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-92-7 (RQ-335).
Request from John D.
Hughes, Hood County Attorney,
Granbury, concerning use of
the "records management and
preservation fee" established by
the Local Government Code
sec.118.011(b).

Summary of Opinion.
The "records management and
preservation" fee established by
Senate Bill 770, Acts
1991, 72nd Legislature, Chapter
587, at 2104, may be
collected by the county
clerk at his discretion.
Any fees collected should
be deposited with the
county treasurer in a
separate account, which is
subject to audit. The
commissioners court is responsible
for allocating county funds,
but it may expend funds
collected under the "records
management and preservation" fee
only "for specific records
management and automation projects.
"

TRD-9206744

   
   


Opinions


DM-105 (RQ-293).
Request from Dan M. Boulware,
District Attorney, Johnson and
Somervell Counties, Johnson County
Courthouse, Cleburne, concerning
whether the Texas Commission
on Law Enforcement Officer
Standards and Education exceeded
its rulemaking authority in
promulgating Title 37, 
sec.211.80(a)(1) of the Texas
Administrative Code.

Summary of Opinion.
The Texas Commission on
Law Enforcement Officer Standards
and Education is not
authorized to promulgate Title
37, sec.211.80(a)(1) of the
Texas Administrative Code, a
rule which requires an
applicant for a peace
officer, reserve, or jailer
license to be a United
States citizen.

TRD-9206742


DM-106 (RQ-152).
Request from Mike Moncrief,
Chairman, General Issues Subcommittee,
Texas State Senate, Austin,
concerning whether services of
auctioneers are "professional services"
for purposes of laws
governing the awarding of
contracts by cities and
counties, and related questions.

Summary of Opinion.
The determination of the
city of Fort Worth that
auctioneering services are not
"professional services" for purposes
of exemption from the
competitive bidding requirements
imposed by Local Government
Code, Chapter 252 is
not contrary to law.
Moreover, municipalities may procure
services through a competitive
bidding process even if
such services qualify for
an exemption under Local
Government Code, sec.252.022,
other than those services
covered by Texas Civil
Statutes, Article 664-4.

TRD-9206741


DM-107 (RQ-291).
Request from Mike Driscoll,
Harris County Attorney, Houston,
concerning whether the Harris
County Attorney is authorized
to represent a Harris
County Hospital District employee
accused of criminal acts
committed within the course
of his duties, and whether
the hospital district is
authorized to hire an
attorney to represent such
an employee or to reimburse
the employee's legal expenses
following the conclusion of
the litigation.

Summary of Opinion.
Article 2.08 of the Code
of Criminal Procedure prohibits
the Harris County Attorney
from representing a Harris
County Hospital District employee
in a criminal case. The
Health and Safety Code,
sec.281.056(c), authorizes the
Harris County Hospital District
to hire an attorney to
represent an employee. Whether
the Texas Constitution permits
the Harris County Hospital
District to do so in
a particular case involves
questions of fact and
must be determined by
its board. The Harris
County Hospital District is
not authorized to reimburse
an employee's legal expenses
following the conclusion of
the litigation.

TRD-9206740


DM-108 (RQ-205).
Request from Jack Skeen,
Jr., Smith County Criminal
District Attorney, County Courthouse,
Tyler, concerning whether rule
B11(c) of the Rules and
Regulations of the Smith
County Bail Bond Board
which prohibits an original
bail bond applicant from
executing deeds of trust
in property as security
for obligations incurred in
the bonding business is
invalid as inconsistent with
Texas Civil Statutes, Article
2372p-3.

Summary of Opinion.
A county bail bond board
is without authority to
provide that an applicant
for a bail bondsman license
must make the security
deposit required by Texas
Civil Statutes, Article 2372p-3,
sec.6(f) in the form
of a cashier's check,
certificate of deposit, cash
or cash equivalent, and
that he may not satisfy
the requirement by executing
deeds to property in
trust to the board in
accordance with the provisions
of sec.6(f)(2).

TRD-9206739


DM-109 (RQ-48). Request
from Robert Flowers, Executive
Director, State Commission on
Judicial Conduct, Austin, concerning
whether a constitutional county
judge is disqualified from
presiding over probate proceedings
involving wills that he
prepared or witnessed and
related questions.

