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-96-012 (ID# 38374).
 The Honorable Mark W. Stiles, Chair, Calendars Committee, Texas House of 
Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning disposition 
of property seized by a sheriff and forfeited
under Code of Criminal Procedure, Chapter 59.
Summary of Opinion.
When there exists a "local agreement" between a prosecutor and a sheriff 
pursuant to the terms of the Code of Criminal Procedure, Chapter 59 the sheriff, 
so long as the procedural requirements of that chapter have been followed, may 
take title to a building seized as contraband under that chapter. The sheriff 
may use the proceeds from the sale of property seized as contraband thereunder 
to purchase a building, provided he first submits a detailed list of 
expenditures to the commissioners court, and subject to the commissioners 
court's requirement, if exercised, that he deposit not more than ten percent of 
those proceeds in the county treasury for use on behalf of the chemical 
dependency programs described in subsection (h) of Article 59.06.
LO-96-013 (ID# 30971).
 Rita Horwitz, Executive Director, State Pension Review Board, P.O. Box 13498, 
Austin, Texas 78711-3498, concerning whether the state treasury is prohibited by 
statute or constitutional provision from purchasing any security priced above 
market value and whether the state is prohibited from guaranteeing the 
investments of other governmental subdivisions.
Summary of Opinion.
The state treasurer's use of funds in the state treasury in December 1994 to 
purchase TexPool funds at a price above market value was not authorized by law.
LO-96-014 (ID# 38543).
 The Honorable Toby Goodman, Chair, Committee on Juvenile Justice, and Family 
Issues, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, 
concerning status of the mayor and a council member of the City of Fort Worth 
who have resigned to run for another office.
Summary of Opinion.
Under the terms of the charter, a council member of the city of Fort Worth 
immediately vacates his office as soon as he or she "becomes a candidate" for 
another office, but Texas Constitution, Article XVI, sec.17, Texas Constitution, 
deems the council member to "hold over" until his or her successor "shall be 
duly qualified," that is, subsequent to a special election as provided in the 
charter. The charter also provides that, pending a special election, a vacancy 
in the office of mayor shall be immediately filled by the mayor pro tem. Thus, 
the mayor holds over only until the mayor pro tem has qualified for the office 
of mayor.
LO-96-015 (ID# 36858).
 Mike Moses, Commissioner of Education, Texas Education Agency, 1701 North 
Congress Avenue, Austin, Texas 78701-1494, concerning whether the Government 
Code, Chapter 573 prohibits a school district from hiring a former employee who 
is related to a school board member within a prohibited degree if the former 
employee had been continuously employed by the school district at the time of 
the school board member's election.
Summary of Opinion.
A former employee of a school district, who is related to a school board member 
within a prohibited degree and had been continuously employed by the school 
district at the time of the school board member's election, is not exempt from 
nepotism prohibitions by virtue of Government Code, sec.573.062.
LO-96-016 (ID# 36005).
 Kenneth H. Ashworth, Commissioner, Texas Higher Education Coordinating Board, 
P.O. Box 12788, Austin, Texas 78711, concerning notice requirements for a single 
institution of higher education under the Open Meetings Act, Government Code, 
Chapter 551.
Summary of Opinion.
The meetings of a junior college district board of trustees are not subject to 
the notice requirement in the Government Code, sec.551.055.
LO-96-017 (ID# 35084).
 The Honorable Thomas E. White, Hamilton County Attorney, P. O. Box 831, 
Hamilton, Texas 76531, concerning whether a commissioners court may determine 
what foods are served in the county jail.
Summary of Opinion.
The sheriff of a county has the authority under the Local Government Code, 
sec.351.041 to supervise and control the county jail, including the authority to 
determine which items shall be included in, or excluded from, food service to 
the inmates. The commissioners court of the county does not have the authority 
to interfere with the sheriff's selection of food items for the jail food 
service except to the extent that such interference is necessary to ensure that 
"food [is] prepared and served in a palatable and sanitary manner according to 
good dietary practices and of sufficient quality to maintain good health," Local 
Government Code,  sec.351.010.
LO-96-018 (ID# 35854).
