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-94-036 (ID#-24667).
Request from Honorable Ann W. Richards, Governor, State of Texas, Austin, 
concerning whether a corporation that contracts with the state to provide child 
care services to state employees may enroll children of non-state employees.
Summary of Opinion.
Permitting some children of non-state employees to be enrolled in a day care 
center for children of state employees does not constitute a per se violation of 
Article III, sec.51, of the Texas Constitution.
TRD-9441324

LO-94-037 (ID#-23491).
Request from Honorable Bob Hunter, Chair, Committee on International and 
Cultural Relations, Texas House of Representatives, Austin, concerning use of 
sales and use tax proceeds by a development corporation for "promotional 
purposes" under the Development Corporation Act, Texas Civil Statutes, Article 
5190.6, sec.4A.
Summary of Opinion.
The Development Corporation of Abilene, which operates under sec.4A of the 
Development Corporation Act, Texas Civil Statutes, Article 5190.6, may spend 
proceeds of the sales and use tax imposed under sec.4A for "promotional 
purposes," subject to the proviso of subsection (b)(1) that no more than ten 
percent of corporation revenue may be spent for such purposes, and so long as 
the expenditures are otherwise consistent with the provisions of the act and 
state law generally.
TRD-9441325

LO-94-038 (RQ-636).
Request from Honorable Tim Curry, Criminal District Attorney, Tarrant County, 
Justice Center, Fort Worth, concerning whether Tarrant County criminal district 
court bailiffs must be licensed by the Texas Commission on Law Enforcement 
Officer Standards and Education, whether the bailiffs may carry firearms, and 
related questions.
Summary of Opinion.
A sheriff's or judge's bailiff may carry a firearm in a court or the offices 
utilized by a court "pursuant to written regulations or written authorization of 
the court," under sec.46.04(a)(3) of the Penal Code, even if he or she is not a 
peace officer. This provision does not authorize a bailiff to carry a firearm in 
any other location. Section 46. 03(a)(6) of the Penal Code, which provides an 
exemption to the general prohibition against carrying handguns in sec.46.02, 
does not apply to a bailiff who is not a peace officer. Sheriff's bailiffs are 
not peace officers and are not required to be licensed by the Texas Commission 
on Law Enforcement Officer Standards and Education (TCLEOSE) unless they are 
officers as defined by Chapter 415 of the Government Code by virtue of some 
other law. A deputized judge's bailiff is a peace officer under sec.415.001(5) 
of the Government Code, and must be licensed by TCLEOSE. An undeputized judge's 
bailiff is not a peace officer and is not authorized to carry a handgun outside 
of the courtroom and court's offices. In order to carry a handgun elsewhere, a 
judge's bailiff would need to be deputized pursuant to sec.53.007 of the 
Government Code or some other law. Once deputized, a judge's bailiff would be an 
officer subject to the TCLEOSE licensing requirements. The assignment of a 
reserve deputy sheriff as a bailiff to a criminal district court may constitute 
"active duty" under sec.84.005 of the Local Government Code if it is so 
designated by the sheriff. Under subsection (d) of this provision, a reserve 
deputy sheriff who is on active duty has the same authority as a regular peace 
officer.
A judge's bailiff who has been deputized or a sheriff's bailiff who is a deputy 
sheriff (or a reserve deputy sheriff on active duty) has the powers of arrest 
set forth in Articles 14.01, 14.02, and 14.03 of the Code of Criminal Procedure 
for peace officers. A bailiff who is not a peace officer has the powers of 
arrest of any other citizen, i.e., the power to arrest an offender without a 
warrant when the offense is committed in his or her presence or view, if the 
offense is classed as a felony or is an offense against the public. Code of 
Criminal Procedure, Article 14.01(a).
A sheriff's or judge's bailiff who has been a peace officer serving under 
permanent appointment since before September 1, 1970, is not required to be 
licensed by TCLEOSE. Government Code, sec.415.051(c).
TRD-9441326

