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 LO #96-129. Request from the Honorable Rodney Ellis, Chair, Intergovernmental Relations Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning whether a municipality may establish a public improvement district under chapter 372, Local Government Code, without first having received a petition from property owners in the proposed district which meets the requirements of sec.372.005 of the Local Government Code (ID# 39195). Summary. The petition referenced in sec.372.002 of the Local Government Code and described in sec.372.005 of the Local Government Code is a prerequisite for the establishment of a public improvement district. LO #96-130. Request from the Honorable Eddie Lucio, Jr., Chair, Senate Committee on Intergovernmental Relations, P.O. Box 12068, Austin, Texas 78711, concerning whether Education Code sec.53.47(f) authorizes a higher education authority to loan funds and pledge unencumbered collateral (ID# 39124). Summary. Education Code sec.53.47(f) applies only to a nonprofit corporation. This section does not apply to a higher education authority created under Education Code chapter 53 and therefore does not in any way expand the powers of an authority. Section 53.47(f) does generally authorize a nonprofit corporation that issues securities to obtain funds to purchase or make student or parent loans to exercise powers granted by the Texas Non-Profit Corporation Act, which include the authority "[t]o lend money for its corporate purposes, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested." V.T.C.S. art. 1396-2.02A(9). LO #96-131.Request from the Honorable Steven C. Hilbig, Bexar County Criminal District Attorney, 300 Dolorosa, Suite 5072, San Antonio, Texas 78205-3030, concerning fee for filing verified petition for occupational driver's license following conviction for driving while intoxicated (ID# 38941). Summary. When a person files a petition to obtain an occupational driver's license, county and district clerks should charge the fee for filing an original civil suit or filing an original action and assign a new cause number. LO #96-132. Request from Mr. Craig D. Pederson, Executive Administrator, Texas Water Development Board, P.O. Box 13231, Austin, Texas 78711-3231, concerning whether the Texas Water Development Board may purchase a savings bond as an employee service award pursuant to the 1995 General Appropriations Act, article IX, sec.11, if the bond has a maturity value of more than $50 (ID# 38954). Summary. Savings bonds not exceeding a purchase price of fifty dollars are permissible employee service awards under the 1995 General Appropriations Act, article IX, sec.11. LO #96-133. Request from the Honorable Barry Telford, Chair, Committee on Pensions and Investments, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a 1995 General Appropriations Act rider regarding the state contribution to the Optional Retirement Program is unconstitutional, and related questions (ID# 38890). Summary. A 1995 General Appropriations Act rider is not unconstitutional due to its failure to authorize institutions of higher education to use local funds to supplement the 6% state contribution to the Optional Retirement Program ("ORP"). See General Appropriations Act 1995, 74th Legislature, R.S., chapter 1063, 1995 Texas Gen. Laws 5242, 5479 (Teacher Retirement System and Optional Retirement System, Rider 6, at III-29). The rider distinguishes between employees eligible to receive the same state/employer contribution they received during the 1994-95 biennium and those who will receive only a 6% state contribution based on their first date of employment and whether they actually received a state/employer contribution during the Letter Opinion Number 96-135 1994-95 biennium. An ORP participant does not have a vested or contractual right to a certain state or employer contribution beyond any one biennium. The rider's requirement that institutions of higher education notify all newly hired employees that the state contribution rate may fluctuate over time purports to impose an affirmative requirement on state officers and entities that cannot be found in general law and is therefore unconstitutional. LO #96-135. Request from the Honorable Bill Weinacht, Reeves County Attorney, P.O. Box 825, Pecos, Texas 79772, concerning whether a county commissioner violates sec.81.002 of the Local Government Code by signing a contract with the tax assessor-collector for payment of delinquent taxes pursuant to sec.33.02 of the Tax Code (ID# 38603). Summary. A contract between a county commissioner and the tax assessor-collector for the installment payment of delinquent taxes, penalties, and interest under section 33.02 of the Tax Code is not subject to sec.81.002 of the Local Government Code. LO #96-136. Request from the Honorable Stephen H. Smith, District Attorney, 119th Judicial District, 124 West Beauregard, San Angelo, Texas 76903, concerning whether a county may use a five cent surcharge on the sale of items from vending machines in the county courthouse for an employee benefit fund (ID# 38943). Summary. A county may use the proceeds of a five cent surcharge on vending machines in the county courthouse to purchase small gifts, plaques, or flowers for funerals, weddings, or retirements of county employees if the county determines that such use will enhance employee morale. Such an