceased person before the justice of the peace has determined whether an autopsy should be performed (RQ-0365-GA)

S U M M A R Y

In a case in which a decedent has died under circumstances requiring an inquest and the family consents to organ removal, section 693.002(a)(5) of the Health and Safety Code requires a justice of the peace who has not yet determined whether an autopsy is necessary or whether organ removal will interfere with the investigation or the autopsy to attend the procedure to remove organs or to send a designated physician. During the procedure, the justice of the peace or designated physician may deny organ removal. By requiring a justice of the peace or designated physician to attend an organ removal procedure, section 693.002(a)(5) in effect authorizes an organ procurement organization that schedules a procedure to require a justice of the peace who has not yet made the decision regarding organ removal to do so at a time and place determined by the organization.

If a justice of the peace or designated physician is required to be present at the hospital to examine the body either before or during the organ removal procedure in order to perform a duty relating to organ removal under section 693.002(a), section 693.002(a)(6) provides for the organ procurement organization to reimburse the county for actual costs, not to exceed $1,000. Section 693.002(a)(6) does not provide for costs to be paid by a tissue procurement organization for duties required by section 693.002(c), which relates to tissue removal.

Section 693.002 authorizes a justice of the peace to make an independent determination regarding whether organs or tissue may be removed. A district attorney may not require a justice of the peace to deny organ or tissue removal.

Opinion No. GA-0390

The Honorable Lawrence F. Harrison

Kimble County Attorney

Post Office Box 385

Junction, Texas 76849

Re: Whether a deputy sheriff is an "individual who acts in any capacity for a permitting authority" for purposes of title 30, section 285.50(g) of the Texas Administrative Code, which prohibits such persons from working as an installer for an on-site sewage facility within the permitting authority's jurisdiction (RQ-0366-GA)

S U M M A R Y

Title 30, section 285.50(g)(2) of the Texas Administrative Code prohibits an individual who "acts in any capacity for a permitting authority" from working as an on-site sewage facility installer within the permitting authority's jurisdiction. The Texas Commission on Environmental Quality interprets this rule to apply to a deputy sheriff in a county where the county is the permitting authority. Because the language "in any capacity for" may be construed to mean every or all duties, positions, or roles on behalf of or to the benefit of the permitting authority, the Commission's interpretation is not clearly erroneous or inconsistent with the rule's language. Accordingly, we defer to the Commission's interpretation and conclude that a deputy sheriff is an individual who "acts in any capacity for a permitting authority" when the county for which the deputy provides law enforcement services is the on-site sewage facility permitting authority.

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

TRD-200600128

Stacey Schiff

Deputy Attorney General

Office of the Attorney General

Filed: January 10, 2006