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-97-053 (ID# 39436). Request from
 the Honorable James Warren Smith, Jr. Frio County, Attorney, 500 East San
 Antonio Street, Box 1 Pearsall, Texas 78061-3100, regarding whether a privately
 employed jailer who is certified by the Texas Commission on Law Enforcement
 Officer Standards and Education may be permitted to carry a weapon in the
 official discharge of his or her duties


SUMMARY. A jailer employed by a private
 contractor which operates and manages a detention facility for a county is
 not a peace officer within the meaning of article 2.12 of the Code of Criminal
 Procedure, and is therefore not excepted from prohibitions on the carrying
 of weapons by sec.46.15 of the Penal Code. However, such a jailer, when
 in the actual performance of his or her duties, is a "guard employed by a
 penal institution" entitled to the defenses established by sec.46.02(b)(1)
 and sec.46.03(d)(2) of the Penal Code. Accordingly, such a jailer may carry
 a weapon in the performance of his or her duties.


LO-97-054 (ID# 39389). Request from
 the Honorable Sherry L. Robinson, Waller County, Criminal District Attorney,
 836 Austin Street, Suite 103, Hempstead, Texas 77445, regarding whether county
 judge may delegate duty to hear applications for liquor licenses under chapter
 61 of the Alcoholic Beverage Code to judge of county court at law.


SUMMARY. For the purposes of sec.61.312
 of the Alcoholic Beverage Code, the County Court at Law Judge of Waller County
 is not "another county officer" to whom the county judge may delegate the
 duty of hearing license applications under chapter 61 of that code.


TRD-9706991


Opinions

DM-440 (RQ-634). Requests from the Honorable
 Kenneth Armbrister, Chair, Committee on State Affairs, Texas State Senate,
 P.O. Box 12068, Austin, Texas 78711-2068, the Honorable Ron Lewis, Chair,
 Committee on County Affairs, Texas House of Representatives, P.O. Box 2910,
 Austin, Texas 78768-2910, and the Honorable Ramiro V. Martinez, Webb County,
 Auditor, P.O. Box 3103, Laredo, Texas 78044, regarding whether the county
 treasurer or the county auditor is responsible for various duties under 
chapters
 112 and 113 of the Local Government Code, and related questions.


SUMMARY. Under sec.113.061 of the Local
 Government Code, claims are registered by the county treasurer after they
 have been approved by the county auditor and the county commissioners court.
 Section 113.061 does not create a "first in time, first in line" order of
 payment. In Commissioners Court of Titus County 
v. Agan, 940 S.W.2d 77, 82 (Tex. 1997), the Texas Supreme Court concluded
 that the county treasurer's core functions consisted of those duties assigned
 to the treasurer by the legislature and that the commissioners court could
 not allocate the treasurer's core functions to any other officer, including
 the county auditor. Duties not specifically assigned to the county treasurer
 by the legislature are not among the county treasurer's core functions. The
 commissioners court may, within its discretion, delegate "non-core" ministerial
 duties to a county official that has statutory authority to perform these
 clerical functions. Since the legislature had delegated payroll preparation
 responsibilities that involved disbursing county funds to the county treasurer,
 the disbursement responsibilities could not be delegated to another officer.
 The commissioners court could delegate other ministerial functions involved
 in payroll preparation to a county official other than the treasurer. The
 rule established by the Agan case for payroll preparation also applies to
 the preparation and processing of claims for other county expenditures. If
 the legislature has not assigned a function to a specific officer, the 
commissioners
 court acting in its legislative capacity may delegate that responsibility
 to an appropriate county official. The Texas Supreme Court expressly disagreed
 with the conclusions of Attorney General Opinions JM-911 and JM-986 (1988).
 Accordingly, these opinions are overruled.


DM-441 (RQ-922). Request from the Honorable
 Bill Ratliff Chair, Finance Committee, Texas State Senate, P.O. Box 12068,
 Austin, Texas 78711-2068, regarding whether the City of Longview is authorized
 to transfer city-owned property to the University of Texas for the purpose
 of establishing a university campus


SUMMARY. The City of Longview need not comply
 with Local Government Code, sec.253.001 in order to convey city-owned park
land to the University of Texas System ("UT"), a governmental entity with
 the power of eminent domain, assuming the parties to the transaction take
 certain actions. The city and UT must agree that use of the property as a
 university campus is the paramount public use of the property. In addition,
 in order to establish its authority to condemn land already dedicated to
 a public use, UT should make a finding that the necessity to establish a
 UT campus in Longview is of paramount public importance and the campus cannot
 be practically accomplished in any other way. Furthermore, because the park
land was purchased with bond proceeds, the city should also consider limitations
 on its authority resulting from the underlying bond election and, at the
 very minimum, take steps to abandon the bond project. Local Government Code,
 sec.272.001(b) authorizes the city to convey the property to UT without
 complying with notice and bidding requirements, but at not less than fair
 market value. A commitment by UT "to establish and construct a localized
 campus on the property" would satisfy the dictates of article III, section
 52 of the Texas Constitution, but does not constitute the kind of fixed,
 ascertainable consideration required by sec.272.001(b). The city need not
 comply with Parks and Wildlife Code, sec.26.001 in order to convey an 
undeveloped
 tract purchased for but never used as a city park.


TRD-9706990