ATTORNEY GENERAL
Under provisions set out in the Texas Constitution, the Texas Government Code, 
Title 4,  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.

Request for Opinions

RQ-892. Requested from the Honorable Mike
 Driscoll , Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas
 77002-1891, concerning whether a juvenile board may provide educational 
services
 to juveniles that have not been adjudicated delinquent.


RQ-893. Requested from Dr. David R. Smith
, Commissioner of Health , Texas Department of Health, 1100 West 49th Street,
 Austin, Texas 78756-3199, concerning whether the Texas Department of Health
 is required to issue a supplementary birth certificate in the case of an
 out-of-state adoption by two persons of the same gender.


RQ-894. Requested from Barry R. McBee, 
Chair, Texas Natural Resources Conservation Commission, P.O. Box 13087,
 Austin, Texas 78711-3087, concerning Constitutionality of a federal regulation
 that requires the immediate temporary suspension of a motor vehicle safety
 inspector's license under certain circumstances.


TRD-9609052



Opinions

DM-396 (RQ-809) Request from the Honorable
 Tim Rodgers, Wise County Auditor, P.O. Box 899, Decatur, Texas 76234, 
concerning
 whether a justice of the peace may maintain a checking account, separate
 from the county treasury, into which he or she deposits hot check restitution
and fines and related questions.


Summary of Opinion. The enactment and amendment
 of sec.32.41(e) of the Penal Code overrule the conclusion this office
 reached in Attorney General Opinion MW-222 (1980). Pursuant to sec.32.41(e),
the issuer of a dishonored check may pay restitution "through the court,"
 provided the court in which the offense is filed approves. Of course, the
 county auditor is authorized to oversee the books and records of the justice
 of the peace, including records documenting the justice's separate account
 into which he or she deposits restitution received under sec.32.41(e)
 of the Penal Code. Additionally, a justice of the peace who misapplies
 restitution received under sec.32.41(e) of the Penal Code may be subject
 to a criminal action, e.g., under Penal Code sec.39.02(a)(2), or removed
 from office for official misconduct. 

Section 113.021 and sec.113.022 of the Local Government Code do not apply
 to a justice of the peace who receives restitution on behalf of a dishonored
 check holder pursuant to sec.32.41(e) of the Penal Code. Furthermore,
 sec.112.001 does not authorize a county auditor of a county with a population
 less than 190,000 to regulate the "collecting, checking, and accounting"
 of restitution a justice of the peace receives under sec.32.41(e) of the
 Penal Code. Accordingly, nothing prohibits a justice of the peace in a county
 with fewer than 190,000 residents from depositing restitution received under
 sec.32.41(e) of the Penal Code into a separate account.

 Article 103.004 of the Code of Criminal Procedure, which requires the justice
 of the peace "immediately" to deposit with the county treasurer fines he
 or she collects, does not permit a justice of the peace first to deposit
 fines into a separate checking account and subsequently to deposit the funds
 into the county treasury. A justice of the peace who violates Article 103.004
 may be prosecuted for abuse of official capacity under sec.39.02(a) of
the Penal Code; the justice of the peace also may be removed from office
 under sec.87.013(a)(2) of the Local Government Code or under Article V,
 sec.1-a(6) of the Texas Constitution.


DM-397 (RQ-818). Request from Honorable Steve
 Holzheauser, Chair Energy Resources Committee, Texas House of Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a judge may
 receive a fee for performing a marriage ceremony during regular office hours
 and use public resources in performing the ceremony.


Summary of Opinion. In performing a marriage
 ceremony as authorized by sec.1.83 of the Family Code, a judge is carrying
 out an official function. The judge may perform marriages during the hours
 of 8:00 a.m. to 5:00 p.m., as well as at other times, and keep the fees
 charged for doing so. Such fees are not "honorarium[s]" within the prohibition
 found in sec.36.07(a) of the Penal Code. Any allocation of public resources,
 including the judge's and employee's time, to the conduct of marriages must
 be reasonable in relation to the official function that is being carried
 out.


