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-#97-014. Request from the Honorable Rodney
 Ellis, Chair, Intergovernmental Relations Committee, Texas State Senate P.O.
 Box 12068, Austin, Texas 78711, concerning whether the State Library and
 Archives Commission may promulgate rules authorizing county and district
 clerks to destroy bogus documents that have been filed with them (ID# 39105).

SUMMARY. The State Library and Archives Commission
 has some authority to promulgate rules authorizing county and district clerks
 to destroy bogus documents in their files, but it lacks authority to address
 related issues such as notice requirements and a clerk's liability in suits
 for destruction of the records. Legislative action is necessary to fully
 address the issues relating to the destruction of such bogus documents.

LO-#97-015. Request from the Honorable James
 M. Kuboviak, Brazos County Attorney, Brazos County Courthouse, 300 East 26th
 Street, Suite 325, Bryan, Texas 77803, concerning reconsideration of Attorney
 General Letter Opinion No. 96-060 (1996) and related questions (ID# 38863).

SUMMARY. We affirm our conclusion in Letter
 Opinion Number 96-060 (1996). The fact that the Texas Supreme Court approved
 Brazos County's local rules, adopted in accordance with the Court 
Administration
 Act, including a rule that misdemeanor cases over which the statutory county
 courts share jurisdiction with the 361st District Court must be filed with
 the county clerk, does not warrant a conclusion that Government Code, 
sec.74.093
 prevails over Government Code, sec.25.0232(g). Although misdemeanor cases
 filed with the county clerk presumably were improperly filed, judgments
 in the cases are not void or voidable, particularly where the cases were
 filed in good-faith reliance upon the supreme court's approval of the local
 rules of court administration. Misdemeanor cases of which the 361st District
 Court and statutory county courts have concurrent jurisdiction must be filed
 with the district clerk whether or not the local district and statutory
 county court judges revise the local rules of court administration to comply
 with the law. Cases involving delinquent conduct or conduct in need of 
supervision
 must be filed with the district clerk under Government Code, sec.25.0232(g)
 only if the county juvenile board has designated a district court as well
 as a statutory county court as the juvenile court in Brazos County. The 
appropriate
 clerk of court, whether county or district, must assign cases involving
 delinquent conduct or conduct in need of supervision only to the designated
 juvenile court. Because statutory county courts and district courts have
 concurrent jurisdiction of family-law cases other than cases involving 
delinquent
 conduct or conduct in need of supervision, Government Code, sec.25.0232(g)
 requires the district clerk to accept those cases for filing. The district
 clerk must assign the cases in accordance with a local rule adopted under
 the Court Administration Act, if one has been adopted. The district clerk
 must accept for filing, under Government Code, sec.25.0232(g), all cases
 of which the district and statutory county courts have concurrent jurisdiction.

LO-#97-016. Request from the Honorable Ciro
 D. Rodriguez, Chair, Committee on Local, and Consent Calendars, Texas House
 of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether
 a deputy constable may be classified as an "employee" pursuant to chapter
 158 of the Local Government Code; reconsideration of DM-385 (ID# 39131).

SUMMARY. A county civil service commission
 in a county with a basic civil service system created pursuant to chapter
 158 of the Local Government Code may adopt a rule defining deputy constables
 as "employees" covered by the system. Attorney General Opinion DM-385 (1996)
 is affirmed.


LO-#97-017. The Honorable Hugo Berlanga,
 Chair, Committee on Public Health, Texas House of Representatives, P.O. Box
 2910, Austin, Texas 78768-2910, concerning whether the governing body of
 a county hospital district established under Health and Safety Code chapter
 281 may lease a hospital facility without obtaining the approval of the county
 commissioners court and related questions (ID# 39349).


SUMMARY. Health and Safety Code, sec.285.051
 and sec.285.052 apply to a county hospital district established under
 Health and Safety Code chapter 281 and prevail over sec.281.050 and 
sec.281.051.
 As a result, a commissioners court has no authority with respect to an action
 to lease a hospital facility taken by a hospital district board of managers
 under sec.285.051. We have no basis to conclude that the board of trustees
 of a private nonprofit corporation, which includes three members of a hospital
 district board of managers, is itself a governmental body subject to the
 Open Meetings Act, Gov't Code ch. 551, or the Open Records Act, Gov't Code
 ch. 552. The three members of the board of managers may constitute a 
governmental
 body as a group and be subject to the Open Meetings Act, if the board of
 managers has delegated the group any authority over hospital district business
 or rubber-stamps the group's recommendations regarding hospital district
 business. Regardless of whether the private nonprofit corporation is subject
 to the Open Records Act, the hospital district is a governmental body under
 the act and any information relating to the corporation that is in the 
possession
 of the hospital district, including information in the possession of board
 of managers members in their capacity as members of the hospital district's
 governing body, is subject to the act. Because Health and Safety Code,
 sec.281.056 authorizes a hospital district board of managers to form an
 attorney-client relationship with outside counsel even if the county attorney
 objects, the board is authorized under the Open Meetings Act to hold a closed
 session to seek and receive advice from outside counsel even if the county
 attorney has not approved of the representation and is not included in the
 closed session. The board has the authority to exclude the county attorney
 from a closed session of a board meeting, just as it has the authority to
 exclude any other non-board member.


