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.

Letter Opinions
 
LO96-095 (RQ-901). Request from the Honorable
 Barry B. Telford, Chair, Committee on Pension and Investments, Texas House
 of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, regarding whether
 a provision in a pooled income fund trust agreement that authorizes the 
distribution
 of mutual fund short term capital gains as income would fundamentally depart
 from Texas law.


Summary. A provision in a pooled income fund
trust agreement that authorizes the distribution of mutual fund short term
 capital gains as income would not fundamentally depart from Texas law.


LO96-101 (ID# 38836). Request from the Honorable
 Delwin Jones, Chair, Committee on Redistricting, Texas House of 
Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, regarding whether a physician's
 employee who is not certified under the Medical Radiologic Technologist 
Certification
 Act, V.T.C.S. art. 4512m, is authorized to perform sinus and skull x-rays
 under the supervision of the physician.


Summary. Assuming that the Texas Board of
 Health identifies sinus and skull x-rays as "dangerous or hazardous" under
 V.T.C.S. article 4512m, section 2.05(g), a physician's employee who is not
 certified under the act will not be authorized to perform such a procedure
 under any circumstances with the following exception. A rule adopted by the
 board under section 2.05(k) permitting a registered nurse or physician 
assistant
 who is not certified, to perform a dangerous or hazardous procedure might
 permit certain, noncertified, physician employees to perform such a procedure.

LO96-102 (ID# 38823). Request from Ms. Rebecca
 E. Forkner, Executive Director, Texas State Board of Examiners of 
Psychologists,
 333 Guadalupe, Suite 2-450, Austin, Texas 78701, regarding effect of provision
 of chapter 611, Health and Safety Code, authorizing mental health professional
 to disclose confidential information about a patient in response to a subpoena.

Summary. A psychologist is authorized to
 disclose confidential information about a patient in a judicial or 
administrative
 proceeding where the court or agency has issued an order or subpoena without
 receiving a written waiver of confidentiality from the patient or patient's
 representative. A rule of the Board of Examiners of Psychologists interpreted
 by the board as requiring such a waiver is invalid to the extent of 
inconsistency
 with the exception to the confidentiality requirement found in section 
611.006(a)(11)
 of the Health and Safety Code. If a psychologist has received a subpoena
for patient mental health records he or she believes are privileged by rule
 510 of the Rules of Evidence, he or she may raise the claim of privilege
 under applicable provisions of the Rules of Civil Procedure. Although it
 may be advisable for a psychologist to notify a patient that his record s
have been subpoenaed, we cannot determine that the action would be either
 necessary or sufficient to protect the psychologist from liability in tort
 in the event that the patient's privileged mental health information is 
disclosed
in a judicial proceeding.


LO96-104 (ID# 38963). Request from the Honorable
 George P. Morrill II, Bee County District Attorney, 156th Judicial District,
 Bee County Courthouse, Room 205, Beeville, Texas 78102, regarding whether
 the Beeville-Bee County Redevelopment Authority Corporation is subject to
 the Open Meetings Act, Gov't Code ch. 551.


Summary.The board of directors of the Beeville-Bee
 County Redevelopment Authority Corporation is subject to the Open Meetings
 Act, Gov't Code ch. 551, by virtue of section 11(b) of the Development 
Corporation
 Act of 1979, V.T.C.S. art. 5190.6.


LO96-105 (ID# 38724). Request from the Honorable
 Mike Driscoll, Harris County, Attorney, 1001 Preston, Suite 634, Houston,
 Texas 77002-1891, regarding whether, under Probate Code section 887, a debtor
 may pay money to a county clerk for the benefit of a creditor if the creditor
 is owed, from all sources, a total greater than $25,000 and related question.

Summary. Probate Code section 887 authorizes
 a debtor or debtors to pay money to a county clerk for the benefit of an
 incapacitated creditor without a guardian only when the creditor is owed
 $25,000 or less from all sources. The $25,000 may come from multiple debtors
 or may come from a single debtor as a result of multiple transactions.

LO96-108 (ID# 38732). Request from the Honorable
 Lee Haney, District Attorney, 35th Judicial District of Texas Courthouse,
 Brownwood, Texas 76801, regarding whether a justice of the peace may require
 a person appealing a judgment of the justice court to pay the Local Government
 Code, section 118.121(2)(A) transcript fee in advance of rendering the service,
 and related questions.


Summary. Sections 118.121(2)(A) and 118.123
 of the Local Government Code do not permit a justice of the peace to collect
 a fee for preparing and filing a transcript prior to rendering the service.

LO96-109 (ID# 39125). Request from Mr. Dan
 Angel, President, Stephen F. Austin State University, P.O. Box 6078, SFA
 Station, Nacogdoches, Texas 75962-3065, regarding whether a state university
 may prohibit its employees from engaging in outside employment.


Summary. A rule of Stephen F. Austin State
 University requiring executive approval for all outside work undertaken by
 its employees is valid on its face.


