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. To request copies of opinions, phone (512) 462-0011. To inquire about pending requests for opinions, phone (512) 463-2110. Letter Opinions LO-95-045 (ID #31186). Request from Honorable Pete P. Gallego, Chair, Committee on General Investigating, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a microwave oven in commercial food vending service must be surveyed every six months and related questions. Summary of Opinion. Generally, the Health and Safety Code, Chapter 401 of title 25 of the Texas Administrative Code, and the Texas Regulations for the Control of Radio- Frequency Electromagnetic Radiation (the "regulations"), see 2 Texas Register 3668 (1977) (Department of Health), apply to a microwave oven used in commercial food vending service. The regulations do not supersede either the Health and Safety Code, Chapter 401 or title 25, Texas Administrative Code, sec.289.6. The regulations, incorporated into title 25 of the Texas Administrative Code, sec.289.6, implement the legislative directives expressed in Chapter 401 of the Health and Safety Code. The regulations do not apply to a microwave oven in commercial food vending service if the oven is an installation of a department or agency of the United States. On the other hand, the regulations do not exempt a microwave oven in commercial food vending service if the oven is an installation of a city, a county, or the state. A microwave oven in commercial food vending service that is an installation of a city, county, or the state also is subject to those regulations specifically applicable to microwave ovens in commercial food vending service. Except for the survey and sanitation requirements, all microwave ovens that exceed the accessible emission levels specified in table 90-1 of the regulations must comply with the standards articulated in part 90 of the regulations. Only such a microwave oven in commercial food vending service must be surveyed every six months, in accordance with paragraph 90.5(e). The term "commercial food vending service" denotes a microwave oven associated with the sale of food, such as a microwave oven provided by the retailer. Furthermore, a microwave oven is in commercial food vending service only if it is for public use. Generally, a microwave oven installed in a hotel or motel room is not provided in association with the sale of food or beverages, either in the room or elsewhere in the hotel or motel, that need to be heated; therefore, such a microwave oven generally is not in commercial food vending service. Additionally, a microwave oven provided in an apartment is not for the use of the general public and thus is not a microwave oven in commercial food vending service. While a microwave oven installed in a hotel, motel, or apartment unit ordinarily is not subject to those regulations specific to microwave ovens in commercial food vending service, it is subject to the standards applicable to microwave ovens generally, unless the microwave oven is not subject to part 90. Applicability of the regulations is not premised on the type of business in which the microwave oven is installed, but rather initially on the microwave oven's accessible emission levels and then on the way in which the microwave oven is used. Pursuant to paragraph 90.5(e) of the regulations, the user of a microwave oven that produces an accessible emission level exceeding the levels listed in table 90-1 of the regulations and that is used in commercial food vending service must survey the microwave oven every six months. Any microwave oven that produces an accessible emission level exceeding the same levels, including such a microwave in a commercial setting or commercial food vending service, must comply with the caution signs, symbols, labels, and posting requirements set forth in paragraph 90.4. Section 401.063 of the Health and Safety Code authorizes the Department of Health to inspect any nonfederal premises to ascertain whether a user of a microwave oven is in compliance with Chapter 401 of the Health and Safety Code or the department's rules, licenses, registrations, and orders issued pursuant to Chapter 401. TRD-9512199 Open Records Decisions (ORD-633) (RQ-672). Earl Bracken, Jr., City Attorney, City of Waco, P.O. Box 2570, Waco, Texas 76702-2570, concerning whether the Texas Open Records Act permits a governmental body to require a requestor to accept one record as a substitute for another; whether the act permits a governmental body to charge a requestor for costs incurred in redacting information that falls within any of the act's nonmandatory exceptions to required public disclosure. Summary of Decisions. The City of Waco does not comply with the Open Records Act by releasing to a requestor of police narrative reports a "Major Incident Form" as a substitute for any report portions that are not excepted from required public disclosure, unless the requestor agrees to the substitution. In addition, the Open Records Act does not permit the City of Waco to charge the requestor for costs incurred in redacting from the requested narrative reports information that falls within any of the Open Records Act's nonmandatory exceptions to required public disclosure. TRD-9512200 Opinions DM-360 (RQ-701). Barry Williamson, Chair, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967, concerning whether the Texas Railroad Commission is required to pay certain fees requested by county clerks. Summary of Opinion. Local Government Code, sec.154.004(b) does not preclude the Texas Railroad Commission from paying a real property records filing fee pursuant to Local Government Code, sec.118.011(a)(2) and 118.013(a), a records management and preservation fee pursuant to Local Government Code, sec.118.011(b)(2) and sec.118.0216, or a courthouse security fee under Local Government Code sec.291.007(d) when filing notices required by sec.89.043(e) of the Natural Resources Code. TRD-9512203 DM-363 (RQ-821). Honorable Rodney Ellis, Chair, Intergovernmental Relations, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning whether the recently enacted concealed handgun law, Senate Bill 60, particularly the provision to be codified as Texas Civil Statutes, Article 4413(29ee), sec.32, permits a business owner