TRD-9703655



Open Records Request

ORQ-22. Request from Mr. Terry Trimble, Interim
 Commissioner, Texas Department of Human Services, P.O. Box 149030, Austin,
 Texas 78714-9030, concerning whether various statutory confidentiality 
provisions
 regarding peer review committees apply to all communications and records
 provided to the Texas Department of Human Services by a nursing home facility
 during an inspection or complaint investigation (ID#103171-96).


TRD-9703642



Opinions 
DM-432. Request from the Honorable Warren
 Chisum, Chair, Environmental Committee, Texas House of Representatives, P.O.
Box 2910 Austin, Texas 78768-2910, concerning whether Tax Code sec.11.23(c),
 which provides a tax exemption for the tangible property of the Nature 
Conservancy
 of Texas, Inc., is constitutional (RQ-829).


SUMMARY. Section 11.23(c) of the Tax Code,
 which provides for a tax exemption for the tangible property of a specific,
 private entity by name, is not a general law authorized by article VIII,
 section 2 of the Texas Constitution and is a special law in violation of
article III, section 56.


DM-435. Request from the Honorable Tim Curry,
 Tarrant County Criminal District Attorney, 401 West Belknap, Fort Worth,
 Texas 76196-0201 concerning whether Family Code sec.58.001(c) requires
 a law enforcement agency to destroy all information relating to certain 
juveniles
 (RQ-879).


SUMMARY. Family Code, sec.58.001(c) requires
 a law enforcement agency to destroy all information relating to a child who
 has been taken into custody created pursuant to the arrest if the child is
 not referred to juvenile court within ten days, unless the child is placed
 in a first offender program or on informal disposition. In the event a child
 is placed in a first offender program or on informal disposition, the law
 enforcement agency must destroy all information relating to the child created
 pursuant to the arrest if the child successfully completes the program or
 informal disposition. 

Subsection (c) requires the destruction of all information relating to
 a child created pursuant to an arrest in the possession of a law enforcement
 agency regardless of its form, including information in computerized form.
 Subsection (c) requires the destruction only of information relating to the
 child created pursuant to the arrest and does not necessarily require the
 destruction of entire documents. Family Code, sec.58.007 requires that
 law enforcement records and files concerning a child shall "be kept separate
 from adult files and records." It would be reasonable for a law enforcement
 agency to destroy information relating to a child created pursuant to an
 arrest by the end of the calendar year in which it is collected. Information
 relating to a child who has completed a first offender program, however,
 must be retained for ninety days after the date the child completes the 
program.

TRD-9703662


DM-433. The Honorable Fred Hill, Chair, Committee
 on Urban Affairs, Texas House of Representatives, P.O. Box 2910, Austin,
 Texas 78768-2910, concerning authority of a home-rule city to adopt an 
ordinance
 restricting or prohibiting cigarette vending machines (RQ-912).


SUMMARY. A home-rule municipality is empowered
 to adopt an ordinance that either prohibits the sale of tobacco products
 through vending machines or restricts the placement of such machines to areas
 in which persons younger than eighteen years of age are barred.


DM-434. Request from the Honorable Fred Hill,
 Chair, Committee on Urban Affairs, Texas House of Representatives, P.O. Box
 2910, Austin, Texas 78768-2910, concerning whether public housing authorities
 may administer federal housing assistance program involving payment of rent
 outside of their geographical boundaries (RQ-710).


SUMMARY. The San Antonio Housing Authority
 and the Bexar County Housing Authority were established under Local Government
 Code chapter 392 to provide low-income housing pursuant to the United States
 Housing Act of 1937, 42 U.S.C. 1437 et seq. Pursuant to the federal provision
 for "portability" of housing subsidies, 42 U.S.C. 1437f(r), the two housing
 authorities may administer housing assistance with respect to dwelling units
 in the City of Balcones Heights, even though Balcones Heights is outside
 of their areas of operation. To the extent that state law limitations on
 the jurisdiction of the housing authorities would prevent them from 
administering
 this program with respect to units in Balcones Heights, the state law is
 preempted by a federal regulation.


TRD-9703656