LO-94-039 (ID#-25242).
Request from Honorable Judith Zaffirini, Chair, Committee on Health and Human 
Services, Texas State Senate, Austin, concerning whether the term "child" in the 
Government Code, sec.573.024, which defines relationship by affinity for 
purposes of state nepotism prohibitions, includes an adult child who is no 
longer a dependent.
Summary of Opinion.
The term "child" in the Government Code, sec.573.024(b), which defines 
relationship by affinity for purposes of state nepotism prohibitions, includes 
an adult child who is no longer a dependent. The relationship by affinity 
created by marriage survives divorce or the death of a spouse for the lifetime 
of any children of the marriage. Therefore, Chapter 573 of the Government Code 
prohibits the board of trustees of an independent school district from voting to 
hire the ex-wife of a trustee regardless of the age and status of the surviving 
child of the marriage.
TRD-9441327

LO-94-040 (ID#-22527).
Request from Honorable John Vance, Dallas County District Attorney, Dallas, 
concerning whether the County Purchasing Act applies to purchases by a district 
attorney or criminal district attorney out of felony forfeiture funds pursuant 
to Chapter 59 of the Code of Criminal Procedure, clarification of Attorney 
General Opinion DM-246.
Summary of Opinion.
The County Purchasing Act applies to purchases by a district attorney or 
criminal district attorney out of felony forfeiture funds pursuant to Chapter 59 
of the Code of Criminal Procedure.
TRD-9441328.

LO-94-041 (RQ-534).
Request from Honorable Mike Driscoll, County Attorney, Harris County, Houston, 
concerning whether Chapter 54 of Title 7 of the United States Code requires 
county-owned pounds and animal shelters to hold all dogs and cats for five days, 
and related questions.
Summary of Opinion.
Section 2158 of Chapter 54 of Title 7 of the United States Code, as construed by 
regulations promulgated by the Unites States Department of Agriculture, requires 
a county-owned pound or animal shelter to hold for five days only those cats and 
dogs that are sold to dealers. See 9 Code of Federal Regulations, sec.2.133(a). 
These regulations require entities to hold cats and dogs sold to dealers "for a 
period of not less than five full days after acquiring the animal, not including 
the date of acquisition and excluding time in transit. This holding period shall 
include at least one Saturday." Id. Nothing in Chapter 54 precludes a city or 
county from requiring pounds and animal shelters within its jurisdiction to hold 
all cats and dogs for five days. According to the United States Department of 
Agriculture, a publish research facility is not a "dealer" within the meaning of 
sec.2158, nor is a public or private research facility which uses animals for 
its own purposes rather than for resale or to provide to another research 
facility.
TRD-9441329

LO-94-042 (ID#-23372).
Request from Honorable Jose R. Rodriguez, El Paso County Attorney, County 
Courthouse, El Paso, concerning whether the Local Government Code, sec.291.007, 
authorizes El Paso County to collect as a court cost a security fee for cases 
filed in the county probate court and related questions.
Summary of Opinion.
The Local Government Code, sec.291.007(a), authorizes a clerk to collect a 
security fee for civil cases filed in probate court if the commissioners court 
has set such a fee. Section 152.004(a) of the Civil Practice and Remedies Code 
authorizes a clerk to collect a charge for the alternative dispute system fund 
in civil cases filed in probate court if the commissioners court has set such a 
charge. The Local Government Code, sec.323.023(a), authorizes a clerk to collect 
a charge for the law library fund in civil cases filed in probate court if the 
commissioners court has set such a charge.
TRD-9441330

LO-94-043 (ID#-24034).
Request from Honorable Ciro D. Rodriguez, Chair, Committee on Local and Consent 
Calendars, Texas House of Representatives, Austin, concerning whether the San 
Antonio Housing Authority may reimburse commissioners on a per diem basis.
Summary of Opinion.
The Local Government Code, sec.392.035, prohibits a commissioner of a housing 
authority from receiving compensation in any form. However, a commissioner may 
receive reimbursement for necessary expenses incurred while travelling in his 
official capacity as long as such expenses are supported by adequate evidence of 
actual money expended.
TRD-9441331

