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 Opinions


LO-92-002 (RQ-272)
Request from Terry D.
McEachern, District Attorney, 64th
and 242nd Judicial Districts,
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.

Summary of Opinion.
The Local Government Code,
sec.111.013, imposes a limitation
of 5.0% on increases
in the amount budgeted
from one fiscal year
to the next for the
salary of an assistant
county auditor. The amount
of salary actually paid
the assistant auditor is
not relevant to the operation
of this statute.

TRD-9205174

   
   


Open Records Decisions


ORD-600 (RQ-103)
Request from J. Kirk
Brown, General Counsel, Texas
Department of Criminal Justice,
Huntsville, concerning availability
under Open Records Act
of personnel records of
employees of the Texas
Department of Criminal Justice.

Summary of Decision.
 The Institutional Division
of the Texas Department
of Criminal Justice received
requests under the Texas
Open Records Act, Texas
Civil Statutes, Article 6252-17a,
for information in the
personnel files of certain
employees. Several categories of
information were found to
be excepted from public
disclosure.

The Open Records Act, sec.3(a)(17)(B), adopted by House
Bill 729 of the 72nd Legislative Session and effective May 8,
1991, excepts from disclosure the home addresses, home telephone
number, or social security numbers of employees of the Texas
Department of Criminal Justice. It also excepts the home or employment
address or telephone numbers or the names or social security
numbers of family members of employees of the department. This
information is excepted from disclosure wherever it appears in
the personnel files.

The result of a personality test given by the Department of
Criminal Justice to an employee is excepted from public disclosure
by a constitutional right of privacy. The score on an intelligence
test given to an employee is excepted from public disclosure
by a common-law right of privacy.

Information about on-the-job injuries in medical records created
by or under the supervision of a physician or maintained by a
physician is excepted from public disclosure by Texas Civil Statutes,
Article 4495b, sec.5.08(b). Whether or not a report by the
injured person or a witness to the accident contains private
information depends on the nature of the injury and other facts
included in the report.

The W-4 forms completed by employees are excepted from disclosure
by the United States Code, Title 26, sec.6103(a).

TexFlex forms, showing the employee's decision about participation
in this benefit program, concern a private financial decision
to allocate compensation to optional benefits provided by a third
party; thus these forms are excepted from public disclosure by
a common-law right of privacy. Forms authorizing the direct deposit
of the employee's paycheck also document a private decision as
to allocation of compensation to a third party and are excepted
from disclosure.

Authorizations for social security leveling include facts
about the employee's receipt of compensation from the state as
his employer and are not excepted from disclosure by a right
of privacy.

The employee's participation in the group insurance program
is in part a transaction with the state. Information on his application
form relevant to his enrollment for basic and dependent health
coverage offered pursuant to the Insurance Code, Article 3.50-2,
is not excepted from disclosure by a common-law right of privacy.
Certain information on the form is excepted from disclosure by
the Open Records Act, sec.3(a)(17)(B). The remaining information
on optional coverages, dependent information, and designation
of a beneficiary of his life insurance is excepted from disclosure
by a right of privacy.

Employee services option forms, which offer the employee laundry
services and barber shop services at prison facilities in exchange
for a small fee, relate to a transaction between the employee
and the governmental body and are therefore not excepted from
disclosure by a right of privacy.

Information in personnel evaluation forms that consists of
opinion, advice, and recommendation used in the decisional process
within the agency is excepted from disclosure by the Open Records
Act, sec.3(a)(11).

TRD-9205168


ORD-601 (RQ-2168)
Request from Norman J.
Gordon, Attorney At Law,
Diamond, Rash, Leslie, Smith
and Samaniego, El Paso,
concerning whether the El
Paso Housing Finance Corporation
is a governmental body
under the Texas Open
Records Act.

Summary of Decision.
 The El Paso Finance
Corporation is a governmental
body under the Texas
Open Records Act, sec.2(1)(G).

TRD-9205167


ORD-602 (RQ-228)
Request from Laura Peterson
House, Locke Purnell Rain
Harrell, Dallas concerning whether
the Dallas Museum of
Art is a "governmental
body" under the Texas
Open Records Act, Texas
Civil Statutes, Article 6252-17a,
sec.2(1)(G), and related questions.

Summary of Decision.
 The Dallas Museum
of Art is a "governmental
body" within the meaning
of the Texas Open Records
Act only to the extent
that it receives support
from the City of Dallas
and the State of Texas.
Thus, only documents relating
to those sections of
the museum that are supported
by the city or state
are public documents subject
to the Open Records Act.
Documents related to areas
of the DMA that are
not supported with public
funds are not subject
to the Open Records Act.

