ATTORNEY GENERAL 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 may be 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-93-99 (RQ-603). Request from Jeannene Fox, Acting Administrator, Texas Alcoholic Beverage Commission, Austin, concerning whether the Bingo Enabling Act, Texas Civil Statutes, Article 179d, requires a person to hold a commercial lessor's license if the person leases premises to an authorized organization licensed to conduct bingo. Summary of Opinion. Section 13(f) of the Bingo Enabling Act, Texas Civil Statutes, Article 179d, requires an authorized commercial lessor to be licensed as a commercial lessor only if the lessor leases directly to a licensed authorized organization. An authorized organization that is not licensed to conduct bingo on the leased premises is not a licensed authorized organization for purposes of sec.13(f). Thus, an authorized commercial lessor that leases premises to a licensed authorized organization for its sole use and total control must hold a commercial lessor's license. Additionally, an authorized commercial lessor that leases premises to a licensed authorized organization which conducts bingo on the premises as well as subleases the premises to one or more other licensed authorized organizations to conduct bingo must hold a commercial lessor if the lessor leases premises to an authorized organization which conducts bingo at another location and subleases the rented premises to another authorized organization to conduct bingo on the premises. TRD-9434421 LO-93-100 (ID#-22054). Request from John W. Berry, Karnes County Attorney, Karnes City, concerning which health care services the Karnes County Hospital District is responsible for providing to indigent residents incarcerated in the Karnes County Jail. Summary of Opinion. The question of which health care services the Karnes County Hospital District is responsible for providing indigent residents of the district is to be determined in the first instance by the board of directors of the district. TRD-9434422 LO-93-101 (ID#-18315). Request from Peter Stone, Executive Director, Board of Tax Professional Examiners, Austin, concerning use of classification titles by the Board of Tax Professional Examiners under Texas Civil Statutes, Article 8885. Summary of Opinion. The Board of Tax Professional Examiners has statutory authority under Texas Civil Statutes, Article 8885, to make classifications of tax appraisers, assessors, and collectors, and rulemaking authority under the statute to forbid persons not so classified from holding themselves out under titles not properly possessed. TRD-9434423 LO-93-102 (ID#-22015). Request from Mike Driscoll, Harris County Attorney, Houston, concerning clarification of Letter Opinion Number 92-7 (1992). Summary of Opinion. Pursuant to sec.sec.118.052(3)(F), 118.0546, and 118.0645 of the Local Government Code, a county clerk is required to collect a records management and preservation fee in the amount of $5.00 upon the filing of any document relating to a civil case or a probate case if the document initiates the case, is an "ancillary pleading" to a civil case, or initiates an adverse probate action. A county clerk may not impose a records management and preservation fee upon the filing of any other document relating to a civil case or probate case. Additionally, pursuant to Article 102.005(d) of the Code of Criminal Procedure, a county clerk must charge a defendant convicted of an offense a records management and preservation fee of $10.00. The clerk may not charge a records management and preservation fee on any of the individual documents filed in connection with a criminal case. As to any document that is filed and recorded in the records of a county clerk but that is not related to a civil case, a probate case, or a criminal case, sec.118.011(b)(2) of the Local Government Code authorizes, but does not require, a county clerk to impose a records management and preservation fee of "not more than $5.00" (unless another statute expressly forbids the imposition of such a fee on a particular type of document). In regard to documents subject to the discretionary record management and preservation fee pursuant to sec.118.011(b)(2) of the Local Government Code, a county clerk generally may not impose a records management and preservation fee on certain documents filed in the clerk's office while choosing to exempt other documents from the fee. Furthermore, a county clerk may not impose a records management and preservation fee that varies depending on the type of document filed. TRD-9434424 LO-93-103 (ID#-22408). Request from Jeannene Fox, Acting Administrator, Texas Alcoholic Beverage Commission, Austin, concerning whether a call