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-94-76 (ID#-25125). Request from Dr. James Corbin, Chair, Texas Antiquities Committee, P.O. Box 12276, Austin, Texas 78711-2276, concerning whether planned unit developments are "political subdivisions" for purposes of the Antiquities Code of Texas, Natural Resource Code, Chapter 191, and related questions. Summary of Opinion. A "planned unit development district," as that term is used in sec.42.046 and sec.42.047 of the Local Government Code, is not a "political subdivision" for purposes of the Antiquities Code, Natural Resource Code, Chapter 191. Land which will belong to a municipal utility district after the municipal utility district is created is not land belonging to a political subdivision for purposes of the Antiquities Code. A municipal utility district is created after a confirmation election has been held determining that the proposed district shall be established, see Water Code sec.sec.54.025-54.029, and becomes a political subdivision for purposes of the Antiquities the land in a municipal utility district that belongs to the municipal utility district (or the state or some other political subdivision) is subject to the Antiquities Code as public land. TRD-9452511 LO-94-77 (ID#-26175). Request from Jose R. Rodriguez, County Attorney, El Paso County Courthouse, 500 East San Antonio, Room 203, El Paso, Texas 79901, concerning whether a public school teacher may also serve as a constable. Summary of Opinion. Neither Article XVI, Section 40, of the Texas Constitution, nor the common-law doctrine of incompatibility prevents a teacher employed by the El Paso Independent School District from at the same time holding a position as an elected constable for Precinct 7, El Paso County, Texas. TRD-9452512 LO-94-78 (ID#-26393). Request from Honorable Robert Earley, Chair,G Committee on Energy Resources, Texas House of Representatives, P.O. Box 2910 Austin, Texas 78768-2910, concerning whether a municipality may provide lighting on private streets. Summary of Opinion. Article XI, sec.3 of the Texas Constitution requires that expenditures by a city be for a public purpose. The decision as to whether a public purpose is being served rests within the discretion of the city, subject to judicial review. The mere desire to treat private property in substantially the same fashion as public property is not a public purpose. Whether, in the particular case, an expenditure to light a city's right of way on private streets serves a public purpose and the owners of the streets are mere incidental beneficiaries of the expenditure requires factual determinations of a sort which cannot be addressed in the opinion process; it would however be prudent for the city in exercising its discretion in this matter to consider such questions. TRD-9452513 LO-94-79 (ID#-26416). Request from Honorable Jaime Esparza, District Attorney, 34th Judicial District, 201 County Building, El Paso, Texas 79901, concerning whether the El Paso County Attorney may pay a "processing fee" to the district attorney for services rendered in connection with the collection of "hot check" charges. Summary of Opinion. Pursuant to a contractual agreement, the County Attorney of El Paso County may pay a "processing fee" to the district attorney for services rendered in furtherance of the collection of "hot check" charges without violating the Code of Criminal Procedure, Article 102.007. TRD-9452514 LO-94-80 (ID#-27929). Request from Kenneth H. Ashworth, Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas 78711, concerning whether an individual may "be employed simultaneously in a full-time faculty position at both a public junior college and a state university without violating the state constitution or other state law". Summary of Opinion. There is no constitutional, statutory, or common-law impediment to an individual's simultaneously holding full-time teaching positions at both a state university and a public junior college. TRD-9452515 LO-94-81 (RQ-631). Request from Honorable Tom Craddick, Chair, House Committee on Ways and Means, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a nonprofit organization may inspect, clean, and repair used eyeglasses to be donated to people who are unable to afford them. Summary of Opinion. Neither the Texas Optometry Act nor the Opticians' Registry Act precludes a nonprofit organization from inspecting, cleaning, and repairing used eyeglasses to be donated to people who are unable to afford them. TRD-9452516 LO-94-82 (ID#-24862). Request from Honorable David