 The Honorable Rene Guerra, Criminal District Attorney, Hidalgo County, Hidalgo 
County Courthouse, Edinburg, Texas 78539, concerning whether a hearing examiner 
may close a civil service hearing to the public.
Summary of Opinion.
The Local Government Code, sec.143.010(c) and sec.143.057(f) require a hearing 
examiner to hold a civil service disciplinary appeal hearing in public.
LO-96-019 (ID# 33627).
 The Honorable Jack Skeen, Jr., Criminal District Attorney, Smith County, Smith 
County Courthouse, Tyler, Texas 75702, concerning whether a person who operates 
as a bail bond licensee in an individual capacity may, in addition, be licensed 
as an agent for a corporate surety.
Summary of Opinion.
A bail bond board may license a corporate surety to operate through a designated 
agent who is individually licensed to execute bail bonds. Texas Civil Statutes, 
Article 2372p-3 does not prohibit an individually licensed bail bondsman from 
operating as a designated agent of a licensed corporate surety in the same place 
of business and using the same telephone numbers, same employees, and same 
advertising as the designated agent uses in operating as an individually 
licensed bail bondsman. When a corporate surety applies for a license for a 
designated agent who is an individually licensed bail bondsman, Article 2372p-3 
does not require the designated agent to complete a personal financial statement 
as part of the application, nor does the statute require a county bail bond 
board to consider the designated agent's solvency in evaluating the corporate 
surety's application.
LO-96-020 (ID# 31535).
 The Honorable Romero Molina, Starr County Attorney, P.O. Box 1198, Rio Grande 
City, Texas 78582, concerning whether a county clerk may refuse to record a 
warranty deed or other conveyance of real estate that is described by reference 
to a subdivision the plat for which has not been approved or recorded as 
required.
Summary of Opinion.
A county clerk may not refuse to record a deed presented for filing which  meets 
the acknowledgment, signature, and other requirements of Property Code 
sec.12.001 unless so ordered by a court, even if the deed is determined to 
violate sec.12.002(c), Property Code by referring to a subdivision for which 
there has not been a plat approved and recorded, or the requirements of the 
Local Government Code, Chapter 232, subchapter B, with respect to subdivisions 
in "affected counties."
TRD-9603948
LO-96-021 (ID# 3601).
 Request from the Honorable Tanya S. Davis, Cooke County Attorney, Cooke County 
Attorney's Office, Courthouse, Third Floor, Gainesville, Texas 76240, concerning 
authority of a private security guard to detain or arrest an individual who 
commits a criminal offense in his presence.
Summary of Opinion.
A private security guard is not a peace officer, and therefore has no greater 
powers of arrest than any private citizen.
LO-96-022 (ID# 35270).
 Request from the Honorable James Warren Smith, Jr., County Attorney, Frio 
County, P.O. Box V, Pearsall, Texas 78061-1138, concerning whether a former 
member of a school district board of trustees who resigned prior to the 
effective date of section 11.063 of the Education Code is eligible for 
employment as a teacher in that district.
Summary of Opinion.
The one-year prohibition in Education Code section 11.063 against a former 
school district trustee's employment with that former trustee's school district 
applies only to a person who is a trustee and becomes a former trustee on or 
after the section's effective date, May 27, 1995.
LO-96-023 (ID# 35721).
 Request from Honorable Ben W. "Bud" Childers, Fort Bend County County Attorney, 
309 South Fourth Street, Suite 621, Richmond, Texas 77469, concerning investment 
of county funds governed by Local Government Code, Chapter 117, and related 
questions.
Summary of Opinion.
Funds deposited in the court pending the result of a legal proceeding are trust 
funds that must be placed in the depository and handled in compliance with the 
Local Government Code, Chapter 117. Since the trust funds neither belong to the 
county nor are controlled by the commissioners court, they are not subject to 
investment pursuant to the Government Code, Chapter 2256. In 1995, the Seventh-
fourth Legislature repealed a 1993 amendment to the Public Funds Investment Act 
that authorized the county tax assessor-collector to use electronic means to 
transfer or invest ad valorem taxes collected on behalf of the county.
LO-96-024 (ID# 36386).