accounting system used by the Texas Alcoholic Beverage Commission is a "pen register" as defined by the Code of Criminal Procedure, Article 18.21, and related questions. Summary of Opinion. The determination whether a call accounting system used by the Texas Alcoholic Beverage Commission constitutes a "pen register" under the Code of Criminal Procedure, Article 18.21, requires the resolution of factual issues and is therefore not amenable to the opinion process. According to Attorney General Opinion JM-1073 (1989), the use of a pen register by a state agency to protect public property by detecting employee misuse of telephone services falls within subsection (d) of the Penal Code, sec.16.03, and is therefore an exception to the offense set forth in subsection (a) of that section. TRD-9434425 LO-93-104 (ID#-21039). Request from Keith Oakley, Chairman, Committee on Public Safety, Texas House of Representatives, Austin, concerning ballot language to be used by a city for an election on the same ballot on the imposition of a sales and use tax under Texas Civil Statutes, Article 5190.6, and the reduction of the rate of a previously adopted additional sales and use tax under the Tax Code, sec.321.101(b). Summary of Opinion. For simultaneous election on the imposition under Texas Civil Statutes, Article 5190.6, sec.4A, of a sales and use tax of one-fourth of one percent for economic development and the reduction of its previously adopted additional sales and use tax for the reduction of property taxes under the Tax Code, sec.321.101(b), from a rate of one-half of one percent to one-quarter of one percent, the city should use the proposition language set out in sec.4A(p), as follows: The adoption of a sales and use tax within the city for the promotion and development of new and expanded business enterprises at the rate of one-fourth of one percent and the adoption of an additional sales and use tax within the city at the rate of one- fourth of one percent to be used to reduce the property tax rate. TRD-9434426 LO-93-105 (ID#-20150). Request from Charles C. Bailey, District Attorney, 76th Judicial District of Texas, Mount Pleasant, concerning whether a commissioners court may consider in executive session questions about the use of county-owned vehicles. Summary of Opinion. Whether a commissioners court is authorized to hold an executive session pursuant to sec.551.076 of the Open Meetings Act involves questions of fact that cannot be addressed in the opinion process. The record of an executive session shall be made available for inspection and copying only upon court order in an action brought pursuant to the act. TRD-9434427 LO-93-106 (ID#-21598). Request from Fred Hill, Chair, Committee on Urban Affairs, Texas House of Representatives, Austin, concerning whether a municipality may require a single lot owner within its extraterritorial jurisdiction to file a subdivision plat before utilities may be connected. Summary of Opinion. If the municipal authority responsible for approving plats of subdivisions determines that a plat containing the land of a single lot owner was required to be filed by virtue of the subdividing of the larger tract of which the lot was a part, but that such plat was not prepared, reviewed or approved, it may not issue the certificate provided for by the Local Government Code, sec.212.0115, and the entity providing utility services under sec.212.012 may not connect utilities to the lot. TRD-9434428 LO-93-107 (ID#-21053). Request from David T. Garcia, Brooks County Attorney, Falfurrias, concerning whether the Brooks County Commissioners Court is authorized to hear an appeal of the sheriff's suspension of a deputy sheriff. Summary of Opinion. The Brooks County Commissioners Court is not authorized to hear an appeal of the sheriff's suspension of a deputy sheriff. TRD-9434429 LO-93-108 (ID#-22454). Request from Kenny Marchant, Chair, Committee on Investments and Banking, Texas House of Representatives, Austin, concerning whether House Bill 859, Acts 1993, 73rd Legislature, Chapter 473, prohibits the release of utility customer information to a person or entity engaged in the business of welcoming newcomers to the city and related questions. Summary of Opinion. House Bill 859 prevents a government-operated utility from releasing personal information about a customer to an entity that welcomes newcomers to the city when the customer requests that the information be kept confidential and the entity is not affiliated with the city. Under these circumstances, none of the exceptions contained in sec.5 of the Act apply. However, this office cannot determine whether an entity that provides newcomer welcoming services would fall within any of the exceptions