TRD-9205166


ORD-603 (RQ-91) Request
from Robert A. MacLean,
M.D., Acting Commissioner, Texas
Department of Health, Austin,
concerning whether an individual
has a right under the
Open Records Act, sec.3B
to inspect information about
himself in the records
of a Department of Health
investigation of a complaint
against a home health
services agency.

Summary of Decision.
 The Open Records
Act, sec.3B does not
affect the availability of
information developed in a
Department of Health investigation
of complaints about a
home health agency under
the Health and Safety
Code, sec.142. 009. Such
information is confidential under
the Health and Safety
Code, sec.142. 009(d) and
excepted from public disclosure
under the Open Records
Act, sec.3(a)(1) .

TRD-9205184

   
   


Opinions


DM-86 (RQ-70) Request
from Richard Barajas, District
Attorney, 83rd Judicial District
of Texas, Fort Stockton,
concerning responsibility of a
sheriff with regard to
a private detention facility
operated under contract with
a county.

Summary of Opinion.
The only duty of a
sheriff with regard to
a detention facility operated
by a private vendor pursuant
to a contract with his
county is to exercise
"regular, on-site monitoring" of
the facility. The Commission
on Jail Standards has
a continuing duty under
the Government Code, Chapter
511 to monitor a private
detention facility for compliance
with its standards. If
a facility fails to comply
with the one-year deadline
for certification of its
jailers by the Commission
on Law Enforcement Officer
Standards and Education, the
Commission on Jail Standards
may conclude that the
facility "does not comply
with state law" under
Chapter 511, and apply
certain remedies against the
facility.

TRD-9205183


DM-87 (RQ-35) Request
from James Warren Smith,
Jr., Frio County Attorney,
Pearsall, concerning responsibility
for transporting juveniles between
juvenile court and the
county's juvenile detention center,
and related questions.

Summary of Opinion.
A county judge is not
expressly empowered to order
a sheriff or constable
to transport persons to
and from juvenile court.
Unless it transfers the
amount from another budgeted
item, a county of less
than 225,000 population may
amend its budget to provide
funds for transportation of
juveniles only if the
commissioners court finds that
there exists a "grave
public necessity to meet
an unusual and unforeseen
condition that could not
have been included in
the original budget throught
the use of reasonably
diligent though and attention."

TRD-9205182


DM-88 (RQ-256) Request
from George Pierce, Chairman,
Committee on Urban Affairs,
Texas House of Representatives,
Austin, concerning whether Texas
Civil Statutes, Article 601f,
pertaining to payments for
goods and services contracted
for by state agencies
or political subdivisions, applies
to construction contracts.

Summary of Opinion.
Texas Civil Statutes, Article
601f, a statute pertaining
to the payment of goods
and services contracted for
by state agencies and
political subdivisions, applies
to construction contracts.

TRD-9205181


DM-89 (RQ-119) Request
from John W. Segrest,
Criminal District Attorney, McLennan
County, Waco, concerning whether
a candidate is eligible
to the office of alderman
in a Type B general
law city if the candidate
meets the requirements of
the Local Government Code,
sec.23.024(a), but not the
requirements of the Election
Code, sec.141.001(a)(4).

Summary of Opinion.
The Local Government Code,
sec.23.024 does not exclusively
govern eligibility to elective
office in a Type B
general law city and
does not conflict with
the Election Code, sec.141.001(a)(4).
A candidate who does
not meet the requirements
of sec.141.001(a)(4) is not
eligible to an elective
office in a Type B
general law city.

TRD-9205180


DM-90 (RQ-251) Request
from A. J. (Jack) Hartel,
Liberty County Attorney, Liberty,
concerning authority of a
navigation district to enter
into a tax abatement
agreement.

Summary of Opinion.
The authority of the
Chambers-Liberty Counties Navigation
District to enter into
a tax abatement agreement
pertaining to land that
is the subject of a
county tax abatement agreement
expired 90 days after
the date of the execution
of the county agreement.

TRD-9205179


DM-91 (RQ-246) Request
from Linda Vaclavik, Executive
Director, Texas Advisory Board
of Occupational Therapy, Austin,
concerning whether the term
"physician" in the Occupational
Therapy Title Act, Texas
Civil Statutes, Article 8851,
includes chiropractors.

