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 of Opinions LO-94-72 (ID-22433). Request from Honorable Bill Sims, Chair, Natural Resources Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning Reconsideration of Letter Opinion Number 93-33 (1993) as to whether a state employee may serve on the board of directors of a municipal utility district and receive compensation in the form of a per diem and reimbursement of expenses. Summary of Opinion. Article XVI, Section 40 permits state employees or other individuals who receive compensation from state funds to serve as members of the governing bodies of school districts, cities, towns, or other local governmental districts "if they receive no salary" for such service. The term "salary" in this provision means "compensation" in any form. Letter Opinion Number 93-33 (1993) correctly decided that a state employee who serves on the board of directors of a municipal utility district may not receive compensation therefor in the form of a per diem. TRD-9452016 LO-94-73 (ID-27283). Request from Dennis R. Jones, Commissioner, Texas Department of Mental Health and Mental Retardation, P.O. Box 12668, Austin, Texas 72668, concerning representation of a state-employed physician who fills a petition under Health and Safety Code, sec.574.104, to administer psychoactive medications. Summary of Opinion. The Mental Health Code, sec.571.016, requires a county or district attorney to represent a state-employed physician who petitions a court with probate jurisdiction to issue an order under section 574.106 of the Mental Health Code permitting the involuntary administration of psychoactive drugs to a patient subject to a court order for inpatient mental health services. TRD-9452017 LO-94-74 (ID-28423). Request from Mike Head, First Assistant District Attorney, Henderson County Courthouse, Athens, Texas 75751, concerning whether the Government Code, sec.601.002, empowers a first assistant district attorney to perform the duties of a district attorney who has resigned. Summary of Opinion. The Government Code, sec.601.002(a), provides that upon the resignation of the district attorney, the powers and duties of his office devolve upon the first assistant or chief deputy district attorney, if there is one, until a successor qualifies for the office. TRD-9452018 LO-94-75 (ID-30083). Request from Honorable Ronald Kirk, Secretary of State, P.O. Box 12697, Austin, Texas 78711-2697, concerning proper construction of Attorney General Opinion JM- 998 (1988). Summary of Opinion. Attorney General Opinion JM-998 (1988) held that the secretary of state is not empowered under Election Code, sec.65.009, to promulgate rules in the form of guidelines, directing the manner in which an ambiguous or imperfctly marked ballot is to be counted. However, nothing in Attorney General Opinion JM-998 (1988) precludes the secretary of state from issuing an advisory election law opinion pursuant to Election Code, sec.31.004, advising on the proper interpretation of Election Code provisions, including the Election Code, sec.65.009. Thus, Attorney General Opinion JM-998 (1988) does not preclude the secretary of state from issuing an election law opinion suggesting factors that an election law judge may consider in determining whether the intent of the voter is "clearly ascertainable." TRD-9452019 Open Records Decision ORD-630 (RQ-557). Request from E. T. Gibson, City Manager, City of Gonzales, P.O. Drawer 547, Gonzales, Texas 78629, concerning whether the mere fact that information is within the attorney-client privilege and thus would be excepted from disclosure under the Texas Open Records Act, sec.552.107(1), Government Code, Chapter 552, constitutes a compelling reason for withholding the information where the governmental body has failed to request an open records decision within ten days. Summary of Decision. When a governmental body fails to request an open records decision within ten days of receiving a request for information under the Open Records Act, Government Code, Chapter 552, the requested information is presumed public. In order to overcome this presumption, a governmental body must provide a compelling reason as to why the information should not be disclosed. The mere fact that the information is within the attorney-client privilege and thus would be excepted from disclosure under the Open Records Act, sec.552.107(1) if the governmental body had made a timely request for an open records decision does not alone constitute a compelling reason to withhold the information from public disclosure. TRD-9452015