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# 97-002 (ID# 38855). Request from the
 Honorable Keith Oakley, Chair, Committee on Public Safety, Texas House of
 Representatives, P.O. Box 2910, Austin, Texas 78711-2548, regarding Municipal
 zoning regulation of manufactured housing.


Summary. Under the terms of the Manufactured
 Standards Housing Act, article 5221f, V.T.C.S., an incorporated city may
 forbid the installation of single-wide or aluminum-roofed dwellings only
 if such dwellings fail to meet the standards specified by the United States
 Department of Housing and Urban Development.


LO# 97-003 (ID# 39211). Request from the
 Honorable Frank Madla, Chair, Committee on Nominations, Texas State Senate,
 P.O. Box 12068, Austin, Texas 78711-2068, regarding when the senate does
 not act to confirm or reject a person nominated to an office by the governor
 during a legislative session, is the nominee considered rejected by law,
 so that he may not be reappointed to same office or board?


Summary. When the senate does not confirm
 or reject a person nominated to office by the governor during a legislative
 session, that person is considered to be rejected by the senate for purposes
 of article IV, sec.12 of the Texas Constitution. The governor may not appoint
 that person to fill the vacancy, or, during the term of the vacancy for which
 the person was rejected, to fill another vacancy in the same office or on
 the same board, commission, or other body.


LO# 97-004 (RQ-898). Request from the Honorable
 Bill Ratliff, Chair, Finance Committee, Texas State Senate, P.O. Box 12068,
 Austin, Texas 78711, regarding Reconsideration of Letter Opinion Number 95-088:
 Authority of the Lubbock County Hospital District to fund the expenses of
 the office of county medical examiner.


Summary. Letter Opinion Number 95-088,
 holding that the Lubbock County Hospital District could not fund the expenses
 of the medical examiners office, is affirmed. Letter Opinion Number 95-088
 (1995). The hospital district was created to provide medical and hospital
 care to the residents of the district and to assume full responsibility for
 providing such care to the needy inhabitants of the district. The taxes it
 levies and collects may only be used for hospital purposes. The purpose of
 the medical examiner's office is to determine whether the death of a person
 under certain circumstances was caused by an unlawful act or omission, and
 since this is not a hospital purpose, the hospital district may not fund
 that office. The hospital district may contract with the medical examiner
 in his private capacity to perform medical tests or autopsies on hospital
 patients for hospital purposes and may pay him for those services, assuming
 that this arrangement will not interfere with the medical examiner's duties
 to the county as medical examiner. The county and the hospital district may
 enter into a contract under the Interlocal Cooperation Act whereby the hospital
 district would pay for services performed by the medical examiner in his
 capacity as a physician performing tests for other physicians. Attorney General
 Opinion M-379 (1969), holding that a county hospital's statutory authority
 to provide "care" and "treatment" does not include authority to perform an
 autopsy on a patient who died of natural causes, is overruled.


LO# 97-005 (ID# 39130). Request from the
 Honorable Patricia Gray, Chair, Committee on Civil Practices, Texas House
 of Representatives, P.O. Box 2910, Austin, Texas 78768, regarding whether
 a city may impose a municipal hotel occupancy tax in an area annexed for
 limited purposes pursuant to a strategic partnership agreement under Local
 Government Code, sec.43.0751.


Summary. A city may not collect a municipal
 hotel occupancy tax in a municipal utility district annexed for limited 
purposes
 pursuant to a strategic partnership agreement under Local Government Code,
 sec.43.0751. A city with a population of less than 35,000, however, may
 impose a hotel occupancy tax in the city's extraterritorial jurisdiction
 pursuant to Tax Code, sec.351.0025 irrespective of city annexation of the
 area.


LO# 97-006 (ID# 39233). Request from the
 Honorable Mark W. Stiles, Chair, Calendars Committee, Texas House of 
Representatives,
 P.O. Box 2910, Austin, Texas 78768, regarding Constitutionality of 
Transportation
 Code requirement that applicant for original, renewal, or duplicate driver's
 license provide fingerprints, and related questions.


Summary. There is no constitutional impediment
 to the requirement now contained in sec.521.142 of the Transportation Code
 that an applicant for an original, renewal, or duplicate driver's license
 submit his or her thumb or index fingerprints as a part of such an application.

