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-92-36 (ID-17053). Request from Gonzalo Barrientos, Chairman, Nominations Committee, Texas State Senate, Austin, concerning whether the Texas Constitution Article XVI, sec.40 precludes a person from simultaneously holding the position of police officer for two different cities and related questions. Summary of Opinion. The Constitution, Article XVI, sec.40 prevents one person from simultaneously holding the position of assistant police chief for the City of Houston and police chief for the City of Austin. An individual may, however, under the facts presented, act as a "consultant" for the City of Austin without thereby vacating the Houston position, so long as the individual is not a "peace officer" in the City of Austin. A person may prospectively accept a second office without thereby vacating the first, so long as the terms of the offer and acceptance specify a future "effective date. " LO-92-37 (ID-15534). Request from Helen L. Campbell, Commissioner, Office of Fire Fighters' Pension Commissioner, Austin concerning whether the board of trustees of a fire fighters' relief and retirement fund organized under Texas Civil Statutes, Article 6243e, may delegate all of its authority over investments to investment managers. Summary of Opinion. The board of trustees of a fire fighters' relief and retirement fund organized under Texas Civil Statutes, Article 6243e, is not empowered to delegate its entire discretionary authority over investment decisions to an investment manager. LO-92-38 (ID-16593). Request from Joe Darnell, General Counsel, Texas Alcoholic Beverage Commission, Austin, concerning whether the proposed reorganization of the Alcoholic Beverage Commission comports with provisions of the Bingo Enabling Act. Summary of Opinion. Based on the information provided, the proposed reorganization of the operating structure of the Texas Alcoholic Beverage Commission is at least in substantial compliance with the provisions of the Bingo Enabling Act. LO-92-39 (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 under 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 Rule of Civil Evidence 510(d)(6). Summary of Opinion. Pursuant to Texas Rule of Civil Evidence 510(d) (6), a licensed psychologist may disclose privileged information if the information is relevant in any suit affecting the parent-child relationship. The Opinion Committee will not issue an opinion that effectively overrules a judicial decision. LO-92-40 (RQ-308). Request from David R. Smith, M.D. Commissioner, Texas Department of Health, Austin, concerning whether the Department of Health or a county clerk has the authority to rescind a marriage license. Summary of Opinion. Neither the Department of Health nor a county clerk has the power to rescind or cancel an application for a marriage license, or a license itself, at the request of an affiant who asserts, inter alia, that he is not subject to the Family Code. Any persons residing in any county of Texas is subject to the laws of Texas, including the Family Code. LO-92-41 (RQ-327). Request from Ray Farabee, Vice Chancellor and General Counsel, The University of Texas System, Austin, concerning whether the board of regents of the University of Texas System has the legal authority to provide prepaid legal services coverage to its employees as part of the university's cafeteria plan. Summary of Opinion. Under the Insurance Code, Article 3.50-3, the University of Texas System may include in its cafeteria plan prepaid legal services coverage so long as federal law permits the inclusion of the prepaid legal services coverage in a cafeteria plan. Whether federal law permits the inclusion of prepaid legal services coverage in a cafeteria plan is a question involving the resolution of issues of federal law, a task that is beyond the purview of this committee. The university's inclusion of prepaid legal services coverage in the employee benefit package does not violate the Texas Constitution, Article III, sec.51, if the university decides in the first instance that such an expenditure serves a "public purpose." LO-92-42 (RQ-314). Request from Ernestine V. Glossbrenner, Chair, Committee on Public Education, Texas House of Representatives, Austin, concerning whether the Education Code, sec.4.03(d) supersedes the rules the Structural Pest Control Board promulgated (22 TAC Chapters 593, 595) pursuant to House Bill 853, Acts 1991, 72nd Legislature, Chapter 771, sec.6, which amended the Texas Structural Pest Control Act, Texas Civil Statutes, Article 135b-6. Summary of Opinion. The Education Code, sec.4.03 does not supersede House Bill 853, which added sec.4A-J to the Structural Pest Control Act, Texas Civil Statutes, Article 135b- 6. Accordingly, school boards must comply with both statutes by utilizing properly licensed commercial or noncommercial applicators for pest control, and by either staying within, amending, or supplementing the school board's budget. LO-92-43 (ID-15752). Request from Riley J. Simpson, President, Board of Trustees, Central Texas College, Killeen, concerning whether the hiring of an employee by Central Texas College while the employee's uncle serves on the college board of trustees violates Texas Civil Statutes, Article 5996a; whether reelection of board member cures original nepotism violation. Summary of Opinion. The hiring of an employee by Central Texas College while the employee's uncle serves on the college's board of trustees violates Texas Civil Statutes, Article 5996a, the Texas nepotism statute. The reelection of the uncle to the board of trustees does not cure the original violation. LO-92-44 (RQ-13). Request from Frank Madden, County Auditor, Cherokee County Courthouse, Rusk, concerning responsibility of the commissioners court with respect to district court order decreeing pay increases for district court personnel. Summary of Opinion. District judges, acting without commissioners court approval, establish the salaries of the county auditor, the auditor's assistants, and court reporters. The commissioners court must approve salaries for court coordinators and secretaries, and therefore has no duty to order the salary increases for those positions in accordance with a district court administrative order. TRD-9212010 Opinions DM-156 (RQ-290). Request from Mike Driscoll, Harris County Attorney, Houston, concerning whether the Texas