Attorney General

Description of Attorney
General submissions. Under provisions set
out in the Texas Constitution, the Texas Government Code, Title
4, sec.402.042 and numerous statutes, the attorney general
is authorized to write advisory opinions for state and local
officials. These advisory opinions are requested by agencies
or officials when they are confronted with unique or unusually
difficult legal questions. The attorney general also determines,
under authority of the Texas Open Records Act, whether information
requested for release from governmental agencies maybe held from
public disclosure. Requests for opinions, opinions, and open
record decisions are summarized for publication in the Texas
Register. The Attorney General responds to many requests
for opinions and open records decisions with letter opinions.
A letter opinion has the same force and effect as a formal Attorney
General Opinion, and represents the opinion of the Attorney General
unless and until it is modified or overruled by a subsequent
letter opinion, a formal Attorney General Opinion, or a decision
of a court of record.



Letter Opinion


LO-92-001 (RQ-188).
Request from David J.
Freeman, Executive Secretary, Texas
Racing Commission, Austin, concerning
Letter Opinion considering the
authority of the Texas
Racing Commission to reinstate
revoked licenses pursuant to
Texas Civil Statutes, Article
179e, sec.6.19 the Racing
Act.

TRD-9202552

   
   


Open Records Decision (ORD)


ORD-599 (RQ-2121).
Request from William Grossenbacher,
Administrator, Texas Employment
Commission, Austin, concerning
whether certain information submitted
by employers to the Texas
Employment Commission is subject
to disclosure under the
Open Records Act, Texas
Civil Statutes, Article 6252-17a.

Summary of Decision.
 Texas Civil Statutes,
Article 5221b-9(g), makes confidential
information the Texas Employment
Commission obtains in employment
records and reports, including
SIC numbers and the number
of employees of an employing
unit. Texas Employment Commission
identification numbers are excepted
from disclosure by the
Open Records Act, sec.3(a)(1),
because federal regulations prohibit
their public disclosure.

TRD-9202551

   
   


Opinions


DM-70 (RQ-127). Request
from Joe Lucas, El Paso
County Attorney, El Paso,
concerning whether the Local
Government Code, sec.252.024,
in itself exempts municipal
purchases of excess or
surplus insurance from competitive
bidding, and related questions.

Summary of Opinion.
The Local Government Code,
sec.252.024, does not in
itself exempt municipal purchases
of "excess" or "surplus"
insurance from the requirement
that such purchases be
made through competitive bidding.
Nor does that section
in itself exempt a municipality's
selection of a "sole
broker of record" from
competitive bidding requirements.

TRD-9202550


DM-71 (RQ-150). Request
from Gene Green, Chairman,
Jurisprudence Committee, Texas
State Senate, Austin, concerning
authority of public housing
authority to regulate tenants'
legal possession of firearms.

Summary of Opinion.
The Local Government Code,
sec.215.001, prohibits a municipal
housing authority from adopting
a regulation providing for
a tenant's eviction for
the otherwise legal possession
of a firearm.

TRD-9202549


DM-72 (RQ-114). Request
from Ted B. Lyon, Chairman,
Criminal Justice Committee, Texas
State Senate, Austin, concerning
whether the Dallas City
Council may control the
use of funds confiscated
pursuant to the asset
forfeiture law.

Summary of Opinion.
Except for funds transferred
to the city governing
body under subsection (h),
it is the law enforcement
agency to which forfeiture
funds are distributed under
Article 59.06, and not
the governing body of
the city, that has the
authority to determine the
law enforcement purposes for
which such forfeiture funds
are to be spent.

TRD-9202548


DM-73 (RQ-193). Request
from Mike Driscoll, Harris
County Attorney, Houston, concerning
whether a county pre-trial
services agency is authorized
under Chapter 17 of the
Code of Criminal Procedure
to hold personal property
as additional security for
personal bond if additional
security is ordered by
the district court, and,
if so, where such personal
property should be held.

Summary of Opinion.
Chapter 17 of the Code
of Criminal Procedure does
not authorize the Harris
County Pre-Trial Services Agency,
a personal bond office
created pursuant to the
Code, Article 17.42, to
hold or store personal
property required by a
magistrate as security on
a personal bond.

TRD-9202547


DM-74 (RQ-52). Request
from Carlos Valdez, Nueces
County Attorney, Nueces County
Courthouse, Corpus Christi, concerning
whether a district judge
can set the salary of
his official court reporter
at a level that differs
from that set by the
other district judges in
a county.