 Request from Nora A. Linares, Executive Director, Texas Lottery Commission, 
P.O. Box 16630, Austin, Texas 78761-6630, concerning whether, under the Bingo 
Enabling Act, sec.11a(a), Texas Civil Statutes, Article 179d, a licensed 
commercial lessor may charge a licensed authorized organization that subleases 
the leased premises $600 per day or $600 per day on which a bingo occasion 
occurs.
Summary of Opinion.
The Bingo Enabling Act, sec.11a(a), Texas Civil Statutes, Article 179d, 
authorizes a licensed authorized commercial lessor to charge rent, in an amount 
not to exceed $600 for each day of the sublease term on which a bingo occasion 
is conducted on the property, of a licensed authorized organization that 
subleases the premises to other licensed authorized organizations to conduct 
bingo.
LO-96-025 (ID# 36828).
 The Honorable Kenny Marchant, Chair, Committee on Financial Institutions, Texas 
House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning 
whether Texas Civil Statutes, Article 5069-1.12 prohibits the imposition of a 
surcharge on the use of a credit card to pay membership dues or to make 
contributions to a place of worship where no sale of goods or services is 
involved.
Summary of Opinion.
Texas Civil Statutes, Article 5069-1.12, does not prohibit the imposition of a 
surcharge on the use of a credit card to pay membership dues or to make 
contributions to a place of worship where no sale of goods or services is 
involved.
LO-96-026 (ID# 38663).
 The Honorable Mark W. Stiles, Chair, Calendars Committee, The Texas House of 
Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether, 
pursuant to the Water Code, a petition for the dissolution of a drainage 
district may be withdrawn after being presented to a commissioners court, but 
before the commissioners court have ordered an election on the issue.
Summary of Opinion.
A petition for the dissolution of a drainage district bearing the requisite 
number of taxpayer signatures having been presented to it, a commissioners court 
has no authority to permit the withdrawal of the petition and must call the 
required election under the Water Code, sec.56.292.
LO-96-027 (ID# 36655).
 The Honorable Keith Oakley, Chair, Public Safety Committee, Texas House of 
Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a 
municipality which has not adopted the Fire Fighter and Police Officer Civil 
Service Act is nevertheless subject to Local Government Code, sec.141.033, which 
requires certain municipalities to establish a position classification system 
for fire and police employees, and a related question.
Summary of Opinion.
Local Government Code, sec.141.033 applies to all municipalities with 
populations of 10,000 or more, regardless of whether they have adopted Local 
Government Code Chapter 143. A municipality that has temporarily assigned a fire 
fighter or police officer to perform the duties of a higher classification may 
not restrict the fire fighter's or police officer's entitlement to higher 
classification pay under sec.141.033(b) to an assignment of a certain minimum 
duration.
LO-96-028 (ID# 36631).
 The Honorable Ben W. "Bud" Childers, Fort Bend County Attorney, 309 South 
Fourth Street, Suite 621, Richmond, Texas 77469, concerning whether a 
commissioners court may provide for its members gasoline and repairs to their 
personal vehicles in addition to a monthly travel allowance.
Summary of Opinion.
The total amount of in-kind reimbursement and travel expense allowance a county 
commissioner receives must be reasonably related to official county business. 
The amount of in-kind reimbursement may not exceed the amount of gasoline or 
other fuel used for county business and the amount of wear and tear the 
commissioner's personal vehicle has suffered. The county auditor may require the 
commissioner to document the commissioner's use of gasoline on official county 
business and the amount of wear and tear on the vehicle attributable to travel 
for official county business. Furthermore, the amount of the monetary travel 
expense allowance must be reasonable in relation to expenses actually incurred 
or to be incurred. The commissioners court must take into account, when setting 
the amount of the travel expense allowance, that travel expense allowance may 
not be used to duplicate gasoline expenses and automotive repairs that the 
commissioners receive through in-kind reimbursement. The county auditor may not 
require documentation before releasing the travel allowance to a county 
commissioner.
LO-96-029 (ID# 37961).
 The Honorable Robert Junell, Chair, Committee on Appropriations, Texas House of 
Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether the 
board of directors of the Red Creek Municipal Utility District must call a 
hearing on the exclusion of land from the district pursuant to property owners' 
petitions given that the board does not intend to order a district tax bond 
election and has already held hearings on other property owners' petitions.