Constitution, Article XVI, sec.40 or the commonlaw doctrine of incompatibility precludes a deputy constable from simultaneously holding a position as an assistant fire chief with the City of Houston Fire Department. Summary of Opinion. The position of deputy constable of a county is a civil office of emolument. However, the position of assistant fire chief in the City of Houston Fire Department is not a civil office of emolument. Thus, neither the Texas Constitution, Article XVI, sec.40 nor the common-law doctrine of incompatibility precludes one person from simultaneously serving as deputy constable for a county and assistant fire chief for the City of Houston Fire Department. DM-157 (RQ-306). Request from John Hannah, Office of the Secretary State, Executive Division, State of Texas, Austin, concerning whether a health spa exempted from the security deposit requirement by the 1985 version of the Health Spa Act is exempt under the 1989 revision of the Act and related questions. Summary of Opinion. The Health Spa Act, Texas Civil Statutes, Article 5221l, as amended in 1989, effective September 1, 1989, requires every health spa in the state to file a surety bond with the secretary of state. The security requirements imposed by the present version of the law applies to a health spa that opens an initial location on or after September 1, 1989, and to each additional location opened after that date by such spas. A health spa in operation before September 1, 1989, and any additional location opened by that health spa on or after September 1, 1989, is subject to the security requirements in effect on August 31, 1989. An exemption for some health spas from all security requirements included in the prior version of the Health Spa Act has been repealed an is not continued in effect by the savings clause in the 1989 amendments. Health spas that were formerly exempted from the security requirements no longer have the benefit of that exemption. Health spas that were exempt from all security deposits under the repealed provision are now required to maintain security in the amount of $5,000 without first filing a security deposit of $20,000. If a spa in operation on August 31, 1989, opens a new location after September 1, 1989, the new spa location must file an initial security deposit of 20% of the total value of the prepayments it has received, but not less than $20,000 nor more than $50, 000. It must maintain this amount of security for two years after the date the security deposit is filed, and thereafter, it must continuously maintain security in the amount of $5,000. DM-158 (RQ-121). Request from Jim F. Davis, County-District Attorney, Dimmitt, concerning whether a county commissioners court may "transfer" county road and bridge employees discharged by an ex officio road commissioner to another ex officio road commissioner's precinct and continue to pay the employees with funds budgeted for the former precinct, and related questions. Summary of Opinion. A county commissioners court in a county adopting the ex officio road commissioner option for road construction and maintenance responsibilities, Texas Civil Statutes, Article 6702-1, Chapter 3, Subchapter A, lacks authority to overturn an ex officio road commissioner's discharge of an employee working in that commissioner's precinct and paid from county road and bridge funds. However, the law would: allow another ex officio road commissioner to hire such a discharge employee, with authorization by the full commissioners court; and allow the commissioners court to transfer funds originally budgeted for the former precinct to the new precinct of employ to cover the employee's remuneration. Local Government Code, sec.111.010(d). DM-159 (RQ-385). Request from Tim Curry, Criminal District Attorney, Tarrant County, Fort Worth, concerning the constitutionality of 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. Summary of Opinion. The Health and Safety Code, sec.756.042, which requires outdoor shooting ranges to be constructed according to standards promulgated by the National Rifle Association, is an invalid attempt to confer legislative authority on a private entity in contravention of the Texas Constitution, Article III, sec.1. DM-160 (RQ-310). Request from Gerard Swine, Acting Executive Director, Texas Board of Licensure for Nursing Home Administrators, Austin, concerning whether, under the presence of ex officio members of the Texas Board of Licensure for Nursing Home Administrators is considered in determining whether a quorum of the board is present, and related questions. Summary of Opinion. Under Texas Civil Statutes, Article sec.4442d, of the Nursing Home Administrators Licensure Act, for purposes of determining the number of members of the Texas Board of Licensure for Nursing Home Administrators sufficient to constitute a quorum, the board must base its calculation only on the voting board members. Ex officio, nonvoting members are not counted for purposes of determining the presence of a quorum. Under the same Act, sec.8(a), which requires the board to promulgate, alter, or abolish a rule by a two-thirds majority vote, the board calculates the number of votes needed for a majority by multiplying by two-thirds the number of members qualified to vote (provided that a sufficient number of members are present at the meeting to constitute a quorum). For purposes of determining the number of votes necessary to constitute a two-thirds majority, the number of members present at the meeting is irrelevant. DM-161 (RQ-186). Request from Robert H. Norris, Executive Director, Texas Board of Architectural Examiners, Austin, concerning construction of Texas Civil Statutes, Article 249a, sec.16, the act regulating the practice of architecture. Summary of Opinion. Texas Civil Statutes, Article 249a, sec.16, the statute regulating the practice of architecture, does not bar a professional engineer licensed under Texas Civil Statutes, Article 3271a, from preparing plans and specifications, the preparation of which requires the application of engineering principles and the interpretation of engineering data, for "a new building that is to be constructed an owned by a state agency, a political subdivision of this state, or any other public entity in this state if the building will be used for education, assembly, or office occupancy and the construction costs exceed $100,000." TRD-9212011