contained in sec.5 if the city contracted with the entity to provide services or if the entity were otherwise affiliated with the city. Making these determinations would require the resolution of factual questions and, therefore, is not amenable to the opinion process. A government- operated utility is permitted to, but not required to, include a box on the form it provides its customers that can be checked to authorize disclosure of personal information to a welcoming service or other particular organization while requesting that the information be kept otherwise confidential. TRD-9434430 LO-93-109 (RQ-535). Request from Leon F. Pesek, Jr., Criminal District Attorney, Bowie County, Texarkana, concerning authority of a county to enforce an ordinance relating to landfills against a solid waste disposal facility exempt from state permitting under Health and Safety Code, sec.361.090. Summary of Opinion. Under the facts stated, a county has no authority to enforce a licensing and regulatory ordinance against a solid waste disposal facility exempt under Health and Safety Code, sec.361.090, from state permitting. TRD-9434431 LO-93-110 (ID#-22365). Request from Merrill L. Hartman, Chair, Court Reporters Certification Board, Austin, concerning whether newly added subsections (e) and (f) of sec.52.021 of the Government Code conflict and related questions. Summary of Opinion. Subsections (e) and (f) of sec.52.021 of the Government Code, as amended by House Bill 2037, Acts 1993, 73rd Legislature, Chapter 1037, sec.2, do not conflict. A person who records a deposition upon oral examination using a tape recorder as the primary or only method does not engage in "shorthand reporting" in violation of sec.52.021(b) or use a "shorthand reporting method" for which he or she is not certified. The recording of such a deposition using a tape recorder as the primary or only method, however, would run afoul of sec.52.021(f), which provides that all such depositions must be recorded by a certified shorthand reporter, unless its exceptions apply. Subsection (g) of sec.52.021, as amended by House Bill 2073, does not authorize any person, or any entity other than the Court Reporters Certification Board, to file a complaint against a certified shorthand reporter in district court. Section 52.027 of the Government Code does not authorize the filing of a complaint with the board by an anonymous individual; it does authorize the filing of a complaint by a professional association, provided that an authorized agent completes the complaint form and signs it under oath on behalf of the professional association. TRD-9434432 LO-93-111 (ID#-22176). Request from David Myers, Executive Director, Texas Commission for the Deaf and Hearing Impaired, Austin, concerning whether interpreters for the deaf hired by councils that contract with the Texas Commission for the Deaf and Hearing Impaired are employees or independent contractors. Summary of Opinion. Under Texas law, the determination whether an interpreter for the deaf hired by a council that contracts with Texas Commission for the Deaf and Hearing Impaired is an employee or an independent contractor is a question of fact and is therefore beyond the purview of the opinion process. TRD-9434433 LO-93-112 (RQ-632). Request from David Cain, Chair, Committee on Transportation, Texas House of Representatives, Austin, concerning whether regulations of the Texas Railroad Commission promulgated under Texas Civil Statutes, Article 911b, are preempted by federal law. Summary of Opinion. Title 49 sec.1305(a)(1) of the United States Code, preempts the Texas Railroad Commission from adopting rules for the economic regulation of the intrastate trucking activities of an integrated air-ground delivery service such as Federal Express. TRD-9434434 LO-93-113 (ID#-22316). Request from Michael E. Hines, Executive Director, Texas Commission on Fire Protection, of a fire department head under the Government of and temporary fill-in work of a part-time fire protection employee under the Government Code, sec.419.0321, and rulemaking authority to define duties related to fire suppression as used in the Government Code, sec.419.0321. Summary of Opinion. Subsection (f) of sec.419.032 of the Government Code (the code) applies to to the position of fire department head regardless of whether that person is assigned fire suppression duties, so long as the person fits within the statutory definition of fire protection personnel contained in code sec.419.021. Subsection (f) applies by its terms only to after the effective date of Senate Bill 1110, which added the new subsection (f). Acts 1993, 73rd that occurred before the effective date of Senate Bill 1110 would be governed by the law then