or operator to post notices prohibiting license holders carrying concealed handguns from the premises of the business, and related questions. Summary of Opinion. Section 46.03 of the Penal Code, as amended by Senate Bill 60, prohibits the carrying of a concealed handgun on the physical premises of a school, an educational institution, or a passenger transportation vehicle of a school or an educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution; on the premises of a polling place on the day of an election or while early voting is in progress; in any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court; on the premises of a racetrack; or into a secured area of an airport. Section 46.035 to the Penal Code, as added by Senate Bill 60, prohibits a person from intentionally, knowingly, or recklessly carrying a handgun under the authority of Article 4413(29ee): on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, or 69 of the Alcoholic Beverage Code, if the business derives 51% or more of its income from the sale of alcoholic beverages for on-premises consumption; on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event; on the premises of a correctional facility; on the premises of a hospital licensed under Chapter 241 of the Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242 of the Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home, as appropriate; in an amusement park; on the premises of a church, synagogue, or other established place of religious worship; or at any meeting of a governmental entity. While sec.46.035 prohibits the carrying of a handgun at the foregoing places, it does not prohibit the carrying of a handgun in the driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area of a business that sells alcoholic beverages, a high school, collegiate, or professional sporting event or interscholastic event, correctional facility, hospital or nursing home, amusement park, or church, synagogue, or other established place or religious worship. Senate Bill 60 does not preclude private property owners from excluding license holders carrying concealed handguns from their premises under the criminal trespass statute, Penal Code, sec.30.05. A license holder who enters or remains on property or in a building of another carrying a concealed handgun without effective consent to carry and who has had notice that concealed handguns are prohibited commits a criminal offense. TRD-9512202 DM-364 (RQ-828). Honorable Ron Wilson, Chair, Licensing and Administrative Procedures, House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a rapid transit authority established under Texas Civil Statutes, Article 1118x (to be recodified as Transportation Code, Chapter 451) may prohibit a concealed handgun licensee from carrying a concealed handgun on a public conveyance operated by the rapid transit authority; whether a city or county may prohibit a concealed handgun licensee from carrying a concealed handgun in a city or county park. Summary of Opinion. Texas Civil Statutes, Article 4413(29ee), sec.32 does not affect the power, if any, of a rapid transit authority to prohibit the carrying of handguns on its vehicles by persons other than employees of the rapid transit authority. A rapid transit authority may invoke the police power delegated to it in Texas Civil Statutes, Article 1118x, sec.13 to abridge the right of a citizen to use his private property if the use will endanger public safety in the rapid transit system. The reasonableness and necessity of a measure taken under the rapid transit authority's police power is, in the first instance, a matter within the authority's discretion. The courts would not disturb a rapid transit authority's regulation of handguns on public conveyances unless the regulation were clearly shown to be unreasonable and arbitrary. The legislature, in the concealed handgun law, has specifically taken away from a municipality the authority to prohibit the licensed carrying of concealed handguns in a city or county park. See Act of May 16, 1995, 74th Legislative, Regular Session, Chapter 229, sec.7, 1995 Texas Session Law Service 1998, 2014-15. A county has the power to adopt a rule providing for the exclusion or ejection of persons carrying handguns from county parks if such a rule is reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the county's police power under sec.331.007 of the Local Government Code. The reasonableness and necessity of a measure taken under the county's police power is, in the first instance, a matter within the county's discretion. The courts would not disturb a county's regulation of handguns in county parks unless the regulation were clearly shown to be unreasonable and arbitrary. TRD-9512201 Requests for Opinions (RQ-839). Request from Honorable Chris Harris, Chair, Administration, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, regarding authority of the Texas Education Agency with regard to driver education courses and driver safety courses. (RQ-840). Request from Honorable John B. Holmes, Jr., District Attorney, District Attorney's Building, 201 Fannin, Suite 200, Houston, Texas 77002-1901, regarding whether the Harris County Committee of District and Statutory County Court Judges is subject to the Open Meetings Act when it meets to participate in the management of the Harris County Community Supervision and Corrections Department. (RQ-841). Request from David R. Smith, M.D., Commissioner, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199, regarding whether the Texas Hazard Communication Act, Health and Safety Code, Chapter 502, which provides "employees" with accessibility to certain information regarding hazardous chemicals at work sites, is applicable to inmates of the Texas Department of Criminal Justice. (RQ-842). Request from Honorable David Sibley, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, regarding whether the Texas Racing Commission may permit simulcasting at Class 3 and Class 4 racetracks. (RQ-846). Request from Mike Moses, Commissioner of Education, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701-1494, regarding construction of the term "school bus" for purposes of Senate Bill 1, Acts 1995, 74th Legislature, Chapter 260, at 2207, et seq, and related questions. TRD-9512086