Summary of Opinion.
The term "physician" in
Texas Civil Statutes, Article
8851, sec.15(b)(6) and 
sec.27, the Occupational Therapy
Title Act, refers to
persons licensed by the
State Board of Medical
Examiners under Texas Civil
Statutes, Article 4495b, not
to health-care practitioners licensed
under other statutes.

TRD-9205178


DM-92 (RQ-173) Request
from Charles E. Nemir,
P.E., Executive Director, State
Board of Registration for
Professional Engineers, Austin,
concerning whether increase in
renewal fees is applicable
to registered engineers who
are at least 65 years
of age.

Summary of Opinion.
The State Board of Registration
for Professional Engineers may,
for purposes of setting
reduced fees for licensees
at least 65 years of
age, consider the $200
fee increase imposed by
Texas Civil Statutes, Article
3271a, sec.13B, as part
of the fee subject to
reduction.

TRD-9205177


DM-93 (RQ-184) Request
from Lionel R. Meno,
Commissioner of Education, Texas
Education Agency, Austin, concerning
constitutionality of Rider 30
to the General Appropriations
Bill for the 1991-1992
biennium.

Summary of Opinion.
The separate provisions of
Rider 30 to the appropriation
of the Central Education
Agency contained in the
General Appropriations Act for
the 1991-1992 fiscal biennium
attempt to amend or enact
general law and are therefore
invalid under the Texas
Constitution, Article III, 
sec.35(a).

TRD-9205176


DM-94 (RQ-77) Request
from Stephen C. Howard,
Orange County Attorney, Orange,
concerning whether a county
may tax property as new
property upon expiration of
a tax abatement contract.

Summary of Opinion.
The value of improvements
to real property exempted
for a period of years
pursuant to a tax abatement
agreement is not "[n]
ew property value" for
purposes of the Property
Tax Code, Chapter 26,
unless the improvements were
made after January 1
of the preceding tax
year.

TRD-9205195


DM-95 (RQ-252) Request
from Gary Watkins, Chairman,
Committee on Higher Education,
Texas House of Representatives,
Austin, concerning whether a
city council violates the
Open Meetings Act when
a majority of the council
signs a letter that has
not been authorized in
an open meeting.

Summary of Opinion.
If a quorum of a
governmental body agrees on
a joint statement on
a matter of governmental
business or policy, the
deliberation by which that
agreement is reached is
subject to the requirements
of the Open Meetings
Act, and those requirements
are not necessarily avoided
by avoiding the physical
gathering of a quorum
in one place at one
time. Whether any specific
behavior or pattern of
behavior constitutes a violation
of the Act must ultimately
be determined by a trier
of fact.

TRD-9205194


DM-96 (RQ-227) Request
from James F. Hury, Jr.,
Chairman, Ways and Means
Committee, Texas House of
Representatives, Austin, concerning
authority of a commissioners
court to designate an
agent to invest county
funds.

Summary of Opinion.
A commissioners court may
not remove a county treasurer
entirely from the process
of investing county funds,
but it may designate
which funds are to be
invested and direct the
treasurer to invest those
funds in accordance with
the Public Funds Investment
Act, Texas Civil Statutes,
Article 842a-2. A commissioners
court may, by express
written authority, delegate its
designative and directive functions
to another county officer
or employee, including one
or more individual commissions.

TRD-9205193


DM-97 (RQ-178) Request
from Chet Brooks, Chairman,
Committee on Health and
Human Services, Texas State
Senate, Austin, concerning whether
Texas' procedure whereby a
man voluntarily can establish
paternity of a child
born out of wedlock "legitimates"
the child.

Summary of Opinion.
The procedure for establishing
"voluntary paternity" under the
Family Code, sec.sec.13.21-13.24
is essentially the same
as the procedure for
"voluntary legitimation" under
the pre-1989 version of
sec.sec.13. 21-13.24, and both
procedures produce the same
result. A child born
out of wedlock whose
paternity has been establish
pursuant to the Family
Code, sec.sec.13. 21-13.24
is entitled to the same
parent-child relationship and the
same rights under Texas
law as a child born
in wedlock.

TRD-9205192


DM-98 (RQ-158) Request
from A. J. Hartel, Liberty
County Attorney, Liberty, concerning
whether health care professionals
employed on a part-time
basis by a county to
provide medical services to
inmates in a county jail
are entitled to indemnification
and legal representation under
the Civil Practice and
Remedies Code, sec.sec.104.001,
104.004, and 110.002.