LO 96-110 (ID# 34757). Request from the Honorable
 John Sharp, Comptroller of Public Accounts, Office of the Comptroller, State
 of Texas, P.O. Box 13528, Austin, Texas 78711, regarding whether a city is
 authorized to combine in a single proposition proposals for voting on adoption
 of an economic development tax under section 4B, V.T.C.S. article 5190.6
 and an additional sales and use tax under Tax Code section 321.101(b).


Summary. A city is not authorized to combine
in a single proposition proposals for voting on adoption of an economic 
development
 tax under section 4B, V.T.C.S. article 5190.6, and an additional sales and
 use tax under Tax Code section 321.101(b).


LO96-111 (ID# 38709). Request from the Honorable
 Tim Cone, Criminal District Attorney, Upshur County Justice Center, 405 North
 Titus Street, Gilmer, Texas 75644, regarding whether a commissioners court
 may decline to permit a particular individual to speak at a public meeting.

Summary A commissioners court may set reasonable
 limits on the number, frequency, and length of presentations before it, but
 may not unreasonably discriminate in deciding what matters to consider, or
 what speakers to hear.


LO96-112 (ID# 38780). Request from Mr. Gilbert
 Kissling, Administrator, State Board of Plumbing Examiners, 929 East 41st
 Street Austin, Texas 78765, regarding whether the class C misdemeanor penalty
 set forth in subsection (c) of section 14 of the Plumbing License Law, V.T.C.S.
 art. 6243-101, is limited to offenses under subsection (a).


Summary. Subsection (c) of section 14 of
 the Plumbing License Law, V.T.C.S. art. 6243-101, should read as follows:
 "An offense under this section is a Class C misdemeanor." The class C 
misdemeanor
 penalty set forth in subsection (c) is not limited to offenses under subsection
 (a).


LO96-115 (ID# 26543). Request from the Honorable
 Sonya Letson, Potter County, Attorney, 303 Courthouse, Amarillo, Texas 79101,
 regarding whether a nonprofit cemetery association owned entirely by its
 members must obtain a permit from the Department of Banking in order to sell
 "pre-need" grave vaults to its members.


Summary. A member-owned, non-profit cemetery
 association which wishes to sell grave vaults to its members on a pre-need
 basis must, in order to do so, apply for and receive a permit from the Texas
 Department of Banking, pursuant to article 548b, V.T.C.S. Such an association
 is eligible to apply for and receive such a permit whether or not it is 
affiliated
 with a funeral home.


LO96-117 (ID# 38916). Request from the Honorable
 Rene Guerra, Hidalgo County, Criminal District Attorney, Hidalgo County
 Courthouse, Edinburg, Texas 78539, regarding whether a county may build a
 detention facility using a design/build firm to provide architectural plans
 and construct the facility and using an architect to oversee construction.

Summary. As a general matter, the Professional
 Services Procurement Act, Gov't Code ch. 2254, subch. A, prohibits a county
 from obtaining architectural services by competitive bidding. Therefore,
 a county may not procure by competitive bidding a design/build contract that
 includes architectural services. Section 351.102 of the Local Government
 Code authorizes a county commissioners court to enter into a design/build
 contract with a private vendor to design and construct a detention facility,
 however, provided that the county adheres to the statute's procedures to
 obtain the contract and that the contract meets all statutory requirements
in sections 351.102 through 351.1035.


LO 96-118 (ID# 38752). Request from the Honorable
 Royce, West Chair, Senate Interim Committee on Juvenile Driving while 
Intoxicated
 Laws, P.O. Box 12068, Austin, Texas 78711, regarding whether a county may
 charge a fee to a defendant who is subject to article 17.441, Code of Criminal
 Procedure, for the purpose of verifying the installation of and monitoring
a motor vehicle interlock device.


Summary. A county may not charge a fee
 to a defendant who is subject to article 17.441 of the Code of Criminal 
Procedure,
 for the purpose of verifying the installation of and monitoring a motor vehicle
interlock device.


LO96-119 (ID# 38865.) Request from the Honorable
 Randal Lee Cass, County District Attorney, P.O. Box 940, Linden, Texas 75563,
 regarding whether a justice of the peace must conduct an inquest regarding
 the death of a nursing home resident who was under the regular care of a
 physician.


Summary. The words and phrases "attends,"
 "attended by a physician," and "attending physician" in article 49.04 of
the Code of Criminal Procedure mean a physician who is responsible for providing
 treatment and care at the time of a person's death. Under subarticles (a)(6)
 and (a)(7), inquests are mandatory in situations involving the deaths of
 nursing home residents where either the person, at the time of death, does
 not have a physician responsible for the patient's treatment and care or
 the attending physician is unable to certify the cause of death.


LO96-121 (ID# 36101). Request from the Honorable
 Teel Bivins, Chair, Nominations Committee, Texas State Senate, P.O. Box 12068,
 Austin, Texas 78711, regarding whether base updated service credits are 
calculated
 on the basis of the number of months a member has performed credited service
 and related questions.


