RQ-0718-GA
Requestor:
The Honorable John W. Segrest
McLennan County Criminal District Attorney
219 North 6th Street, Suite 200
Waco, Texas 76701
Re: Whether a program of house arrest and electronic monitoring of convicted individuals must be administered by a community supervision and correction department (RQ-0718-GA)
Briefs requested by July 14, 2008
RQ-0719-GA
Requestor:
David L. Lakey , M.D., Commissioner
Texas Department of State Health Services
1100 West 49th Street
Austin, Texas 78756
Re: Whether federal law preempts the Department of State Health Services from regulating air ambulance EMS provider subscription programs (RQ-0719-GA)
Briefs requested by July 18, 2008
RQ-0720-GA
Requestor:
Ms. Katherine A. Thomas, MN, RN
Executive Director
Texas Board of Nursing
333 Guadalupe Street, Suite 3-460
Austin, Texas 78701
Re: Whether certain information about licensees of the Texas Board of Nursing is subject to disclosure under the Public Information Act, chapter 552, Government Code, or chapter 301, Occupations Code (RQ-0720-GA)
Briefs requested by July 18, 2008
For further information, please access the website at www.oag.state.tx.us or call the Opinion Committee at (512) 463-2110.
TRD-200803126
Stacey Napier
Deputy Attorney General
Office of the Attorney General
Filed: June 18, 2008
Opinion No. GA-0634
The Honorable Kip Averitt
Chair, Committee on Natural Resources
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068
Re: Valuation of real property surrounding Possum Kingdom Lake that the Brazos River Authority proposes to sell to the lessees of the property (RQ-0639-GA)
S U M M A R Y
The Brazos River Authority (the "Authority"), a special law conservation and reclamation district under Texas Constitution article XVI, section 59, owns real property surrounding Possum Kingdom Lake that is leased to private parties at below-market lease rates. The Authority is formulating procedures to offer to sell the property to the lessees of the property.
The first question presented is whether the leased property must be valued as unencumbered by the leases or encumbered by the unexpired terms of the existing leases for the purposes of determining the sales price if the property is offered for sale to the lessees. If the property is offered for sale to the lessees, the Authority would sell the property pursuant to Water Code section 49.226. Section 49.226(a) generally provides that surplus real or personal property owned by a water district may be sold in a private or public sale or be exchanged. Section 49.226(a) requires that the surplus property be exchanged for "like fair market value." The Authority and the lessees assume that this fair market provision applies to the sale of the Authority's property. The lessees contend that the fair market value provision in section 49.226 requires the Authority to value the property as encumbered by the leases. Because section 49.226(a) does not explicitly state that a lease may not be considered, fair market value as used in the statute has the meaning established by the Texas courts, which meaning includes the value of a lease. Thus, application of the established judicial definition of fair market value requires the Authority to value the property as encumbered by the leases.
The second question presented is whether using the discounted sales price resulting from valuing the Authority's property as encumbered by the leases would violate Texas Constitution article III, section 52(a), which prohibits gratuitous transfers of public funds to individuals or private parties. Using a discounted sales price--resulting in this particular instance from valuing the property as encumbered by the existing leases--would not violate article III, section 52(a).
Opinion No. GA-0635
The Honorable Jeri Yenne
Brazoria County Criminal District Attorney
County Courthouse
111 East Locust, Suite 408A
Angleton, Texas 77515
Re: Wet/dry status of certain precincts within Brazoria County (RQ-0656-GA)
S U M M A R Y
Under the Alcoholic Beverage Code, the local option status of a voting unit can be changed only by an election held in that unit. Additionally, the local option status resulting from elections held in a justice precinct or a city contained in a county prevails against the status resulting from elections held in the larger county. Consistent with the statutory scheme for local option elections, the term "local option status" or "status" means the choice of alcoholic beverages expressly or implicitly prohibited or legalized as a result of the local option elections held in the smaller voting unit. That choice cannot be changed except through an election held in the same voting unit.
The 2007 county-wide election held in Brazoria County did not change the local option status of former Justice Precinct No. 5 ("Precinct 5"), the City of Sweeny ("Sweeny"), and the City of Richwood ("Richwood") resulting from their prior local option elections. Accordingly, wine and beer sales are unlawful in Sweeny, and beer sales remain prohibited in Precinct 5 as they were before the 2007 election. Thus, the county clerk cannot certify a location in Sweeny as being in a "wet area" for the sale of beer and wine on an application for a Wine and Beer Retailer's Off-Premise Permit. The sale of wine and beer and mixed beverages is unlawful in Precinct 5. Thus, the county clerk cannot certify locations in Precinct 5 as being in a "wet area" for the sale of beer and wine on applications for Wine and Beer Retailer's Off-Premise Permits or for the sale of mixed beverages on applications for Mixed Beverage Permits. The sale of mixed beverages is unlawful in Richwood, and the on-premises sale of beer remains prohibited therein as was the case before the 2007 election. Thus, the county clerk cannot certify a location in Richwood as being in a "wet area" for the sale of mixed beverages on an application for a Mixed Beverage Permit, and such a permit may not be issued for a location in Richwood.
Attorney General Opinion H-59 is modified to the extent it is inconsistent with the conclusions reached here.
Opinion No. GA-0636
The Honorable Jeb McNew
Montague County Attorney
Montague County Courthouse
Post Office Box 336
Montague, Texas 76251-0336
Re: Whether county officials who collect funds for the county may establish individual bank accounts in their own names (RQ-0657-GA)
S U M M A R Y
County officers who collect fees for the county must deposit the funds with the county treasurer or in the county treasury as required by Local Government Code chapter 113 or 133, absent a specific statute providing for a different disposition. A county sheriff, county clerk, district clerk, or justice of the peace may not deposit the county funds the officer collects in an individual bank account in the county's depository that enables the officer to control and withdraw funds.
The county auditor may "adopt and enforce regulations, not inconsistent with law" for collecting, checking, and accounting for the revenues and other funds and fees that belong to the county. Where county officers who collect county funds are required by statute to deposit them with the county treasurer or in the county treasury, the county auditor may not by regulation authorize a county officer to place those funds in an individual bank account in the county's depository under the officer's own name or enable the individual officer to control and disburse those funds.
If such bank accounts have been opened, the agreement with the bank should state who would be authorized to close the account. In all likelihood, this person would be the county officer who opened the account.
An official who collects fees under Local Government Code chapter 133 must deposit them in the county treasury. Checks written on accounts set up for fee funds collected by a county official and deposited in the county treasury are to be signed by the treasurer and the county auditor.
Opinion No. GA-0637
Mr. Robert Scott
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494
Re: Whether impact fees may be imposed upon school district property under chapter 395 of the Local Government Code, and whether certain exactions constitute "impact fees" (RQ-0658-GA)
S U M M A R Y
Under section 395.022(b) of the Local Government Code, a school district is not required to pay an impact fee imposed under chapter 395 unless the district's board of trustees consents to the payment of such fee by entering into a contract with the political subdivision that imposes the fee. Attorney General Opinion GA-0496 (2006) has been modified by section 395.022(b) of the Local Government Code.
For further information, please access the website at www.oag.state.tx.us or call the Opinion Committee at (512) 463-2110.
TRD-200803125
Stacey Napier
Deputy Attorney General
Office of the Attorney General
Filed: June 18, 2008