Summary of Opinion.
Health care professionals employed
on a part-time basis
by the Liberty County
jail to provide medical
services to county jail
inmates are not entitled
to indemnification or legal
representation under the Civil
Practice and Remedies Code,
Chapter 104.

The determination whether a particular health care professional
employed on a part-time basis by the Liberty County Jail to provide
medical care to inmates is entitled to indemnification under
the Civil Practice and Remedies Code, Chapter 110 depends upon
the overall nature of his or her practice and involves questions
of fact which cannot be resolved in the opinion process. If a
health care professional provides medical care to indigent inmates
pursuant to a contract to provide such care in compliance with
the Indigent Health Care and Treatment Act, such care constitutes
"charity care or services" for purposes of sec.110.001(1),
and counts toward the 10% patient encounter minimum required
for indemnification under that chapter. Treatment of such inmates
under a contract where the health care professional agrees to
render medical care in exchange for a flat fee and a per patient
fee, regardless of the patient's payment source, would not necessarily
qualify as "charity care or services."

TRD-9205191


DM-99 (RQ-220) Request
from James L. Pledger,
Commissioner, Texas Savings and
Loan Department, Austin, concerning
whether certain governmental entities
may lawfully deposit funds
in the demand accounts
of state and federal
savings and loan associations
and savings banks.

Summary of Opinion.
Municipalities, counties, independent
school districts, and institutions
of higher learning are
not authorized to deposit
funds in the demand accounts
of savings and loan associations.

TRD-9205190


DM-100 (RQ-201) Request
from Georgia Flint, Acting
Commissioner, Texas Department
of Insurance, Austin, concerning
whether an insurance company
released from supervision or
conservatorship may deduct from
its premium tax liability
fees paid for cost of
rehabilitation.

Summary of Opinion.
Rehabilitation fees assessed insurance
companies rehabilitated by the
State Board of Insurance
under the Insurance Code,
Article 21.28-A are not
within the premium tax
credit allowed by Insurance
Code, Article 4.10, sec.13
for "examination and evaluation
fees."

TRD-9205189


DM-101 (RQ-267) Request
from Lawrence R. Jacobi,
Jr., P.E., General Manager,
Texas Low-Level Radioactive Waste
Disposal Authority, Austin, concerning
whether the board of
directors of the Texas
Low-Level Radioactive Waste Disposal
Authority may designate by
rule for use as impact
assistance allocation not less
than 10% of the planning
and implementation fees assessed
and deposited to the
low-level waste fund and
related questions.

Summary of Opinion.
The board of directors
of the Texas Low-Level
Radioactive Waste Disposal Authority
may not designate by
rule for use as impact
assistance allocation a percentage
of the planning and implementation
fees assessed and deposited
to the low-level waste
fund pursuant to the
Health and Safety Code,
Chapter 402, Subchapter J.

TRD-9205188


DM-102 (RQ-263) Request
from Merrill L. Hartman,
Chairman, Court Reporters Certification
Board, Austin, concerning whether
a certified shorthand reporter
in the State of Texas
may contract with a company
to fulfill all of the
company's shorthand reporting needs.

Summary of Opinion.
Neither Texas statutes nor
rules promulgated by the
Texas Supreme Court preclude
a certified shorthand reporter
in the State of Texas
from contracting with a
company to provide all
of the shorthand reporting
services the company requires.
The Government Code, sec.52.029
lists various types of
behavior for which the
Court Reporters Certification Board
may sanction a certified
shorthand reporter, including fraud
and unprofessional conduct, but
the determination of whether
a certified shorthand reporter
in a particular contractual
arrangement is committing any
of the proscribed types
of behavior is a determination
the Court Reporters Certification
Board must make according
to the procedures set
forth in the Government
Code, sec.sec.52.027-52.030 and
Part IV of the Standards
and Rules for Certification
of Certified Shorthand Reporters,
promulgated by the Supreme
Court of Texas.

TRD-9205187


DM-103 (RQ-273) Request
from Terry D. McEachern,
Hale County District Attorney,
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.

Summary of Opinion.
The juvenile board of
Castro, Hale, and Swisher
Counties has no authority
to set the salaries of
its members.

TRD-9205185


DM-104 (RQ-277) Request
from Debra Danburg, Chair,
Committee on Elections, Texas
House of Representatives, Austin,
concerning completion of a
life sentence.

Summary of Opinion.
A life sentence continues
until the time of a
convicted person's death. The
fact that a person sentenced
to life may be released
on parole does not constitute
completion of his sentence.

TRD-9205186