Summary. Under Government Code section 853.402(c)(1),
 the Texas Municipal Retirement System must calculate a member's base updated
 service credit using the number of months of credited service the member
 has accumulated. Accordingly, the retirement system must credit the member
 for service for a partial year. If, in fact, the retirement system incorrectly
 has calculated members' base updated service credits, it must recalculate
 them in accordance with section 853.402. The retirement system also must
 recalculate updated service credits and retirement annuities that are premised
 upon incorrect base updated service credits. Finally, section 853.402(c)(1)
 requires that base updated service credit be calculated using, among other
 figures, "an amount equal to the accumulation at three percent interest "
per year of an employee's average updated service compensation for a specified
 period of time.


LO96-122 (RQ-875).Request from the Honorable
 Ken Armbrister, Chair, Committee on State Affairs, Texas State Senate, P.O.
Box 12068, Austin, Texas 78711, regarding whether a person whose land was
 condemned by the federal government for military purposes may recover the
 property when the federal government no longer uses the property for those
 purposes and related questions.


Summary. The United States may exercise its
 power of eminent domain over real property that the State of Texas has conveyed
 by patent, so long as the United States acts in accordance with its 
constitutional
 powers and for a public purpose. The United States may retain title to real
 property that it acquired by the condemnation, even though the federal 
government
 has devoted the land to another public use. Neither Government Code section
 2204.101 nor the fact that the landowner acquired his or her land by patent
 from the state accords the landowner special status that would restrict in
 any way the federal government's power to condemn, or once condemned to convert
 to another public use, real property.


LO96-124 (ID# 39014).Request from the Honorable
 Judith Zaffirini, Chair, Committee on Health and Human Services, Texas State
 Senate, P.O. Box 12068, Austin, Texas 78711, regarding whether the State
 may enter into a contingent fee contract with a private law firm for the
 provision of legal services involved in a particular lawsuit.


Summary. The State may enter into contingent
 fee contracts for outside legal counsel that provide that the contracting
 law firm pay all necessary and proper expenses incurred during the course
 of the litigation and be compensated on the basis of a percentage of the
 monies recovered only in the event that the state prevails. The necessary
 and proper litigation expenses incurred by the law firm pursuant to the 
contract
 do not constitute "officeholder contributions" for purposes of title 15 of
 the Election Code. The determination as to whether any specific public service
 announcement would be "political advertising" would involve the resolution
 of issues of fact, which is inappropriate in the opinion process. If the
 public service announcement supported or opposed a public officer, the 
announcement
 would constitute "political advertising" for purposes of the Election Code.
 If, on the other hand, the announcement merely provided information and 
explanation
 regarding the State's position in the lawsuit, without expressing support
 for or opposition to a public officer, it would not constitute "political
 advertising." The mere presence of a public officer in a public service 
announcement,
 without more, cannot constitute "political advertising." The determination
 as to whether any specific public service announcement would violate rule
 3.07 of the Texas Disciplinary Rules of Professional Conduct is a question
 of fact, the resolution of which is inappropriate in the opinion process.
 If any public service announcement set forth the sort of information outlined
 in subsection (c) of that rule--facts that are available in the public record--
no
 violation of rule 3.07 would occur. If, on the other hand, the information
 disclosed "will have substantial likelihood of materially prejudicing an
 adjudicatory proceeding," then rule 3.07 would be violated.


LO96-125 (ID# 39225). Request from Patti
 J. Patterson, M.D., M.P.H. Acting Commissioner of Health, Texas Department
 of Health, 1100 West 49th Street, Austin, Texas 78756-3199, regarding whether
 the Texas Board of Health is authorized by the Medical Radiologic Technologist
 Certification Act, V.T.C.S. art. 4512m, to promulgate rules establishing
 a class of certificate for students who perform radiologic procedures in
 an academic or clinical setting as part of a training program which meets
 minimum standards adopted by the board.


Summary. The Texas Board of Health (the "board")
 is authorized under Medical Radiologic Technologist Certification Act, V.T.C.S.
 art. 4512m (the "act"), to promulgate rules establishing a class of certificate
 for students, who perform radiologic procedures in an academic or clinical
 setting as part of a training program which meets minimum standards adopted
 by the board, to authorize them to perform dangerous or hazardous procedures.
 A student who performed a dangerous or hazardous procedure under the authority
 of such a certificate would not run afoul of section 2.05(g) of the act.

LO96-128 (ID# 38908). Request from the Honorable
 Tom Craddick, Chair, House Committee on Ways and Means, House of 
Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, regarding Applicability of section
 11.31(a), Tax Code, to a commercial injection well that is operated solely
 for the purpose of treating and disposing of waste generated by third parties.

Summary. A business engaged in treating,
 handling, and disposing of waste generated by third parties, for which it
 charges such third parties a fee, is not entitled on that basis to an exemption
 from property taxes under section 11.31(a) of the Tax Code.


TRD-9617572



Request for Opinions

RQ-924. Requested from The Honorable Mike
 Driscoll, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas
 77002-1891, concerning whether a county may amend a tax abatement agreement
 to remove land from an existing reinvestment zone.


RQ-925. Requested from Oliver R. Smith, Jr.
D.C. President, Texas Board of Chiropractic Examiners, 333 Guadalupe, Tower
III, Suite 825 Austin, Texas 78701, concerning whether a chiropractor may
 treat patients with injectable vitamins, and related questions.


TRD-9617921