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-92-8 (RQ-357).
Request from Gary L.
Watkins, Chairman, Higher Education
Committee, Texas House of
Representatives, Austin, concerning
whether a community college
district board member can
of the same community
college district and related
question.


Summary of Opinion.
The board of the Alamo
Community College District may
members to the position
of interim chancellor. Such
as a matter of law.


TRD-9208326







LO-92-9 (RQ-358).
Request from Gary L.
Watkins, Chairman, Higher Education
Committee, Texas House of
Representatives, Austin, concerning
whether notice that a
community college district board
was to consider selection
of interim chancellor satisfied
requirements of the Texas
Open Meetings Act, Texas
Civil Statutes, Article 6252-17.


Summary of Opinion.
Whether any specific notice
constitutes a violation of
the Open Meetings Act,
Texas Civil Statutes, Article
6252-18, sec.3A(a) must ultimately
be determined by a trier
of fact.


TRD-9208327







LO-92-10 (RQ-129).
Request from Michael J.
Guarino, Criminal District Attorney,
Galveston County, Galveston, concerning
whether a county commissioner
may serve as a trustee
of a school district.


Summary of Opinion.
At present, there are
no conflicts as to taxing
authority between the offices
of county commissioner and
trustee of a school district
that would render the
offices incompatible. Future legislation
on taxation by school
districts should be examined
to determine whether it
gives rise to a common
law incompatibility between the
two offices. Whether the
authority of the school
board under the Education
Code, sec.2.04 creates an
incompatibility between the two
offices depends on facts
as to the location of
land owned and used by
the school district.


TRD-9208328







LO-92-11 (ID-12647).
Request from Helen L.
Campbell, Office of Fire
Fighters' Pension, Austin, concerning
authority of Fire Fighters'
Pension Commission under Texas
Civil Statutes, Article 6243e.3
with regard to volunteer
fire fighters pension contracts.


Summary of Opinion.
A contract entered into
pursuant to Texas Civil
Statutes, Article 6243e.3 may
not provide for the payment
of a monthly annuity
which is computed at
a rate greater than the
rate specified in sec.3(b)
of the act. The Fire
Fighters' Pension Commissioner
may not administer a
contract which calls for
payment of benefits in
violation of Article 6243e.3.
The commissioner may not
dictate to governmental bodies
the level of benefits
they provide to volunteer
fire fighters under the
act.


TRD-9208329







LO-92-12 (ID-15819).
Request from James F.
Hury, Jr., Representative, Texas
House of Representatives, Austin,
concerning ticketing of unauthorized
vehicle parked on private
property in a "disabled"
designated parking space.


Summary of Opinion.
Pursuant to Texas Civil
Statutes, Article 6675a-5e.1, 
sec.10, political subdivisions may
ticket unauthorized vehicles which
park in spaces on private
property designated for use
by vehicles transporting disabled
persons.


TRD-9208330







LO-13. Request from
Bob Bullock, Lieutenant Governor
of Texas, Austin, concerning
whether a rider to the
General Appropriations Act may
authorize the Texas Public
Finance Authority to issue
revenue bonds to finance
construction of a state
office building in Nueces
County.


Summary of Opinion.
The current General Appropriations
Act, sec.125 is a valid
method by which the legislature
may authorize the issuance
of revenue bonds to finance
construction of a state
office building in Nueces
County.


TRD-9208331







LO-92-14 (RQ-339).
Request from Robert Eckels,
Chairman, Committee on County
Affairs, Texas House of
Representatives, Austin, concerning
whether the County Court
of Taylor County has
jurisdiction over juvenile matters.


Summary of Opinion.
The County Court of Taylor
County does not have
jurisdiction over juvenile matters.
The Juvenile Board of
Taylor County may designate
one or more of the
following as the Juvenile
Court(s) of Taylor County:
the District Courts of
Taylor County; and the
Statutory County Courts of
Taylor County.