DM-398 (RQ-813) Request from Honorable James
 M. Kuboviak, Brazos County, Attorney Brazos County Courthouse, Bryan, Texas
 77803, concerning whether a tax assessor-collector may, without approval
 of the commissioners court of his county, expend funds accrued as interest
 under sec.23.122, Tax Code.


Summary of Opinion. The interest generated
 by the dealer's motor vehicle escrow account held by the tax assessor-collector
 pursuant to sec.23.122 of the Tax Code constitutes a fund which is to
 be used at the discretion of the collector to defray the cost of administration
 of the statutory prepayment procedure. The funds may be kept in a special
 account, and the collector does not need the approval of the commissioners
 court for their disbursement. Such funds may, however, only be used to
 defray the cost of administration of the prepayment procedure. They may
 not be used for general office expenses of the assessor-collector which
 are unrelated to the cost of administering the program.


DM-399 (RQ-858) Request from Honorable Don
 Henderson, Chair, Senate Jurisprudence Committee, Texas State Senate, P.O.
 Box 12068, Austin, Texas 78711-2068, concerning whether Chapter 43 and 
sec.243.003
 of the Local Government Code violate Article I, section 19 of the Texas
 Constitution when municipal annexation causes territory to be subject to
 a municipal ordinance regulating sexually oriented businesses that is less
 restrictive than that imposed by the county prior to annexation.


Summary of Opinion. The Local Government
 Code, Chapter 43, sec.243.003 do not violate Article I, section 19 of
 the Texas Constitution when municipal annexation causes territory to be
 subject to a municipal ordinance regulating sexually oriented businesses
 that is less restrictive than that imposed by the county prior to annexation.

DM-400 (RQ-866). Request from James R. Wilson,
 Director, Texas Department of Public Safety, P.O. Box 4087, Austin, Texas
 78773-0001, concerning whether a parent or guardian who teaches a driver
 education course under Texas Civil Statutes, Article 6687b, sec.7A, must
 be licensed under Texas Civil Statutes, Article 4413(29c), and related 
questions.

Summary of Opinion. The Seventy-fourth Legislature
 enacted Senate Bill 964, which added section 7A to former Texas Civil Statutes,
 Article 6687b, now codified as Transportation Code, Chapter 521. Section
 7A requires the Department of Public Safety to provide by rule "for approval
 of a driver training course given by the parent or legal guardian" of a
 person who must complete a driver training course to obtain a class C license.
 The parent or legal guardian who teaches such a driver training course is
 not required to be licensed as a commercial driver training school pursuant
 to Texas Civil Statutes, Article 4413(29c), nor must the parent or legal
 guardian be involved in the "home school" instruction of the person to be
 taught a driver training course. The Texas Education Agency may provide
 to the Department of Public Safety certificates of course completion for
 those persons who have successfully completed courses under section 7A of
 Article 6687b. The department may, by rule, set out the minimum course 
curriculum
 elements required for approval of a course of driver education to be taught
 by a parent or legal guardian under Texas Civil Statutes, Article 6687b,
 sec.7A. A parent or legal guardian will not be authorized to teach a driver
 education course to a child until the department's rules are in place
 and the department has approved the particular course to be given by the
 parent or guardian.


DM-401 (RQ-857).The Honorable Warren Chisum,
 Chair Committee on Environmental Regulation, Texas House of Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, concerning whether an independent
 school district located within a municipality is subject to a municipal
 ordinance governing garbage collection.

Summary of Opinion. The Pasadena Independent
 School District must comply with an ordinance of the City of Pasadena 
authorizing
 a single vendor to collect garbage within municipal limits, assuming that
 the ordinance is reasonable. The reasonableness of the ordinance involves
 the resolution of fact questions and therefore cannot be determined in
 an attorney general opinion.


Issued in Austin, Texas, on July 3, 1996.

TRD-9609611

Suzanne Marshall


Special Assistant


Office of the Attorney General


Filed: July 3, 1996