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.

Opinions
DM-250 (1993) (ID# 39126). 
Request from The Honorable Mike Driscoll, Harris County Attorney, 1001
 Preston, Suite 634, Houston, Texas 77002-1891, concerning correction of summary
 of Attorney General Opinion.


Summary. Pursuant to rule 536 of the Texas
 Rules of Civil Procedure, the clerk of a justice court must serve citation
 by mail or publication if asked to do so. Rule 536 of the Texas Rules of
 Civil Procedure permits any sheriff, constable or any person authorized by
 law or any person authorized by court order who is at least eighteen years
 old to serve process in justice cases by registered or certified mail. Rule
 116 authorizes service by publication in justice court cases by the sheriff
 or any constable of any county in Texas or the clerk of the court in which
 the case is pending. Pursuant to sec.118.121 and sec.118.122 of the Local
 Government Code, the justice court clerk may charge a fee of $15 for filing
 the case. The justice court clerk may not charge a fee for service of process
 by certified or registered mail; however, the justice court clerk may collect
 advance payment for the expense of postage for serving process by mail unless
 another statute exempts the party from paying such costs. [Emphasis added.]

DM-420 (RQ-798). Request from The Honorable
 Mike Driscoll, County Attorney, Harris County, 1001 Preston, Suite 634, 
Houston,
 Texas 77002-1891, concerning authority of the Harris County Flood Control
 District to provide for recreational and environmental improvements under
 Senate Bill 586, Act of May 21, 1993, 73d Legislature, Regular Session, Chapter
 409, 1993 Texas General Laws 1711, 1711.


Summary. The Harris County Flood Control
 District may not use tax or tax bond funds for recreational and environmental
 measures described in Senate Bill 586, Act of May 21, 1993, 73d Legislataure,
 Regular Session, Chapter 409, sec.1, 1993 Texas General Laws 1711, 1711-12,
 if the measures are not within the purposes of such a district as set out
 in article XVI, section 59 of the Texas Constitution, even if the district
 has an election purporting to authorize such expenditures. Recreational 
purposes
 under Senate Bill 586 are less likely to be found within the constitutional
 purpose of the district while environmental measures under the bill are more
 likely to be so found. A measure that is contrary to the purposes of the
 Article XVI, sec.59 or is solely recreational in purpose is not a permissible
 use of tax or tax bond funds. The Harris County Commissioners Court, the
 governing body of the district, should make the requisite factual 
determinations
 at least in the first instance. 

Whether an easement held by the district may be used for Senate Bill 586
 purposes depends ultimately on the contemplation of the parties at the time
 of granting. Easements acquired with tax or tax bond funds may not, however,
 be used for recreational or environmental purposes not within the 
constitutional
 authorization for the district in Article XVI, sec.59.


DM-421 (RQ-737, RQ-769).. Request from Dr.
 William H. Cunningham, Chancellor, The University of Texas System, 601 Colorado
 Street, O'Henry Hall, Austin, Texas 78701, The Honorable Judith Zaffirini,
 Chair, Health and Human Services Committee, Texas State Senate, P.O. Box
 12068, Austin, Texas 78711, concerning whether the board of regents of an
 institution of higher education may waive all or part of tuition and fees
 for a particular student or a particular group of students and related 
questions.

Summary. Attorney General Opinion H-1028
 (1977) has been superseded by amendment to Education Code sec.54.503. Unless
 a statute explicitly permits the waiver, a governing board may not waive
 any fee created by Chapter 54 or 55 of the Education Code. A university may
 not charge a discretionary, voluntary fee of a student who will not use the
 service the fee is designed to subsidize. Where the legislature has not 
stipulated
 that a discretionary fee must be compulsory, voluntary, or the governing
 board's choice, the fee must be compulsory. 

Unless it is expressly authorized by statute, the board of regents of The
 University of Texas System may not adopt a policy waiving the collection
 of compulsory fees from faculty and staff members who enroll in courses at
 the institution that employs them. Similarly, without express statutory 
authority,
 the board may not adopt a policy waiving the collection of compulsory fees
 from members of the families of faculty and staff members who enroll in classes
 at a component institution. As to individual faculty or staff members or
 individual members of the families of faculty or staff members, the board
 may waive the collection of fees as expressly authorized by statute.

 The governing board of an institution of higher education may not waive
 a medical service fee for active-duty military personnel because the students
 will not use the services.


DM-423 (RQ-890). Request from Bruce A. Levy,
 M.D., Executive Director, Texas State Board of Medical Examiners, P.O. Box
 2018, Austin, Texas 78768-2018, concerning authority of the Board of Medical
 Examiners to regulate hyperbaric oxygen therapy.


Summary. The Board of Medical Examiners has
 the authority to determine whether hyperbaric oxygen therapy constitutes
 the practice of medicine, the power to regulate the performance of such 
therapy,
 and the power to make rules which limit the ability of physicians to delegate
 performance of such therapy or which establish standards for supervision
 of such therapy when a delegation has been made. Whether hyperbaric oxygen
 therapy is within the practice of podiatry depends upon the resolution of
 factual questions. However, if hyperbaric oxygen therapy is within the practice
 of podiatry, its practice by podiatrists is regulated by the Board of Podiatric
 Medical Examiners, not the Board of Medical Examiners.


DM-425 (RQ-884). Request from Patti J. Patterson,
 M.D., MPH, Acting Commissioner, Texas Department of Health, 1100 West 49th
 Street, Austin, Texas 78756-3199, concerning whether a therapeutic optometrist
 may perform certain procedures.


Summary. For purposes of the Texas Optometry
 Act, Texas Civil Statutes, Articles 4552-1.01 through 4552-7.02, the term
 "surgery" refers only to cutting operations. Whether a particular procedure
 is a cutting operation, which a therapeutic optometrist is forbidden to 
perform,
 is a question of fact.


TRD-9618043


Request for Opinions

ID# 39165. Requested from The Honorable Ron
 Lewis, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910,
 concerning whether a charity receiving funds under a juror reimbursement
 donation program must have been approved by a Commissioners Court prior to
 January 1, 1995.


ID# 39239. Requested from The Honorable Patti
 J. Patterson, Commissioner on Health, Texas Department of Health, 1100 West
 49th Street, Austin, Texas 78756-3199, concerning authority of the Department
 of Health to conduct an independent study of market need and feasibility
as required for the issuance of mortgage insurance.


ID# 39244. Request from The Honorable Steve
 Holzheauser, Texas House of Representatives, P.O. Box 2910, Austin, Texas
 78768, concerning authority of a peace officer to seize motor vehicles under
Texas Civil Statutes, Article 6687-2(k).


ID# 39256. Request from The Honorable Steven
 Hilbig, Bexar County Criminal District Attorney, 300 Dolorosa, Suite 5072,
 San Antonio, Texas 78205, concerning authority of a district clerk to collect
 an "initial operations fee" under sec.203.005, Family Code, at the time
 a suit is filed.


ID# 39261. Request from Honorable Chris Harris,
 Chair, Senate Administration Committee, Texas Senate, P.O. Box 12068, Austin,
 Texas 78711, concerning authority of a city council to require that requests
 for zoning variances in a specified district be held by the council rather
 than by the board of adjustment, and related questions.


ID# 39263. Request from The Honorable Ben
 Childers, Fort Bend County Attorney, 309 South Fourth Street, Suite 621,
 Richmond, Texas 77469, concerning authority of a district judge to set a
 jury fee different from that set by a commissioners court, and related 
questions.

TRD-9618215