W. Wallace, Sutton County Attorney, P.O. Box 1508, Sonora, Texas 76950-1508, concerning whether the commissioners court may reduce the salaries the district and county clerk and clerk's deputies receive and related question. Summary of Opinion. The Sutton County Commissioners Court may not reduce the salary of the district and county clerk until the next regular budget hearing. It may, however, reduce the salaries of the district and county clerk's deputies at any time during the fiscal year. The commissioners court may not set the hours that the office of the district and county clerk's office must be open. TRD-9452517 LO-94-83 (ID#-24908). Request from Honorable Tim Cole, District Attorney, Montague County Courthouse, P.O. Box 55 Montague, Texas 76251, concerning whether a district attorney's office may accept a contribution from a nonprofit organization for the purpose of enhancing prosecution programs and related question. Summary of Opinion. Pursuant to sec.41.108 of the Government Code, only a county commissioners court is authorized to accept a contribution for the purpose of financing adequate and effective prosecution programs in the county or district. Upon receipt by the county, the contribution becomes county money; thus, to the extent that it will not contravene any valid conditions placed upon the contribution (to which the county has agreed) and to the extent that the money finances adequate and effective prosecution programs in the county or district, the commissioners court has discretion to determine how to use it. The contribution is subject to the county's ordinary budget process. TRD-9452518 LO-94-84 (ID#-25904). Request from Honorable James L. Anderson, Jr., Aransas County Attorney, 301 North Live Oak Street, Rockport, Texas 78382, concerning whether a sheriff may collect a fee for researching an individual's criminal history records and certifying the results of the search. Summary of Opinion. The commissioners court may set a reasonable fee pursuant to sec.118.131 of the Local Government Code to be charged by the sheriff for researching an individual's criminal history records and certifying the result of the search. The amount of the fee is to be determined by the commissioners court in the exercise of good faith discretion. TRD-9452519 LO-94-85 (ID#-26152). Request from Honorable Mike Driscoll, Harris County District Attorney, 1001 Preston, Suite 634 Houston, Texas 77002-1891, concerning whether the district clerk may file an abstract of judgment for nonpayment of costs. Summary of Opinion. Absent a judgment in behalf of the district clerk in a civil action in which he is a party, the district clerk may not file an abstract of judgment in the real property records for nonpayment of costs. The district clerk's remedy for such nonpayment is that prescribed by rules 129 and 130 of the Texas Rules of Civil Procedure. TRD-9452520 LO-94-86 (ID#-26966). Request from Honorable Allen Hightower, Chair, Committee on Corrections, Texas House of Representatives, P.O. Box 2910 Austin, Texas 78768-2910, concerning application of Health and Safety Code, sec.365.012, which prohibits the dumping of litter or other solid waste. Summary of Opinion. All that is required to commit an offense under sec.365.012(b) of the Health and Safety Code is the receipt of litter or other solid waste for dumping at an unauthorized place. Ownership and/or control of the litter and/or land are irrelevant. TRD-9452521 Opinions DM-305 (RQ-638). Request from Nora A. Linares, Executive Director, Texas Lottery Commission P.O. Box 16630, Austin, Texas 78761-6630, concerning Texas Civil Statutes, Article 179d, sec.11(u), the Bingo Enabling Act, contravenes the Americans with Disabilities Act, 42 United States Code Chapter 126. Summary of Opinion. A device which uses a keypad and an electronic memory to aid a player in the game of bingo is a "computerized or electronic device" forbidden by Texas Civil Statutes, Article 179d, sec.11(u). Whether such a device, if used as an auxiliary aid by a handicapped person in order to permit such a person the nondiscriminatory treatment mandated by the Americans with Disabilities Act, would "fundamentally alter" the game of bingo, is a question of fact that must be determined by the Texas Lottery Commission (the "commission"). Whether there may be alternative aids or services available to such a handicapped person which would not violate Article 179d, sec.11(u), must also be determined by the commission. Were such a device made available for the limited purpose described here, Equal