LO# 97-009 (ID# 39263). Request from the
 Honorable Ben W. Childers, County Attorney, Fort Bend County, 309 South Fourth
 Street, Suite 621, Richmond, Texas 77469-3506, regarding whether, in a civil
 case in which the litigants have agreed to fund an increase, jurors may receive
 a jury fee different from that the commissioners court has set and related
 questions.


Summary. Unless a court has found that the
 county commissioners court has abused its discretion in setting a jury fee,
 the county treasurer may not pay jurors in a specific case a jury fee different
 from that the county commissioners court has set in accordance with Government
 Code, sec.61.001, even though the litigants have agreed to fund the increase.
 No circumstances exist in which a juror may be paid more than the thirty
 dollar jury fee Government Code, sec.61.001(a) sets as a maximum. Litigants
 in a particular case who want to supplement the jury fee are bound by 
sec.61.001.
 Finally, the county treasurer may not agree to deposit the litigants' extra
 jury fee contribution in a noncounty depository and then disburse the money
 to the jurors.


LO# 97-010 (ID# 37379). Request from Mr.
 Steve Robinson, Executive Director, Texas Youth Commission, P.O. Box 4260,
 Austin, Texas 78765, regarding whether longevity pay and benefit replacement
 pay are included within the capped salary rate for Texas Youth Commission
 teachers.


Summary. Longevity pay and benefit replacement
 pay are included in the capped rate of salary for teachers employed by the
 Texas Youth Commission. The minimum salary paid to such teachers, however,
 may not be reduced by the longevity and benefit replacement payments in order
 not to exceed the capped salary rate.


TRD-9702960

LO# 97-007 (ID# 39104). Request from the
 Honorable John Whitmire, Chair, Senate Committee on Criminal Justice, Texas
 State Senate, P.O. Box 12068, Austin, Texas 78711, regarding whether an 
amusement
 park may prohibit a peace officer from carrying a concealed handgun on park
 premises under V.T.C.S. article 4413(29ee), sec.32 or Penal Code 
sec.46.035(b)(5).

Summary. Neither V.T.C.S. article 4413(29ee),
 sec.32 nor Penal Code, sec.46.035(b)(5) authorizes an amusement park
 to prohibit a peace officer, who is acting in the lawful discharge of an
 official duty or is a patron of the park, from carrying a concealed handgun
 on park premises.


LO# 97-008 (ID# 39101). Request from Ms.
 Kim Kiplin, Acting Executive Director, Texas Lottery Commission, P.O. Box
 16630, Austin, Texas 78761-6630, regarding whether the offer for sale of
 a sweepstakes ticket combined with a long-distance telephone card constitutes
 an illegal lottery.


Summary. The Texas Lottery Commission may
 conclude that a sweepstakes conducted through the sale of a one-minute long-
distance
 telephone card distributed primarily through slot-machine-like vending machines
 constitutes a prohibited "lottery" under chapter 47 of the Penal Code if
 it finds, as a matter of fact, that "any character of favoritism" is shown
 to persons who pay for the card as compared to those who obtain the sweepstakes
 tickets free of charge; that purchasers of the phone cards do not in fact
 regard them as having any value as phone cards; that the phone cards do not
 provide the service advertised; or that the "controlling inducement" to 
purchasing
 the phone card-sweepstakes ticket is the lure of operating the
 dispensing device. If the commission determines that the sweepstakes is a
 prohibited lottery, the machine that dispenses the tickets is a "gambling
 device" under chapter 47.


LO# 97-011 (ID# 38679). Request from the
 Honorable Mark H. Dettman, Midland County Attorney, P.O. Box 2559, Midland,
 Texas 79702, regarding whether the district or county attorney for Midland
 County must represent the county in general civil litigation and related
 questions.


Summary. Neither the Midland County Attorney
 nor the district attorney of the 142d Judicial District, which district 
consists
 of Midland County, is required to represent Midland County in general civil
 litigation. Nevertheless, the county commissioners court may contract with
 the county attorney, in his or her private capacity, to represent the county
 in general civil litigation. The county attorney is entitled to be compensated.
 On the other hand, the county may not contract with the district attorney
 to represent the county in general civil litigation in his or her private
 capacity.


TRD-9702961