Summary of Opinion.
Under Water Code, sec.49.303(b), the board of directors of the Red Creek 
Municipal Utility District must call a hearing on a property owner's petition 
for exclusion of property from the district despite the fact that it does not 
intend to hold a district tax bond election and has already held a hearing on 
other exclusion petitions.
LO-96-030 (ID# 36801).
 The Honorable John T. Montford, Chair, Finance Committee, Texas State Senate, 
P.O. Box 2910, Austin, Texas 78768-2910, concerning whether it is constitutional 
to require a lessor to pay ad valorem taxes on a motor vehicle that the lessor 
leases to a person who uses the vehicle primarily for personal purposes and not 
for the production of income.
Summary of Opinion.
It is very likely that a court would conclude that it is not unconstitutional to 
require a lessor to pay ad valorem taxes on a motor vehicle that the lessor 
leases to a person who uses the vehicle primarily for personal purposes and not 
for the production of income.
LO-96-031 (ID# 37356).
 The Honorable Don Henderson, Chair, Senate Jurisprudence Committee, Texas State 
Senate, P.O. Box 12068, Austin, Texas 78711-2068, concerning whether a constable 
is authorized to collect on a bad check and related questions.
Summary of Opinion.
A constable is not authorized to collect restitution for a bad check. Government 
Code, sec.614. 041 subjects him to a criminal penalty and possible removal for 
doing so. A warrant styled so as to purportedly authorize the practice is 
ineffective to authorize it or to relieve the constable from liability for 
engaging in it.
LO-96-032 (ID# 35191).
 Jack E. Crump, Executive Director, Texas Commission on Jail Standards, P.O. Box 
12985, Austin, Texas 78701, concerning authority of the Commission on Jail 
Standards by rule to make county jail telephone services for inmates part of the 
jail commissary services provided for in Local Government Code, sec.351.0415.
Summary of Opinion.
The Commission on Jail Standards is not authorized to include, by rule, 
telephone service within the commissary services provided for in the Local 
Government Code, sec.351.0415. Nor is the commission authorized to impose by 
rule more specific requirements as to what commissary proceeds may be spent on 
than those set out in sec.351.0415.
LO-96-033 (ID# 34273).
 The Honorable Jack Skeen, Jr., Criminal District Attorney, Smith County 
Courthouse, Tyler, Texas 75702, concerning whether a person may simultaneously 
be employed as an unpaid peace officer and as a community supervision officer.
Summary of Opinion.
Government Code, sec.76.005(c), prohibits a person's simultaneous employment as 
a peace officer, even if uncompensated for that position, and as a community 
supervision officer.
TRD-9604017

Opinions
DM-378 (RQ-846).
Request from Mike Moses, Commissioner of Education, Texas Education Agency, 1701 
North Congress Avenue, Austin, Texas 78701-1494, concerning construction of the 
term "school bus" for purposes of Senate Bill 1, Act of May 27, 1995, 74th 
Legislature, Regular Session, Chapter 260, 1995 Texas Session Law Service 2207 
and related questions.
Summary of Opinion.
Under the Education Code, sec.34.003, school districts may permit the 
transportation of fewer than ten students to and from school and extracurricular 
activities in passenger vehicles which are not subject to the same safety 
standards and driver qualifications as "school buses" as defined by 
Transportation Code, sec.541.201(15)(A) so long as such passenger vehicles do 
not carry more passengers than their design capacity permits and the operator 
ensures that all passengers are wearing safety belts. This "passenger car" 
exception does not apply to vehicles with a larger design capacity than that of 
"passenger cars" as defined by Transportation Code, sec.541.201(12). In 
addition, schools may transport ten or more students to and from extracurricular 
activities in school buses or buses either chartered from motor bus companies or 
owned by the school district which meet the motor bus standards of Title 16 
Texas Administrative Code, sec.sec.5.201-5.249. Operators of private passenger 
vehicles such as parents or teachers are not subject to school bus safety 
standards or licensure requirements when transporting fewer than ten students to 
or from school or extracurricular activities in such a passenger vehicle.
TRD-9603949