in effect. Subsections (a) and (c) of sec.419.0321 are self-executing and do permit a fire department, without the need for prior regulatory implementation by the Texas Commission on Fire Protection (the commission), to hire an uncertified part-time fire protection employee on a temporary or probationary basis, subject to the time limit for such employment that is contained in subsection (c). The provisions for certification of part-time fire protection employees contained in sec.419.0321 are not self-executing, however, and require regulatory implementation. The temporary fill-in work of a part-time fire protection employee permitted by sec.419.0321(f) does count towards the limitation of 500 hours per year in duties related to fire suppression under sec.419.0321(e)(2). The commission does not have authority to define by rule the meaning of the phrase duties related to fire suppression as that phrase is used in sec.419.0321(e). TRD-9434435 Open Records Decisions ORD-621 (RQ-542). Request from Jerry R. Hoodenpyle, Rohne Hoodenpyle Lobert Myers & Scott, P.C., Arlington, and Jennifer Riggs, Attorney at Law, Austin, concerning whether the Arlington Chamber of Commerce and the Arlington Economic Development Foundation are subject to the Texas Open Records Act, Government Code, Chapter 552. Summary of Opinion. The Arlington Economic Development Foundation is a "governmental body" within the meaning of the Texas Open Records Act; all information that it collects, assembles, or maintains is subject to the act. The Arlington Chamber of Commerce is a governmental body to the extent that it receives support from the Arlington Economic Development Foundation; information relating to the economic development activities the chamber performs on behalf of the foundation is subject to the Open Records Act. TRD-9434409 Opinions DM-271 (RQ-612). Request from Ray Farabee, General Counsel, The University of Texas System, Office of General Counsel, Austin, concerning whether the University of Texas System is authorized to limit the number of vendors offering products to its faculty members under an optional retirement program governed by Chapter 830 of the Government Code. Summary of Opinion. Section 830.004 of the Government Code delegates to the governing bodies of institutions of higher education the authority to structure an optional retirement program for its faculty members, including the authority to limit the number of vendors and to scrutinize the quality of their products. Texas Civil Statutes, Article 6228a-5, does not prohibit an institution of higher learning from limiting the number of vendors offering products to its faculty members under an optional retirement program. TRD-9434412 DM-272 (RQ-593). Request from Ray Farabee, Vice Chancellor and General Counsel, Office of General Counsel, The University of Texas System, Austin, concerning whether, under sec.11.11 of the Tax Code, the M. D. Anderson Cancer Center Jesse H. Jones Rotary House International is exempt from ad valorem taxation and related question. Summary of Opinion. Pursuant to the Tax Code, sec.11.11, property that an institution of higher education owns is exempt from taxation if the property either serves a public purpose, or is held or dedicated for the support, maintenance, or benefit of the institution. To the extent that property that is held or dedicated for the support, maintenance, or benefit of the institution is not used for a public purpose, however, it is not exempt from taxation. Furthermore, sec.11.11 specifies that public property is not used for a public purpose if the property is, among other things, used to provide "private residential housing" for members of the public other than employees or students of the institution. The determination of whether specific property is used to provide "private residential housing" depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Because the Jesse H. Jones Rotary House International provides only temporary accommodations for patients at the M. D. Anderson Cancer Center and their families and for guests of the University of Texas Systems, it is not used to provide private residential housing for purposes of the Tax Code, sec.11.11(d), (e). Additionally, the Rotary House is used primarily for the health, comfort, and welfare of the public; it is therefore used for a public purpose. Consequently, the Rotary House is exempt from ad valorem taxation pursuant to the Tax Code, sec.11.11. TRD-9434413 DM-273 (RQ-505). Request from Charles S. Brack, County Attorney, Chambers County, Anahuac, concerning whether the Chambers County Commissioners Court has the authority to create a civil process department, separate and apart from control of the sheriff. Summary