LO-94-044 (RQ-586).
Request from Honorable Frank H. Bass, Jr., Montgomery County Attorney, Conroe, 
concerning extent to which a county that has accepted a municipal utility 
district's dedication of a road may be responsible for maintenance of a storm 
sewer system that lies within the right of way of the road and that was 
constructed by the district, or purchased by the district from the developer, 
before the district's dedication of the road.
Summary of Opinion.
Montgomery County has the duty to drain a road once the county has accepted a 
municipal utility district's dedication of the road to public use. The county 
has the right to use and maintain an underground storm water sewer located 
within the roadway easement to the extent necessary to accomplish its drainage 
duty. A municipal utility district that has undertaken to construct or purchase 
sewer facilities that provide drainage to private lands is responsible for the 
continuance of such drainage, even though the facilities are located within the 
areal confines of a public roadway, as long as the district owns the drainage 
facilities. The district may perform its drainage duty either by maintenance of 
the sewer or by other means. The doctrine of dedication by implication is a rule 
of estoppel and does not impose an obligation on the public authority unless the 
dedication has been accepted. Therefore, if the district has impliedly dedicated 
an underground storm water sewer located within the roadway easement, the 
district will estopped from asserting rights inconsistent with the dedication; 
but the county's maintenance obligations are not affected by the dedication 
unless it has accepted the dedication.
TRD-9441332

LO-94-045 (ID#-26083).
Request from Honorable Senfronia Thompson, Chair, Committee on Judicial Affairs, 
Texas House of Representatives, Austin, concerning whether an investigator for 
the Harris County district attorney is eligible to serve as a trustee of the 
North Forest Independent School District.
Summary of Opinion.
An investigator for the Harris County district attorney is eligible to serve as 
a trustee of the North Forest Independent School District provided that he or 
she receives no compensation for doing so.
TRD-9441333

Open Records Decision
ORD-623 (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 Open Records Act, Government Code, Chapte 552, when 
the applicant requests information relating to his or her own moral character 
and fitness. (RQ-386)
Summary of Opinion.
Information that is available to an applicant pursuant to sec.82.003(c) of the 
Government Code is not subject to any of the exceptions listed in the Open 
Records Act, Government Code, Chapter 552. The Board of Law Examiners may 
withhold from an applicant information available to him or her pursuant to 
sec.82.003 only if the person who supplied the information requested that the 
board not disclose it.
TRD-9441318

Opinions
DM-288 (RQ-664).
Request from Robert W. Gee, Chair, Public Utility Commission of Texas, Austin, 
concerning authority of the Public Utility Commission of Texas to apply for, 
receive, and expend federal funds, and related questions. (RQ-664)
Summary of Opinion.
The Public Utility Commission has authority under Texas Civil Statutes, Article 
1446c, to apply for federal grants necessary and convenient to the exercise of 
its general power to regulate public utilities. Federal grant funds are placed 
in the state treasury, and Chapter V, sec.22 of the current general 
appropriations act appropriates them to the agencies for the purposes for which 
the federal grant was made, subject to stated conditions. Among other 
conditions, sec.22 provides that federal funds granted to an agency, other than 
an agency or institution of higher education, may only be deposited to and spent 
from one of the specific programs listed in the agency's appropriation. If an 
item of appropriation in the commission's appropriation could be spent for the 
purposes for which the federal grant was received, the federal grant funds may 
be deposited to and spent from that item.
TRD-9441319

DM-289 (RQ-630).
Request from the Honorable O. H. "Ike" Harris, Chair, Committee on State 
Affairs, Texas State Senate, Austin, concerning whether a City of Dallas 
ordinance regulating establishments that sell alcoholic beverages falls within 
the Alcoholic Beverage Code, sec.109.57(d)(2). (RQ-630)
Summary of Opinion.
The term "on-premise sale" in sec.109.57(d)(2) of the Alcoholic Beverage Code 
means the sale of alcoholic beverages for on-premise consumption, rather than 
the sale of alcoholic beverages on the premises. Therefore, sec.109.57(d)(2) 
does not exempt the City of Dallas ordinance from the general preemptive effect 
of sec.109.57, except to the extent the ordinance regulates the location of 
establishments that derive 75% or more of their gross revenue from the sale of 
alcoholic beverages for on-premise consumption.
TRD-9441320