Summary of Opinion.
The Texas Constitution Article
V, sec.11, provides for
disqualification of a judge
from sitting in a case
in which he is interested,
in which either of the
parties is connected with
him by a degree of
affinity or consanguinity set
out in the laws, or
in which he has been
counsel in the case.
A "case" within the third
ground of disqualification includes
an uncontested probate matter.
Whether a judge is disqualified
pursuant to the Texas
Constitution Article V, 
sec.11 from presiding in a
particular probate matter requires
a case-by-case determination based
on all relevant facts
and circumstances.

TRD-9206738


DM-110 (RQ-208).
Request from Larry E.
Kosta, Executive Director, Texas
Department of Licensing and
Regulation, Austin, concerning
whether section 11(b) of
the Texas Boxing and
Wrestling Act, Texas Civil
Statutes, Article 8501-1, applies
to cable television companies
collecting pay-per-view fees from
subscribers viewing live telecasts
of professional boxing performances.

Summary of Opinion.
Cable television companies collecting
a special pay-per-view fee
from subscribers who wish
to view a simultaneous
telecast of a live boxing
performance are not subject
to Texas Civil Statutes,
Article 8501-1, sec.11(b).

TRD-9206737


DM-111 (RQ-247).
Request from Scott W.
Johnson, Reeves County Attorney,
County Courthouse, Pecos, concerning
whether the county sheriff
or the county commissioners
court has the authority
to choose a physician
and schedule the physician
to provide medical services
to inmates incarcerated in
the county jails.

Summary of Opinion.
A county commissioners court
has the authority to
contract with a licensed
physician to provide medical
services to inmates incarcerated
in the county jails.
A county sheriff has
the authority to schedule
medical services for the
county jails.

TRD-9206736


DM-112 (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.

Summary of Opinion.
Those participating in "casino
games" at the described
non-profit charitable organization
fund-raising event would violate
the Penal Code, sec.47.02
prohibition on gambling-"making
bets"-unless, as a matter
of fact, the "casino
games" in question fall
within a "carnival contests"
exception to the definition
of "bet" in the Penal
Code, sec.47.01(1)(C) and (D).

TRD-9206735

   
   


Requests for Opinions


(RQ-345). Request
from Larry A. Farrow,
Executive Director, Texas Funeral
Service Commission, Austin, concerning
whether the El Paso Medical
Examiner can charge funeral
homes a daily storage
fee for holding bodies.


(RQ-346). Request
from George Pierce, Chair,
Urban Affairs Committee, Texas
House of Representatives, Austin,
concerning whether a home
rule city council member
is barred by state law
from voting on zoning
matters affecting territory which
includes that member's residence.


(RQ-347). Request
from Marvin J. Titzman,
Executive Director, Texas Surplus
Property Agency, San Antonio,
concerning whether a tax-exempt,
nonprofit corporation which is
exempt from the Texas
Proprietary School Act and
the Texas Education Code,
sec.32.12(A)(2), is a nonprofit
"school" for purposes of
Texas law.


(RQ-348). Request
from Allen Ross Hightower,
Texas House of Representatives,
Austin, concerning the distribution
of funds to fire departments
by county fire district
boards.


(RQ-349). Request
from Patricia S. Tweedy,
M.P.A., Executive Director, Texas
State Board of Examiners
of Psychologists, Austin, concerning
whether privileged information
relevant to the parent-child
relationship that a psychologist
gained during a voluntary
psychological evaluation of a
person involved in, or
associated with, court proceedings
involving the parent-child relationship
are excepted from disclosure
under Texas Civil Rule
of Evidence 510(d)(6).


(RQ-350). Request
from Craig D. Pedersen,
Executive Administrator, Texas
Water Development Board, Austin,
concerning whether the Texas
Water Development Board may
accept funds from private
businesses to offset the
cost of issuing an agency
newsletter, and related questions.


(RQ-351). Request
from Jack E. Crump, Executive
Director, Commission on Jail
Standards, Austin, concerning authority
of the Commission on
Jail Standards to promulgate
rules regarding the temporary
emergency housing of county
inmates, and related questions.

TRD-9206743

   
   


(RQ-352). Request
from Phyllis Massey, County
Auditor, County of DeWitt,
Cuero, concerning whether the
term "county treasury" means
"county depository" in Chapter
59 of the Code of
Criminal Procedure in provisions
regarding depositing of forfeited
moneys.