expenditure would not as a matter of law violate article III, sec.52 of the Texas Constitution. LO #96-138. Request from the Honorable Gonzalo Barrientos Chair, Committee of the Whole on Legislative and Congressional Redistricting, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning municipality's authority under the Tax Increment Financing Act, Tax Code chapter 311, to condemn property and implement a redevelopment plan (RQ-896). Summary. Section 311.008(a) of the Tax Increment Financing Act authorizes but does not require a city to exercise the powers listed, including the power to condemn property, to implement a reinvestment zone redevelopment plan. A city may be permitted to condemn property as a group under certain circumstances at the discretion of the court. LO #96-143. Request from Mr. Tommy V. Smith, Executive Director, Texas Department of Licensing and Regulation, P.O. Box 12157, Austin, Texas 78711, concerning whether the administrative penalty authority granted to the Texas Department of Licensing and Regulation under section 91.021, Labor Code, resides in the commission or the commissioner (ID# 38644). Summary. The Texas Department of Licensing and Regulation administers the Staff Leasing Services Act, codified as chapter 91 of the Labor Code. Authority to assess a $1,000 to $50,000 administrative penalty for violations of Labor Code, chapter 91, resides with the Commission of Licensing and Regulation, and not with the commissioner. The commission is authorized to delegate to the commissioner authority to make recommendations as to the amount of the administrative penalty in specific cases or to otherwise assist in imposing it. LO #96-146. Request from Ms. Brenda F. Arnett, Executive Director, Texas Department of Commerce, P.O. Box 12728, Austin, Texas 78711-2728, concerning whether the Capital Certified Development Corporation is subject to the Texas Open Meetings Act (ID# 38887). Summary. The Capital Certified Development Corporation (the "CCDC"), created as a nonprofit corporation by the Department of Commerce pursuant to sec.481.077(a) of the Government Code, is not a local level entity, nor is it an entity in the legislative or executive branch of state government. Accordingly, the CCDC is not required by the terms of the Texas Open Meetings Act, chapter 551, Texas Government Code, to comply with its procedures for meetings. If the CCDC's articles of incorporation or the bylaws provide that the board of directors must meet in compliance with the Open Meetings Act, the board must do so. TRD-9701705 LO #96-079. Request from Mr. Tom Treadway, Executive Director, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047, concerning validity under Texas Constitution, article III, sec.35 of rider found at article IX, sec.49, 1995 General Appropriations Act (ID# 38966). Summary. The rider found at article IX, sec.49 of the 1995 General Appropriations Act attempts to adopt and amend general law in violation of article III, sec.35 of the Texas Constitution and is therefore invalid except to the extent consistent with state law. TRD-9701706 Request for Opinions ID# 39334. Requested from the Honorable Dennis Cadra, Andrews County Attorney, County Courthouse, Andrews, Texas 79714, concerning lesser included offenses for class C traffic violations. ID# 39338. Requested from the Honorable James Warren Smith, Jr., Frio County Attorney, 500 East San Antonio Street, Box 1, Pearsall, Texas 78061-3100, concerning whether court costs may be assessed to parents and juveniles under sec.54.0411(a), Family Code. ID# 39343. Requested from Mr. John Maline, Executive Director, Executive Council of Physical Therapy and Occupational Therapy Examiners, 333 Guadalupe, Suite 2-510, Austin, Texas 78701-3942, concerning whether a licensed occupational therapist may use professional designations that have been trademarked by a private national association, and related questions. ID# 39350. Requested from the Honorable Keith Oakley, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768- 2910, concerning whether sec.617.002, Government Code, prohibits representatives of a governmental body from meeting with union representatives to discuss employee working conditions. ID# 39351. Requested from the Honorable Keith Oakley, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768- 2910, concerning whether a municipality may use non-civil service firefighters at a city owned race track. ID# 39357. Requested from the Honorable Ken Armbrister, Texas Senate, P.O. Box 12068, Austin, Texas 78711, concerning authority of the Edwards Acquifer Authority to borrow funds for operating expenses and pledge anticipated fee revenues as collateral. ID# 39358. Requested from the Honorable Mark F. Pratt, Hill County Attorney, P.O. Box 253, Hillsboro, Texas 76645, concerning whether a deputy sheriff who is not certified as a fire and arson investigator may investigate a suspected arson crime scene. ID# 39378. Requested from the Honorable Frank Madla, Texas Senate, P.O. Box 12068, Austin, Texas 78711, concerning authority to contract with a private vendor to provide telephone services to county jail inmates. TRD-9701818 RQ-928. Requested from Mr. Bruce A. Levy, M.D. J.D., Executive Director, Texas State Board of Medical Examiners, P.O. Box 2018, Austin, Texas 78768-2018, concerning authority of a physical therapist to perform needle electromyography testing. TRD-9701819