TRD-9208336







LO-92-15 (RQ-175).
Request from Burton F.
Raiford, Interim Commissioner,
Texas Department of Human
Services, Austin, concerning whether
an employee of the Department
of Human Services may
take sick leave to care
for an ill child for
whom she is a managing
or possessory conservator, where
the child is not a
member of the employee's
"immediate family" as defined
the General Appropriations Act,
Article V, sec.8(2).


TRD-9208335


   
   









Opinions





DM-113 (RQ-40). Request
from Tom Craddick, Chairman,
Public Health Committee, Texas
House of Representatives, Austin,
concerning whether the Dallas
Independent School District may
give favored treatment to
bidders based on the
bidder's residence, ownership of
taxable improvements to real
property in the district,
and related questions.


Summary of Opinion.
The board of trustees
of an independent school
district may not, in
the absence of clear
statutory authority, adopt procurement
policies that reward bidders
purely on the basis of
a bidder's residence or
location, the bidder's participation
in voluntary school programs,
the bidder's compliance with
the school district's minority
and women business enterprise
contracting program, or on
the basis of estimates
of various economic factors,
such as taxes to be
paid to the district
by the bidder, the amount
of local salaries and
wages paid by the bidder,
or the number of local
jobs created by the bidder.







DM-114 (RQ-72). Request
from Nathan B. Rheinlander,
Comal County Attorney, New
Braunfels, concerning whether persons
commissions by the commissioners
court are subject to
removal by the commissioners
court.


Summary of Opinion.
County officers may be
removed from office only
by the district judge
after a trial, in accordance
with the Texas Constitution,
Article V, sec.24, and
the Local Government Code,
sec.87.001-87. 032. Members of
the governing board of
an emergency services district
established wholly in one
county under Chapter 776
of the Health and Safety
Code, members of the
governing board of a
rural fire prevention district
established wholly within one
county under Chapter 794
of the Health and Safety
Code, and members of
the board of the Comal
County Water Oriented Recreation
District established under Chapter
324 of the Local Government
Code, are county officers
within the Texas Constitution,
Article V, sec.24.







DM-115 (RQ-264).
Request from Jeannene Fox,
Acting Administrator, Texas Alcoholic
Beverage Commission, Austin, concerning
authority of the Alcoholic
Beverage Commission to adopt
a rule regarding the
sale of alcohol to minors.


Summary of Opinion.
A proposed rule of the
Alcoholic Beverage Commission which
would establish a "rebuttable
presumption" that a licensee
or permittee had "knowingly"
sold alcoholic beverages to
a minor where it was
shown that the seller
had failed to request
proper identification, would be
invalid as inconsistent with
the applicable statutory provisions
as interpreted by the
courts.







DM-116 (RQ-288).
Request from Dan Roberts,
Chairman, Texas Board on
Aging, Austin, concerning validity
of a rider to the
current appropriation to the
Texas Department on Aging
which requires the department,
under certain circumstances, to
use the service standards,
systems, billing, audit procedures,
and provider bases used
by the Department of
Human Services.


Summary of Opinion.
A rider to the appropriation
to the Texas Department
of Aging which requires
that agency to "use the
service standards, systems, billing
and audit procedures, and
provider bases used by
the Department of Human
Services" constitutes general legislation
in contravention of the
Texas Constitution, Article III,
sec.35. It is therefore
void and of no effect.







DM-117 (RQ-190).
Request from Edmund Kuempel,
Chairman, Committee on House
Administration, Texas House of
Representatives, Austin, concerning
whether, in a manufactured
home credit transaction, Texas
Civil Statutes, Article 5069-6A.08,
allows a creditor to
require a consumer to
purchase the required insurance
from an insurer of the
creditor's choosing, and related
questions.