of Opinion. The Commissioners Court of Chambers County does not have the express or implied statutory authority to establish an office of civil process. TRD-9434414 DM-274 (RQ-605). Request from O. H. "Ike" Harris, Chair, Committee on State Affairs, Texas State Senate, Austin, concerning whether, in accordance with sec.2 of the Public Funds Investment Act, Texas Civil Statutes, Article 842a-2, a public funds investment pool may "purchase, sell, or invest its funds or funds under its control" in covered call contracts or covered put contracts. Summary of Opinion. A covered call contract and a covered put contract are not, for purposes of sec.2 of the Public Funds Investment Act, Texas Civil Statutes, Article 842a-1, "obligations of the United States or its agencies and instrumentalities," "obligations, the principal of and interest on which are unconditionally guaranteed ... by ... the United States or its agencies and instrumentalities," or "fully collateralized repurchase agreements having a defined termination date." Thus, sec.2 does not authorize a public funds investment pool to "purchase, sell, or invest its funds and funds under its control" in covered call contracts or covered put contracts. TRD-9434415 DM-276 (RQ-508). Request from David U. Flores, Williamson County Auditor, Georgetown, concerning whether a county's single-employer, self-funded medical benefit plan is subject to certain provisions of the Insurance Code, and related questions. Summary of Opinion. Article 1.24C, Article 3.51-9, and Article 21. 53 of the Insurance Code apply to single-employer, self-funded plans. These provisions are not preempted by the federal Employee Retirement Income Security Act, 29 United States Code, sec.sec.1001-1461, (ERISA) as they apply to "governmental plans" as defined by Title 29, sec.1002(32) of the United States Code. Under Article 3.51-6, sec.3A, of the Insurance Code, a single-employer, self-funded plan must make the offer of coverage for in vitro fertilization procedures to the employer. Article 3.51- 14 requires a single-employer, self-funded plan to offer coverage of expenses incurred in the treatment of serious mental illness to the employer. An entity is subject to Article 20.12 of the Insurance Code only if it is comprised of seven or more persons, the majority of whom are hospital superintendents, physicians or surgeons, incorporated for the purpose of providing hospital care at a hospital. An entity is subject to sec.sec.3.3701-3. 3705 of Title 28 of the Texas Administrative Code only if it is an insurer authorized to engage in the business of health insurance in Texas. A governmental entity which reimburses, provides, offers to provide, or administers medical benefits under a health benefits plan for which it is the payor is not subject to sec.161.091 of the Health and Safety Code. TRD-9434417 DM-275 (RQ-600). Request from Charles D. Travis, Executive Director, Employees Retirement System of Texas, Austin, concerning whether the Teacher Retirement System of Texas (TRS) is responsible for paying the early retirement incentive portion of its share of an annuity of a member who has transferred service credit from the TRS to the Employees Retirement System of Texas. Summary of Opinion. Under sec.43(e) of House Bill 2711, Acts 1993, 73rd Legislature, Chapter 813, and newly enacted sec.805.008 of the Government Code, the Teacher Retirement System of Texas (TRS) is responsible for paying the early retirement incentive portion of its share of the total actuarial value of an annuity of a member who has transferred service credit from the TRS to the Employees Retirement System of Texas. TRD-9434418 DM-277 (RQ-215). Request from LaVonne Garland, Interim Director, Texas Board of Architectural Examiners, Austin, concerning whether complaints under Texas Civil Statutes, Article 249a, sec.13, may be tried in justice courts as Class C misdemeanors. Summary of Opinion. The $500 maximum fine limitation for Class C misdemeanors set forth in sec.12.23 of the Penal Code does not apply to the misdemeanor of unauthorized practice of architecture defined in Texas Civil Statutes, Article 249a, sec.13, which sets punishment as a fine ranging from $250 to $1,000. The $500 limitation on the criminal jurisdiction of justice courts contained in Article 4.11 of the Code of Criminal Procedure is void for violation of sec.19 of Article V of the Texas Constitution, which contains no maximum limit on that court's jurisdiction over fine-only misdemeanors. Article V, sec.19, does not require legislative implementation, therefore, complaints under Article 249a may be filed and tried in justice court. Letter Opinion Number 92-23 (1992) is overruled. TRD-9434419 DM-278 (RQ-610). Request