DM-290 (RQ-645).
Request from Honorable Bill Ratliff, Chair, Education Committee, Texas State 
Senate, Austin, concerning whether the Code of Ethics and Standard Practices for 
Texas Educators continues to exist following the abolition of the Teachers' 
Professional Practices Commission, and related questions. (RQ-645)
Summary of Opinion.
The Code of Ethics and Standard Practices for Texas Educators continues to exist 
following the abolition of the Teachers' Professional Practices Commission by 
the 73rd Legislature. See Acts 1993, 73rd Legislature, Chapter 771, sec.19(29) 
at 3025. The code of ethics may be revised or amended by the Texas Education 
Agency pursuant to its rulemaking procedures. The authority to hear complaints 
regarding violations of the ethics code is now vested with the commissioner of 
education. Any complaints that were pending before the commission at the time of 
its abolition are now pending before the commissioner. If the commission were 
re-established, its authority and jurisdiction would depend upon the rules 
adopted by the commissioner pursuant to newly enacted sec.11.954 of the 
Education Code. 
TRD-9441321

DM-291 (RQ-626).
Request from Honorable Roy C. Turcotte, Kenedy County Attorney, Sarita, 
concerning whether a Kleberg County grand jury is authorized to return an 
indictment for an offense that was committed in Kenedy County. (RQ-626)
Summary of Opinion.
A Kleberg County grand jury may return an indictment for an offense committed in 
Kenedy County for which venue in Kleberg County is proper. The determination 
whether it is appropriate for a grand jury to return an indictment for a 
particular offense committed in another county must be made on a case by case 
basis.
TRD-9441322

DM-292 (RQ-611).
Request from David R. Smith, M.D., Commissioner of Health, Texas Department of 
Health, Austin, concerning whether the Texas Board of Health is authorized under 
the Medical Radiologic Technologist Certification Act, Texas Civil Statutes, 
Article 4512m, to promulgate rules discontinuing general certification of 
medical radiologic technologists, and implementing a system of specialty 
certification in diagnostic radiography, nuclear medicine, and radiation 
therapy. (RQ-611)
Summary of Opinion.
The Texas Board of Health is authorized under the Medical Radiologic 
Technologist Certification Act, Texas Civil Statutes, Article 4512m, to 
promulgate rules implementing a system of specialty certification in diagnostic 
radiography, nuclear medicine, and radiation therapy.
TRD-9441323