Summary of Opinion.
Nothing in Texas Civil
Statutes, Article 5069-6A.08, prohibits
a creditor from requiring
a consumer to purchase
a paid-in-full property insurance
policy or insurance for
the term that the creditor
selects. This result obtains
whether the consumer acquires
the insurance coverage before
or after the date of
the credit transaction. Additionally,
Texas Civil Statutes, Article
5069-6A.08(2)(9), as well as
Article 21.48A, the Insurance
Code, sec.2(b) and 3(c),
require a creditor to
accept a property insurance
policy that provides coverage
equivalent to the insurance
coverage the creditor requires
from any company that
is authorized to transact
business in Texas, unless
the creditor has good
cause to refuse. We conclude
that "good cause" means
a reasonable and nondiscriminatory
basis that relates solely
to the financial soundness
of the insurance company,
or the insurance company's
facility to service the
policy.







DM-118 (RQ-259).
Request from Terry D.
McEachern, District Attorney, Hale
County Courthouse, Plainview, concerning
whether a county auditor's
salary is considered part
of the "amount budgeted
for expenses of the county
auditor's office" for the
purposes of the Local
Government Code, sec.111.013,
limiting increases in the
budget of the county
auditor's office.


Summary of Opinion.
The Local Government Code,
sec.111.013, provides that an
increase from one fiscal
year to the next in
the amount budgeted for
the expenses of the county
auditor's office or the
salary of an assistant
county auditor may not
exceed five percent without
the approval of the commissioners
court. The county auditor's
salary should not be
included in the calculation
of the five percent increase
authorized by sec.111.013.







DM-119 (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.


Summary of Opinion.
Only a traditional county
jail is subject to the
requirements of Chapter 351
of the Local Government
Code. "Alternative incarceration
facilities" are subject only
to the regulations of
the Commission on Jail
Standards. As to such
facilities, the commission may
promulgate minimum standards which
authorize facilities for temporary
purposes; remedies for non-compliance
other than closure of
a facility; facilities intended
to be used for longer
than one year; and facilities
which are not constructed
of masonry, metal or
comparable material.







DM-120 (RQ-336).
Request from Joe S. Falco,
Jr., Grimes County Attorney,
County Courthouse, Anderson, concerning
whether Grimes County may
construct its new jail
at a location in the
county outside the county
seat.


Summary of Opinion.
The Local Government Code,
Article 292.001 authorizes a
commissioners court to build
a county jail at any
location within the county,
including a location outside
of the county seat.







DM-121 (RQ-260/115).
Request from Ray Farabee,
Vice Chancellor, The University
of Texas, Office of General
Counsel, Austin, James F.
Hury, Jr., Chairman, Ways
and Means Committee, Texas
House of Representatives, Austin,
concerning whether proposed drug
testing policies submitted by
the City of League City
and the University of
Texas are constitutional.


Summary of Opinion.
The determination whether a
particular drug testing policy
is constitutional involves questions
of fact and is therefore
beyond the scope of an
attorney general opinion. The
governing board of a
governmental body must make
those determinations in the
first instance, subject to
court review in the event
the policy is challenged.







DM-122 (RQ-367).
Request from John Hannah,
Jr., Secretary of State
of Texas, Austin, concerning
methods of electing hospital
district directors under Chapter
286 of the Health and
Safety Code.


Summary of Opinion.
Hospital districts created under
Chapter 286 of the Health
and Safety Code may elect
all district directors from
single member districts. Where
all directors are elected
from single member districts,
the boundaries of the
latter need not be coterminous
with county commissioner's precincts.







DM-123 (RQ-332).
Request from John Sharp,
Comptroller of Public Accounts,
LBJ State Office Building,
Austin, concerning whether the
Government Code, sec.51.702,
which authorizes the commissioners
court in each county
to adopt a resolution
requiring the payment of
an additional $10 as
court costs on conviction
of a criminal offense,
violates the Texas or
United States Constitutions.