Summary of Opinion.
A district judge can
set the salary of his
official court reporter at
a level that differs
from that set by the
other district judges in
a county.

TRD-9202546


DM-75 (RQ-253). Request
from David Motley, Kerr
County Attorney, Kerrville, concerning
construction of Title 37,
Texas Administrative Code, 
sec.211.821(2), concerning licensing
requirements for constables, where
constable originally elected before
September 1, 1985, seeks
election to precinct newly
created upon the elimination
of original precinct through
redistricting.

Summary of Opinion.
The elimination of a
precinct through redistricting
and the incumbent constable's
election as constable for
the new precinct created
by the redistricting does
not result in a "break
in office" for the constable
within Title 37 of the
Texas Administrative Code, 
sec.211.82(i)(2), where the new
precinct differs from the
old only in its number
and the addition of territory.
Under such circumstances, a
constable who had been
continuously reelected from his
precinct since before September
1, 1985, would be exempt
from the Government Code,
sec.415.053, requirement of licensure
as a peace officer through
the Government Code, sec.415.015(c)
and Title 37, Texas Administrative
Code, sec.211.82(i)(2).

TRD-9202545


DM-76 (RQ-111). Request
from Romero Molina, Starr
County Attorney, Rio Grande
City, concerning whether nepotism
law applies to individuals
hired as independent contractors.

Summary of Opinion.
A county commissioners court
may not hire an individual
related to a county commissioner
within a prohibited degree,
regardless of whether the
individual is hired as
a regular employee or
as an independent contractor.
Statements in Attorney General
Opinion JM-492 (1986) to
the effect that the nepotism
statute did not apply
to an individual hired
as an independent contractor
are incorrect and should
be disregarded.

TRD-9202544


DM-77 (RQ-169). Request
from Mark H. Dettman,
Midland County Attorney, Midland,
concerning authority of a
sheriff to conduct investigations
and make arrests outside
his county, and related
questions.

Summary of Opinion.
A sheriff has no general
authority to investigate criminal
activities outside of the
geographical boundaries of the
county for which he is
elected. His authority to
make warrantless arrests outside
his county is circumscribed
by the conditions imposed
in the Texas Code of
Criminal Procedure, Article 14.03(d).

TRD-9202543


DM-78 (RQ-2163).
Request from Burton B.
LeTulle, Chairman, Board of
Directors, Lower Colorado River
Authority, Austin, concerning whether
working interests owned by
the Lower Colorado River
Authority in oil and
gas wells in Fayette
County are subject to
ad valorem taxation.

Summary of Opinion.
Whether leasehold interests owned
by the Lower Colorado
River Authority in oil
and gas wells in Fayette
County are exempt from
ad valorem taxation raises
questions of fact that
cannot be resolved in
the opinion process. The
holdings of the Grand
Prairie cases do not
dictate that the LCRA's
mineral interests are subject
to taxation as a matter
of law. If the LCRA
holds its working interests
in oil and gas wells
exclusively for the use
and benefit of the public,
those interests are exempt
from ad valorem taxation.

TRD-9202561


DM-79 (RQ-136). Request
from Bill Turner, Brazos
County District Attorney, Bryan,
concerning whether a juvenile
board created pursuant to
Chapter 152 of the Human
Resources Code has the
power to hire and discharge
employees of a juvenile
probation department after it
has employed a chief
juvenile probation officer.

Summary of Opinion.
Pursuant to the Human
Resources Code, sec.152. 0007
and sec.152.0008, the chief
juvenile probation officer of
the Brazos County Juvenile
Probation Department has the
probation department personnel,
subject to the approval
of the Brazos County
Juvenile Bord. The chief
juvenile probation officer and
assistant juvenile probation officers
serve at the pleasure
of the juvenile board,
and the juvenile board
has the authority to
terminate their employment. The
chief juvenile probation officer
has the authority to
terminate other juvenile probation
department employees, subject to
the approval of the juvenile
board.

TRD-9202560


DM-80 (RQ-101). Request
from Temple Dickson, Chairman,
Senate Economic Development Committee,
Austin, concerning whether a
municipal industrial development
corporation may use funds
generated by a sales
tax for the purpose of
acquiring, constructing, and operating
a "for profit" hospital
or clinic.