Employment Opportunity Commission regulations would prohibit the imposition of a surcharge for its use. TRD-9452506 DM-306 (RQ-583). Honorable Fred Hill, Chair Committee on Urban Affairs, Texas House of Representatives, Austin, Texas 78768-2910, concerning whether the members of the City of Dallas Planning and Zoning Commission are "local public officials" under the Local Government Code, Chapter 171 and related questions. Summary of Opinion. A member of the City of Dallas Planning and Zoning Commission (the "commission") is a"local public official" subject to the requirements the Local Government Code, Chapter 171. Section 171.004(a)(1) extends to an action of the commission that will have a special economic effect on a business entity that represents an entity or person with an interest in a matter before the commission. TRD-9452507 DM-307 (RQ-619). Honorable Rick Perry Commissioner, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711-2847, concerning whether there is a gallonage limit on sales by a winery permit holder under subsection (d), the Alcoholic Beverage Code, sec.16.01. Summary of Opinion. There is no gallonage limit on sales, for either on- or off-premises consumption, by a winery permit holder under subsection (d) of the Alcoholic Beverage Code, sec.16.01. TRD-9452508 DM-308 (RQ-695). Honorable Walt Sears, Jr., Franklin County Attorney, P.O. Box 374, Mount Vernon, Texas 75457, concerning whether House Bill 859, Acts 1992, 73d Legislature, Chapter 473 (now codified at Texas Civil Statutes, Article 1446h), which requires a public utility to keep portion of its customer records confidential under certain circumstances, is applicable to the Franklin County Water District. Summary of Opinion. The Franklin County Water District is subject to the requirements of House Bill 859, Acts 1993, 73rd Legislature, Chapter 473 (now codified at Texas Civil Statutes, Article 1446h), because it permits persons who own land adjacent to Lake Cypress Springs to remove water for an annual fee of $25. Construing House Bill 856 to encompass the Franklin County Water District is consistent with the plain meaning of the statutory language and with thepurpose of the bill. House Bill 856 does not itself impose any criminal penalties for violating its provisions. However, an entity that violates House Bill 859 may be subject to criminal penalties under the Open Records Act, sec.552.352 of the Government Code. TRD-9452509 DM-309 (RQ-689). Honorable Merrill L. Hartman, Chair Court Reporters Certification Board, P.O. Box 13131, Austin, Texas 78711-3131 concerning whether rule 166c of the Texas Rules of Civil Procedure and Government Code, sec.52.021(f) the conflict. Summary ofOpinion. To the extent that rule 166c of the Texas Rules of Civil Procedure permits parties to stipulate that a deposition upon oral examination be taken by a person other than a certified shorthand reporter, it must yield to the requirement of subsection (f) the Government Code, sec.52.021 that a deposition upon oral examination must be taken by a certified shorthand reporter. TRD-9452510 Requests for Opinions (RQ-760). Request from Mary E. Cox, Anderson County Auditor, P.O. Box 1158, Palestine, Texas 75802, concerning whether a commissioners court may reimburse a county judge for legal fees incurred by the county judge in defending himself against criminal charges and related question. (RQ-761). Request from Honorable David Brabham, Gregg County Criminal District Attorney, 101 East Methvin Street, Suite 333, Longview, Texas 75601, concerning whether a municipal court of record must collect certain costs from a juvenile offender who participates in a "teen court" program. (RQ-762). Request from Charles E. Griffith, III, Deputy City Attorney, City of Austin, P.O. Box 1088, Austin, Texas 78767-8828, concerning whether an investigation is "closed" for purposes of sec.552.108 of the Government Code only when all appellate and post-conviction remedies have been exhausted; whether a local law-enforcement agency may withhold investigative materials under sec.552.103 of the Government Code pending prosecution and appellate and post-conviction remedies. (RQ-763). Request from Honorable Kenny Marchant, Chair Committee on Investments and Banking, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768- 2910, concerning whether Chapter 47, Penal Code, which regulates gambling activities, permits an on-line computer service to charge a fee for facilitating card games played, via modem, for money or other things of value by subscribers to the service TRD-9452523