Summary of Opinion.
The Government Code, sec.51.702(b),
which authorizes a commissioners
court to adopt a resolution
requiring the payment of
an additional $10 in
court costs for each
criminal conviction in a
statutory county court, is
ineffective on both due
process and equal protection
grounds. We do not decide
whether sec.25.0015, which authorizes
payment by the state
to each county $25,000
for each statutory county
court judge, is valid.







DM-124 (RQ-243).
Request from Todd K.
Brown, Acting Executive Director,
Texas Workers' Compensation Commission,
Austin, concerning whether the
federal Americans with Disabilities
Act precludes the Workers'
Compensation Commission from disclosing
job applicants' prior work
injuries to prospective employers
pursuant to the Texas
Workers' Compensation Act, Texas
Civil Statutes, Article 8303-2.33.


Summary of Opinion.
Under certain circumstances, the
Texas Workers' Compensation Act,
Texas Civil Statutes, Article
8308-2.33, requires the Workers'
Compensation Commission to release
information to employers about
employment applicants' prior injuries.
Subchapter I of the federal
Americans with Disabilities Act
(the ADA), as interpreted
by the Equal Employment
Opportunity Commission, prohibits
an ADA-covered employer from
obtaining information about an
applicant's workers' compensation
history prior to making
the applicant an offer
of employment. A court,
in interpreting subchapter II
of the ADA, might conclude
that it prohibits public
entities such as the
Workers' Compensation Commission
from aiding a private
entity or person in discriminating
in employment on the
basis of disability. To
the extent they conflict,
the ADA preempts the
Texas Workers' Compensation Act,
and the Workers' Compensation
Commission may not lawfully
release information about applicants'
prior injuries at the
pre-offer stage to ADA-covered
employers.







DM-125 (RQ-281).
Request from Georgia D.
Flint, 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 life
insurance policy proceeds and
cash values are completely
exempt from seizure under
process, and related questions.


Summary of Opinion.
The Insurance Code, Article
21.22 wholly exempts from
service under process life
insurance proceeds and cash
values. The complete exemption
provided by Article 21.22
prevails over the limited
exemption provided to the
cash value of a life
insurance policy under 
sec.42. 001 and sec.42.002
of the Property Code.
The Insurance Code, Article
21.22 does not exempt
from seizure under process
individually purchased annuities.


TRD-9208332


   
   









Requests for Opinions





(RQ-367). Request
from John Hannah, Jr.,
Secretary of State, Austin,
concerning whether Chapter 286
of the Health and Safety
Code permits hospital districts
to elect directors from
single member districts.







(RQ-368). Request
from Fred Toler, Executive
Director, Texas Commission on
Law Enforcement, Officer Standards
and Education, Austin, concerning
whether a constable who
has not met the licensure
requirements of the Commission
on Law Enforcement Officer
Standards and Education may
run for reelection, and
related questions.







(RQ-369). Request
from John Horn, Ed.D.,
Superintendent, Mesquite Independent
School District, Mesquite, concerning
whether the Texas Election
Code, sec.61.007(a)(3) and 
sec.81.002 prohibit public disclosure
of absentee voting rosters.







(RQ-370). Request
from Steven C. Hilbig,
Criminal District Attorney, Bexar
County Justice Center, San
Antonio, concerning whether the
Texas Open Records Act,
sec.3(a)(1), Texas Civil Statutes,
Article 6253-17a, excepts from
disclosure child support payments
histories.







(RQ-371). Request
from Wayne Blevins, Ed.D.,
Executive Secretary, Teacher Retirement
System of Texas, Austin,
concerning whether the Texas
Government Code, sec.824.304(c),
which outlines the conditions
under which disability retirement
is considered to be continuous
for the person's lifetime,
conflicts with the Older
Workers Benefit Protection Act,
and related questions.







(RQ-372). (renumbered
from original file no.
RQ-95 previously filed w/Tex.Reg.)