Request for Opinions
(RQ-679). Request from Honorable William R. Ratliff, Chair, Committee on 
Education, Texas State Senate, Austin, Texas, concerning whether and how a once 
private road may become a part of the public domain after long and continuous 
use by the public. (RQ-680). Request from Honorable Senfronia Thompson, Chair, 
Judicial Affairs Committee, Texas House of Representatives, Austin, Texas, 
concerning whether a county school administration may retain a lobbyist whose 
compensation is paid solely from local funds, and related questions: 
Clarification of Attorney General Opinion DM-278.
(RQ-681). Request from Honorable Tim O'Connell, Criminal District Attorney, 
Collin County Courthouse, McKinney, Texas, concerning whether a commissioners 
court may contract with a private entity for collection of bond forfeiture 
judgments.
(RQ-682). Request from Carol S. Vance, Chair, Texas Board of Criminal Justice, 
Austin, Texas, Attention: Carl Reynolds, Board General Counsel, concerning 
whether the Board of Criminal Justice may delegate to its executive director the 
authority to initiate rulemaking, and related questions.
(RQ-683). Request from Michael Miller, General
Counsel, State of Texas
Board of Pardons and Paroles, Austin, Texas, concerning a judge's entry of a 
defendant's plea of guilty or nolo contendere constitutes a "conviction" so that 
the governor may grant clemency to the defendant pursuant to Texas Constitution, 
Article 4, sec.11, when the judge deferred an "adjudication of guilt" pursuant 
to sec.5 of Article 42.12 of the Code of Criminal Procedure and, on expiration 
of the defendant's period of community supervision, dismissed the proceedings 
and discharged the defendant without an "adjudication of guilt".
(RQ-684). Request from Catherine A. Ghiglieri, Commissioner, Texas Department of 
Banking, Austin, Texas, concerning authority of a state university of higher 
education to implement a "debit card" program for funds voluntarily deposited by 
students under the Education Code, sec.51.002.
(RQ-685). Request from Honorable Cindy Maria Garner, District Attorney, 349th 
Judicial District, Crockett, Texas, concerning liability of a county of payment 
of medical expenses incurred by a non-indigent inmate of a county jail.
(RQ-686). Request from Rebecca E. Forkner, Acting Executive Director, Texas 
State Board of Examiners of Psychologists, Austin, Texas, concerning whether the 
practice of hypnosis, hypnotherapy, psychotherapy, and biofeedback may be 
regulated by the State Board of Examiners of Psychologists.
(RQ-687). Request from Priscilla A. Lozano, The University of Texas System, 
Office of General Counsel, Austin, Texas, concerning whether records of 
investigation into allegations of sexual harassment are accepted from public 
disclosure by common-law privacy under the Government Code, sec.552. 101.
(RQ-688). Request from Tracy R. Briggs, Assistant City Attorney, City of 
Houston, Legal Department, Houston, Texas, concerning whether the Local 
Government Code, sec.143.1214, requires the Houston Police Department to 
withhold all documents relating to a criminal investigation of a Houston police 
officer or firefighter when the employing department does not sustain the 
allegations or take any disciplinary action.
(RQ-689). Request from Honorable Fred Hill, Chair, Committee on Urban Affairs, 
Texas House of Representatives, Austin, Texas, concerning whether members of the 
City of Dallas Planning Commission are "local public officials" under Chapter 
171 of the Local Government Code, whether "business entity" under that chapter 
includes a business entity paid to represent an entity whose request is the 
subject matter of a vote or decision, and related questions.
(RQ-690). Request from Lionel R. Meno, Commissioner of Education, Texas 
Education Agency, Austin, Texas, concerning whether the offices of county 
commissioner and public school trustee are incompatible. 
(RQ-691). Request from James R. Raup, McGinnis, Lochridge & Kilgore, L.L.P., 
Austin, Texas, concerning whether a parent has a special right of access to 
information about his or her child that is protected from disclosure by the 
child's common-law privacy interests, and related questions.
(RQ-692). Request from Merril E. Nunn, City Attorney, City of Amarillo, 
Amarillo, Texas, concerning whether the identities of juvenile victims of crimes 
or accidents are protected from required public disclosure under sec.552.101 of 
the Texas Open Records Act, Chapter 552 of the Government Code.
(RQ-693). Request from Honorable Bill Ratliff, Chair, Committee on Education, 
Texas State Senate, Austin, Texas, concerning whether a taxing unit must call an 
election pursuant to the Tax Code, sec.11.13(n), on the petition of at least 20% 
of the qualified voters of the taxing unit.
(RQ-694). Request from Catherine A. Ghiglieri, Commissioner, Texas Department of 
Banking, Austin, Texas, concerning whether a company that provides certain 
financial services to interstate truckers is required to obtain a license under 
Texas Civil Statutes, Article 489d, the "Sale of Checks" Act, and related 
questions.
(RQ-695). Request from Honorable Merrill L. Hartman, Chair, Court Reporters 
Certification Board, Austin, Texas, concerning whether Texas Rule of Civil 
Procedure 166c and sec.52.021(f) of the Government Code conflict. 
(RQ-696). Request from Honorable David H. Cain, Chair, Committee on 
Transportation, Texas House of Representatives, Austin, Texas, concerning 
whether a statutorily mandated sign furnished by a training company to a parking 
facility constitutes "anything of value" in contravention of Texas Civil 
Statutes, Article 6701g-2, and related questions.
(RQ-697). Request from Richard C. Ladd, Commissioner, Texas Health and
Human Services Commission, Austin, Texas, concerning whether the Texas Health 
and Human Services Commission may, in the absence of state law, pursue "Medicaid 
estate recoveries" under the relevant provisions of the federal Social Security 
Act, 42 United States Code, sec.1917(b)(1).
(RQ-698). Request from Honorable Martha Whitehead, Treasurer, Texas State 
Treasury, Austin, Texas, concerning whether certain non-profit foundations
and other entities are eligible to participate in a public funds investment 
pool.
TRD-9441334