Summary of Opinion.
Hospitals are not "manufacturing
or industrial facilities" or
facilities "required or suitable
for the promotion of
commercial development" and may
not be financed by bonds
issued by industrial development
corporations created pursuant to
the Development Corporation Act
of 1979, as amended.

TRD-9202559


DM-81 (RQ-198). Request
from Burton F. Raiford,
Interim Commissioner, Texas Department
of Human Services, Austin,
concerning validity of a
rider to the General
Appropriations Act that requires
certain employees of state
agencies to submit financial
statements for review and
approval by the board
or commission to which
the employees are responsible.

Summary of Opinion.
The current General Appropriations
Act, Article V, sec.79,
which requires certain employees
of state agencies to
submit financial statements for
review and approval by
the board or commission
to which the employees
are responsible, is constitutionally
invalid to the extent
that it expands or is
inconsistent with Texas Civil
Statutes, Article 6252-9b. It
is valid to the extent
that is merely restates
that statute. Guidelines applicable
to the rider are those
provided by the statute.
The rider's requirement that
the affected employee file
with his board is constitutionally
invalid.

TRD-9202558


DM-82 (RQ-222). Request
from Eddie Cavazos, Chairman,
Budget and Oversight Committee,
Austin, concerning whether the
Corpus Christi Municipal Court
has jurisdiction in certain
cases involving the issuance
of bad checks.

Summary of Opinion.
The Corpus Christi Municipal
Court has jurisdiction over
theft cases involving the
issuance of a check when
the property or services
involved is valued at
less than $20.

TRD-9202556


DM-83 (RQ-255). Request
from Doyle Willis, Chairman,
General Investigating Committee,
Texas House of Representatives,
Austin, concerning application
of the Texas Constitution,
Article III, sec.47(b), which
imposes limitations on the
kinds of organizations that
may conduct bingo games.

Summary of Opinion.
Only those organizations named
in the Texas Constitution,
Article III, sec.47(b), may
conduct bingo games, and
such an organization may
conduct the bingo game
only on property owned
or leased by the organization.

TRD-9202557


DM-84 (RQ-38). Request
from Doyle Willis, Chairman,
General Investigating Committee,
Texas House of Representatives,
Austin, concerning whether the
owner of a restaurant
in a dry area violates
sec.101.31 of the Alcoholic
Beverage Code by giving
away wine to patrons
or using alcoholic beverages
for cooking.

Summary of Opinion.
The owner or employee
of a restaurant in a
dry area would violate
sec.101.31 of the Alcoholic
Beverage Code if he gave
a glass of wine to
patrons during meals purchased
at the restaurant. Whether
the owner or employee
of a restaurant violates
the code by adding alcohol
to food is a question
of fact that cannot be
resolved in the opinion
process. Although possession of
a quart of alcohol creates
a presumption that an
individual possesses with intent
to sell, the presumption
is rebuttable, depending on
the facts of any given
circumstances.

TRD-9202554


DM-85 (RQ-269). Request
from Bob Bullock, Lieutenant
Governor of Texas, Austin,
and Mike Moncrief, Chairman,
Interim Committee on Health
and Human Services, Texas
State Senate, Austin, concerning
the authority of the
Texas Department of Health
and the Texas Department
of Mental Health and
Mental Retardation to inspect
private psychiatric facilities.

Summary of Opinion.
The Health and Safety
Code, sec.222.024(a), which places
limits on additional licensing
inspections of a hospital
licensed by TDH or TDHMHMR,
applies only to inspections
required as a condition
for receiving or renewing
a license. It does not
prohibit those agencies from
conducting inspections to ensure
compliance with state laws
or agency standards.

Chapter 571 of the Health and Safety Code authorizes TDMHMR
to adopt certain standards applicable to the part of a general
hospital in which diagnosis, treatment, and care for persons
with mental illness is provided. TDMHMR may enter such facilities
to review the commitment procedure or to investigate a complaint,
but it has no authority to enforce those standards against general
hospitals. TDH could enforce the TDMHMR standards if it were
to adopt them as its own pursuant to sec.241.026(a). Whether
it may do so with respect to a particular standard can only be
answered on a case-by-case basis.

TRD-9202555

   
   


Requests for Opinions


(RQ-269). Request
from Bob Bullock, Lieutenant
Governor, Austin, and Mike
Moncrief, Chairman, Interim Committee
on Health and Human Services,
Texas State Senate, Austin,
concerning authority of the
Texas Department of Health
and the Texas Department
of Mental Health and
Mental Retardation to inspect
private psychiatric facilities.