(RQ-373). (renumbered
from original file no.
RQ-170 previously filed w/Tex.Reg.)







(RQ-374). (renumbered
from original file no.
RQ-218 previously filed w/Tex.Reg.)







(RQ-375). (renumbered
from original file no.
RQ-93 previously filed w/Tex.Reg.)







(RQ-376). (renumbered
from original file no.
RQ-237 previously filed w/Tex.Reg.)







(RQ-377). Request
from Mike Driscoll, Harris
County Attorney, Houston, concerning
whether the Harris County
Flood Control District is
authorized to engage in
wetlands mitigation under the
Wetlands Mitigation Act, Texas
Civil Statutes, Article 5421u,
and related questions.







(RQ-378). Request
from Luis V. Saenz, Cameron
County District Attorney, Brownsvill,
concerning whether the County
Purchasing Act, Local Government
Code, sec.sec.262.021-262.035, applies
to purchases made with
funds generated by forfeitures
under Chapter 59 of the
Code of Criminal Procedure.







(RQ-379). Request
from David R. Smith,
M.D., Commissioner, Texas Department
of Health, Austin, concerning
whether the records and
proceedings of a committee
of a nonprofit incorporated
professional medical association
are confidential and exempt
from discovery, even under
court subpoena, and related
question.







(RQ-380). Request
from Carlos Valdez, County
Attorney, Nueces County Courthouse,
Corpus Christi, concerning whether
a port commissioner's ownership
of a shipping company
which hires the services
of pilots disqualifies him
from service on the Pilot
Board.







(RQ-381). Request
from Mike Driscoll, Harris
County Attorney, Houston, concerning
whether a county is required
to give security for
costs, pursuant to the
Texas Alcoholic Beverage Code,
sec.61.39, when it contests
an application for a
liquor license, and related
questions.







(RQ-382). Request
from David R. Smith,
M.D., Commissioner, Texas Department
of Health, Austin, concerning
whether the Texas Hazard
Communication Act, Texas Health
and Safety Code, sec.502
et seq, which provides
"employees" with accessibility
to certain information regarding
hazardous chemicals at workplaces,
is intended to apply
to students in institutions
of higher learning.







(RQ-383). Request
from Cathy Bonner, Executive
Director, Texas Department of
Commerce, Austin, concerning whether
a municipality which has
levied a sales tax under
Texas Civil Statutes, Article
5190.6 et seq, sec.4A(d),
may reduce or eliminate
the tax after the issuance
of the bonds for which
the tax was levied.







(RQ-384). Request
from John Sharp, Comptroller
of Public Accounts, Austin,
concerning whether a county
education district must comply
with the "truth in taxation"
provisions in Chapter 26
of the Tax Code, and
related questions.







(RQ-385). Request
from Tim Curry, Criminal
District Attorney, Tarrant County
Justice Center, Fort Worth,
concerning whether the Health
and Safety Code, sec.756.042,
which requires outdoor shooting
ranges to be constructed
according to standards set
by the National Rifle
Association, is constitutional.







(RQ-386). Request
from Rachael Martin, Executive
Director, Board of Law
Examiners, Austin, concerning whether
information concerning an applicant's
moral character and fitness
is subject to the Texas
Open Records Act, Texas
Civil Statutes, Article 6252-17a,
when the applicant requests
information relating to his
or her own moral character
and fitness.







(RQ-387). Request
from Edgar O. Coble,
McLean and Sanders, Fort
Worth, concerning whether the
Federal Family Educational Rights
and Privacy Act, 20 United
States Code, sec.1232g, preempts
the Texas Open Meetings
Act, Article 6252-17, Texas
Civil Statutes, to the
extent that they conflict
with regard to parents'
rights of access to educational
records concerning their children.







(RQ-388). Request
from Claire Korioth, Chair,
State Board of Insurance,
Austin, concerning proposed amendments
to the Texas Automobile
Insurance Plan.


TRD-9208337