(RQ-353). Request
from O.H. "Ike" Harris,
Chair, Jurisprudence Committee,
The Texas Senate, Austin,
concerning whether the Insurance
Code, Article 21.24-2, 
sec.4(c), bars a physician
who accepts an assignment
of health insurance benefits
from waiving payment of
deductibles or copayments.


(RQ-354). Request
from Peter Potemkin, Executive
Director, Texas Workers' Compensation
Insurance Facility, Austin, concerning
whether, under sec.3(a)(1) or
sec.3(a)(10) of the Open
Records Act, Texas Civil
Statutes, Article 6251-17a, the
Texas Workers' Compensation Insurance
Facility can withhold from
public disclosure the guidelines
it uses to determine
the percentage of the
estimated premium it will
require an applicant to
pay as a deposit, and
related questions.


(RQ-355). Request
from John Whitmire, Chair,
Committee on Intergovernmental
Relations, The Texas Senate,
Austin, concerning whether 
sec.3(a) (15) of the Open
Records Act, Article 6252-17a,
Texas Civil Statutes, which
makes certain birth and
death records available to
the public, applies to
the San Antonio Metropolitan
Health District, and related
questions.


(RQ-356). Request
from Tim Curry, Criminal
District Attorney, Tarrant County
Justice Center, Fort Worth,
concerning whether the Local
Government Code, sec.117.002,
which requires district and
county clerks to deliver
certain abandoned funds to
the state treasurer, violates
Article II, sec.1 of
the Texas Constitution, and
related questions.


(RQ-357). Request
from Gary L. Watkins,
Chair, Higher Education Committee,
The Texas House of Representatives,
Austin, concerning whether a
community college district board
interim chancellor of the
same community college district,
and related question.


(RQ-358). Request
from Gary L. Watkins,
Chair, Higher Education Committee,
The Texas House of Representatives,
Austin, concerning whether notice
that a community college
district board was to
consider the selection of
an interim chancellor satisfied
the requirements of the
Texas Open Meeting Act,
Texas Civil Statutes, Article
6252-17.


(RQ-359). Request
from Jim Mapel, Criminal
District Attorney, Brazoria County
Courthouse, Angleton, concerning
whether a home rule city
may adopt a nepotism
rule that is more restrictive
than state law.


(RQ-360). Request
from Jimmy B. Wright,
Lynn County Attorney, Tahoka,
concerning whether a county
may legally pay employees
$200 per month in lieu
of coverage if they elect
not to receive health
insurance coverage through the
county's group health insurance
plan, and related questions.


(RQ-361). Request
from Mike Driscoll, Harris
County Attorney, Houston, concerning
whether Harris County can
arrange to have its checks
drawn on a branch banking
site that is located
outside the county if
the bank's depository is
located in the county
seat, pursuant to the
Local Government Code, 
sec.116.021, et seq.


(RQ-362). Request
from Bryan M. Perot,
Executive Officer, Polygraph Examiners
Board, Austin, concerning whether
Texas Civil Statutes, Article
6252-9b, sec.7(A)(a) prohibits
a former member of the
Polygraph Examiners Board from
appearing before the board
in connection with sponsoring
a polygraph intern.


(RQ-363). Request
from James Warren Smith,
Jr., Frio County Attorney,
Pearsall, concerning whether a
county commissioner's court is
authorized to promulgate regulations
creating a "smoke-free" environment
or designate restricted areas
in county buildings or
facilities for smoking.


(RQ-364). Request
from Ron Wilson, Chair,
Committee on Liquor Regulation,
Texas House of Representatives,
Austin, concerning questions relating
to the transfer of funds
from the Metropolitan Transit
Authority of Harris County
to the City of Houston,
pursuant to Texas Civil
Statutes, Article 1118x.


(RQ-365). Request
from Mike Driscoll, Harris
County Attorney, Houston, concerning
whether the personnel records
of the Harris County
Sheriff's Office are excepted
from disclosure under the
Local Government Code, 
sec.157.904.


(RQ-366). Request
from Jack Skeen, Jr.,
Criminal District Attorney, Smith
County Courthouse, Tyler, concerning
whether the Open Meetings
Act, sec.2(g) , excepts
from required disclosure under
the Open Records Act
the names of applicants
for public employment discussed
by a governmental body
in an executive session.

TRD-9206745