(RQ-270). Request
from Elaine H. Piper,
Assistant City Attorney, Office
of the City Attorney,
The City of El Paso,
El Paso, concerning whether
a binding arbitration proceeding
pursuant to the Articles
of Agreement between the
City of El Paso and
the El Paso Municipal
Police Officers' Association constitutes
"litigation" for purposes of
the Open Records Act,
sec.3(a)(3).


(RQ-271). Request
from Terry D. McEachern,
District Attorney, 64th and
242nd Judicial Districts, Hale
County Courthouse, Plainview, concerning
whether the compensation paid
to a county judge for
serving on a juvenile
board is included in
the computation of the
"compensation and allowances received
from all sources by the
highest paid elected county
officer" for purposes of
the Local Government Code,
sec.152.032, limiting the compensation
received by a county
auditor, where the county
judge is the highest
paid elected county officer.


(RQ-272). Request
from Terry D. McEachern,
District Attorney, 64th and
242nd Judicial, Hale County
Courthouse, Plainview, concerning
whether the 5. 0% increase
limitation on the salaries
of assistant county auditors
imposed by the Local
Government Code, sec.111.013,
applies to the amount
budgeted from one fiscal
year to the next or
to the amount of salary
actually paid.


(RQ-273). Request
from Terry D. McEachern,
District Attorney, 64th and
242nd Judicial, Hale County
Courthouse, Plainview, concerning
whether a juvenile board
may order an increase
in the compensation paid
to county judge members
of the board in excess
of the compensation ordered
by the commissioners court
under the Human Resources
Code, sec.152.0411 and related
question.


(RQ-274). Request
from Bob Bullock, Lieutenant
Governor, Austin, concerning whether
a rider which authorizes
issuance of revenue bonds
to finance construction of
a state office building
in Nueces County is valid.


(RQ-275). Request
from Ted B. Lyon, Jr.,
Chairman, Criminal Justice Committee,
Texas State Senate, Austin,
concerning whether sec.6.08(a)
of the Texas Racing Act,
Texas Civil Statutes, Article
179e, permits certain deductions
from purse winnings without
prior approval.


(RQ-276). Request
from Diana L. Granger,
Deputy City Attorney, City
of Austin, Austin, concerning
whether the Local Government
Code, sec.143.089, excepts from
public disclosure files of
completed internal affairs investigations.


(RQ-277). Request
from Debra Danburg, Chair,
Committee on Elections, Texas
House of Representatives, Austin,
concerning conditions by which
life sentences may be
fulfilled.


(RQ-278). Request
from Charles S. Brack,
Chambers County Attorney, Anajuac,
concerning whether a hospital
district may lease part
of its facility for the
operation of a private
adolescent drug treatment center.


(RQ-279). Request
from Richard D. Monroe,
Associate General Counsel, Texas
Department of Transportation, Austin,
concerning whether a governmental
body may withhold, under
the Open Records Act,
sec.3(a)(5), information related
to a condemnation proceeding
previously made public in
the proceeding of litigation
of the matter is pending.


(RQ-280). Request
from Mike Driscoll, Harris
County Attorney, Houston, concerning
the procedures for the
sale of county land acquired
for road purposes.


(RQ-281). Request
from Georgia D. Flint,
Acting Commissioner, Texas Department
of Insurance, Austin, concerning
whether, considering the Property
Code, sec.42.001 and 
sec.42.002 and the Insurance
Code, Article 21.22 insurance
policy proceeds and cash
values are completely exempt
from seizure under process,
and related question.


(RQ-282). Request
from Jesusa Sanchez-Vera, Jim
Wells County Attorney, Alice,
concerning whether the executive
director of a municipal
housing authority is subject
to the nepotism statute,
Texas Civil Statutes, Article
5996a.


(RQ-283). Request
from Roman Martinez, Chairman,
Committee on Labor and
Employment Relations, Texas House
of Representatives, Austin, concerning
whether emergency medical service
technicians are within the
scope of the Fire and
Police Employee Relations Act,
Texas Civil Statutes, Article
5154c-1.


(RQ-284). Request
from Ron Lewis, Chairman,
Natural Resources Committee, Texas
House of Representatives, Austin,
concerning the legality of
"casino night" fundraising by
nonprofit organizations.

TRD-9202553