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 Opinion LO-95-078 (RQ-679). Request from Honorable William R. Ratliff, Chair, Committee on Education, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning whether and how a private road may become a part of the public domain after long and continuous use by the public. Summary of Opinion. A private road may become a part of the public domain after long and continuous usage by the public. The public's right of highway by prescriptive easement ripens after ten years of continuous and uninterrupted public use that is adverse and exclusive and that is open and notorious or known to the owner of the servient tenement and acquiesced in by him or her. An easement by necessity is an easement by implied grant and thus is not adverse and cannot ripen into a prescriptive easement even after continuous use of such an easement for more than ten years. Since August 31, 1981, the effective date of former Texas Civil Statutes, Article 6812h, now nonsubstantively recodified as Transportation Code, Chapter 281, a public roadway easement by prescription may not arise in a county of 50, 000 or fewer persons until it is declared in a final judgment in a court of competent jurisdiction. For an easement ripening before that date, there is no legal requirement that any county obtain a judicial declaration of a public road by adverse possession before the county may spend public funds to maintain the roadway, and the public's right of highway based on prescription before that date is not dependent on the county's recognition of the road as a public highway. TRD-9516321 Open Records Decisions ORD-635 (RQ-720). Requests from Honorable Carole Keeton Rylander, Chair, Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967, concerning whether by public officers or employees constitute public information subject to the Texas Open Records Act and related questions. Summary of Decisions. An appointment calendar purchased by a public official or employee with private funds is information subject to the Open Records Act when another public employee maintains the calendar as part of his or her job. Under these circumstances, the calendar cannot be considered a handwritten note in the sole possession of a public official or employee and made by that public official or employee for his or her own personal use. Furthermore, information, including not fall outside the definition of public information in the Open Records Act merely because an individual member of a governmental body possesses the information rather than the governmental body as a whole. The appointment calendar maintained by an employee for a public official is subject to the Open Records Act in its entirety, including the entries regarding personal appointments and activities. Common-law privacy may except from disclosure some medical infomation that may be found in the requested appointment calendar. To be excepted from disclosure by common-law privacy, medical information must contain highly intimate or embarrassing facts about a person's private affairs such that its release would be highly objectionable to a reasonable person and be of no legitimate public interest. The determination of whether particular information is excepted from disclosure by common-law privacy must be made on a case-by-case basis. Under the facts stated in this decision, the appointment calendar purchased by a Railroad Commission of Texas employee with personal funds, that has been solely maintained and used by the employee, and that primarily contains personal appointments, is not public information subject to the Open Records Act even though some commission-related entries may be included in it. TRD-9516353 ORD-636 (ORQ-1). Request from G. Todd Stewart, Olson & Olson, Three Allen Center, Suite 3485, 333 Clay Street, Houston, Texas 77002, concerning whether numbers called by individuals with specific law enforcement responsibilities on cellular telephones provided to the individuals by a governmental body are subject to disclosure under the Government Code, Chapter 552. Summary of Decisions. The Government Code, sec.552.108 may protect from disclosure the numbers called on cellular telephones provided by a governmental body to individuals with specific law enforcement responsibilities. To establish the sec.552.108 exception to the numbers called, a governmental body must mark the numbers it claims are excepted and detail how release of the information would endanger a confidential informant or unduly interfere with law enforcement. A governmental body must withhold the home telephone numbers of peace officers and current or former government employees who have requested that this information be kept confidential under the Government Code, sec.552.024. TRD-9516352 Opinion DM-367 (RQ-794). Request from Honorable Fred Hill, Chair, Committee on Urban Affairs, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning constitutionality of the statute that permits local authorities to authorize persons to stand in roadways to solicit certain charitable contributions but not other contributions. Summary of Opinion. The 1989 amendment to what then was sec.81(c) of Texas Civil Statutes, Article 6701d and now is Transportation Code, sec.552.007(a) (the "amendment"), which amendment permits local authorities to authorize persons to stand in roadways to solicit certain charitable contributions but prohibits solicitation of other contributions, Act of May 18, 1989, 71st Legislature, Regular Session, Chapter 342, 1989 Texas General Laws 1310, establishes a content-based speech restriction. The amendment therefore is not valid under the First and Fourteenth Amendments of the Constitution unless the provision's discrimination against all solicitation other than certain charitable solicitation is narrowly drawn and necessary to serve a compelling state interest. TRD-9516322 Requests for Opinions (ID-#36001). Request from Tonya S. Davis, Cooke County Attorney, Cooke County Attorney's Office, Third Floor, Courthouse, Gainesville, Texas 76240, concerning authority of a private security officer to detain or arrest an individual who commits a criminal offense in his presence. (ID-#36631). Request from Honorable Ben W. "Bud" Childers, County Attorney, Fort Bend County, 309 South Fourth Street, Suite 621, Richmond, Texas 77469, concerning whether a commissioners court may provide for themselves gasoline and repairs to their personal vehicles in addition to a monthly travel allowance. (ID-#36860). Request from Charles Kuratko, Chair, State Board of Examiners for Speech-Language Pathology Audiology, 1100 West 49th Street, Austin, Texas 78756- 3183, concerning whether Article 4566-1.16A, which requires a business entity that is "engaged in the fitting and dispensing of hearing instruments" to file a bond, surety in lieu of bond, cash deposit, or other negotiable security, is applicable to a person who practices audiology pursuant to Texas Civil Statutes, Article 4512j. (ID-#36957). Request from Honorable Pete Gallego, Chair, Committee on General Investigating, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether the holder of a special parking permit for the disabled is entitled to free parking at airport lots and garages. TRD-9516320