from William R. Ratliff, Chair, Education Committee, Texas State Senate, Austin, concerning whether the Dallas County Schools, a county school administration operating under Chapter 17 and 18 of the Education Code, is a "school district" within the meaning of the Education Code, sec.21.939, which places restrictions on lobby-related activities by school districts. Summary of Opinion. The Dallas County Schools, a county school administration operating under Chapters 17 and 18 of the Education Code, is a "school district" within the meaning of the Education Code, sec.21.939, which places restrictions on lobby- related activities by school districts. TRD-9434420 Requests for Opinions RQ-628. Request from Honorable Carl E. Lewis, County Attorney, Nueces County Courthouse, Corpus Christi, concerning construction of Article 15.27, Code of Criminal Procedure, which requires law enforcement agencies to notify a primary or secondary school in which an arrestee is believed to be enrolled, and related questions. RQ-629. Request from Honorable David Cain, Chair, Committee on Transportation, Texas House of Representatives, Austin, concerning whether a justice court, a municipal court, or a county court is the proper venue for prosecutions brought under House Bill 1084, Acts 1993, 73rd Legislature, Chapter 88, at 175-76. RQ-630. Request from Honorable O. H. "Ike" Harris, Chairman, Committee on State Affairs, Texas State Senate, Austin, concerning validity under the Alcoholic Beverage Code of a Dallas city ordinance that purports to regulate the sale of alcoholic beverages. RQ-631. Request from Honorable Tom Craddick, Chairman, Committee on Ways and Means, Texas House of Representatives, Austin, concerning whether a nonprofit organization may furnish eyeglasses to indigents. RQ-632. Request from Honorable David Cain, Chairman, Committee on Transportation, Texas House of Representatives, Austin, concerning whether regulations of the Railroad Commission on promulgated under Texas Civil Statutes, Article 911b, are preempted by federal law. (Note: Already issued as LO-93-112.) RQ-633. Request from Jennifer C. Smith, Staff Attorney, Legal Division, Texas Water Commission, Austin, concerning whether the Government Code, sec.552.106, excepts from public disclosure a recycling allocation list prepared by a state agency from the working drafts of its proposed administrative rules. RQ-634. Request from Honorable O. H. "Ike" Harris, Chairman, Committee on State Affairs, Texas State Senate, Austin and Honorable Ben Campbell, Chairman, Committee on County Affairs, Texas House of Representatives, Austin, concerning whether under sec.113.061 of the Local Government Code a vendor should submit a claim against a county with the county treasurer, county auditor, or some other county official (Identification Number 23592), and whether the county treasurer or the county auditor is the proper official to perform tasks set forth in Comptroller procedures for paying county claims (Identification Number 23596). RQ-635. Request from Craig Anthony Arnold, Matthews & Branscomb, San Antonio; Ruben R. Barrera, Davidson & Troilo, P.C., San Antonio; and Beverly J. Landers, Senior Supervising Attorney, Department of Law-Claims Division, City of Austin, Austin, concerning open records requests Identification Number 22040, Identification Number 22546, and Identification Number 22932. RQ-636. Request from Honorable Tim Curry, Criminal District Attorney, Tarrant County, Fort Worth, concerning whether a district courtroom bailiff must be a licensed peace officer, and related questions. RQ-637. Request from Honorable David Brabham, Criminal District Attorney, Gregg County, Longview, concerning whether in awarding bids for the purchase of vehicles, a governmental body may, or must, consider a $1,000 "certificate" furnished by a bidder as settlement of a class action suit brought by various Texas municipalities. RQ-638. Request from Jeannene Fox, Acting Administrator, Texas Alcoholic Beverage Commission, Austin, concerning whether Texas Civil Statutes, Article 1792, sec.11(u), the Bingo Enabling Act, which prohibits an organization conducting bingo games from permitting any player to use a special electronic device, contravenes the federal Americans with Disabilities Act, 42 United States Code, sec.1201, et. seq. RQ-639. Request from Lionel R. Meno, Commissioner of Education, Texas Education Agency, Austin, concerning proper local election dates for 1994 in light of the Education Code, sec.41.0052. RQ-640. Request from Honorable Libby Linebarger, Chair, Committee on Public Education, Texas House of Representatives, Austin, concerning whether a school board member may vote by proxy at a school board meeting. TRD-9434436