Opinions

Opinion No. JC-0085. Ms. Kristen Klein, Guadalupe County Auditor, 307 West Court, Suite 205, Seguin, Texas 78155, The Honorable Frank H. Bass, Jr., Montgomery County Attorney, Courthouse, 301 North Main Street, 3rd Floor Conroe, Texas 77301, Re: Authority of a commissioners court to set salaries for employees of a juvenile probation department and related questions (RQ-963).

Summary. Local Government Code section 111.094 gives a commissioners court only the authority to set the dollar amount of the county funds which it will expend on the juvenile probation department. The commissioners court does not have general supervisory authority over the juvenile board, an independent entity, and therefore does not have authority over the board's employment decisions or over individual line items in the budgets of programs under the board's jurisdiction, such as the juvenile probation department or juvenile detention department. The commissioners court's power of review over the juvenile probation department is limited to a review of the amount of county funds in that department's budget on an abuse of discretion standard. Consequently the juvenile board, and not the commissioners court, has authority over the employment decisions, travel policies, and general management and financial decisions regarding a juvenile probation department, juvenile detention department, or juvenile detention facility. Further, the commissioners court has no authority to approve the expenses of programs under the jurisdiction of the juvenile board before paying such claims, or to approve amendments of the board's budget. General procedure for the monitoring and review of juvenile board finances and fiscal policy are to be found in the rules promulgated by the Texas Juvenile Probation Commission at title 37 Texas Administrative Code, chapter 341. While a juvenile board might, if it so chose, adopt requirements of board approval of the payment of various claims as part of its fiscal policy, it is not required by statute to do so. Budget amendments, however, require formal board action of equal dignity with the procedure for budget adoption outlined in section 140.004 of the Local Government Code. The term "expenses" in section 152.1001(d) of the Human Resources Code a part of the section establishing the Guadalupe County Juvenile Board is, like the general expenses provision at section 152.0004 of the Human Resources Code, to be broadly construed.

Opinion No. JC-0086. The Honorable Carole Keeton Rylander, Comptroller of Public Accounts, L.B.J. State Office Building, 111 E. 17th Street, Austin, Texas 78774, Re: Constitutionality of chapter 159 of the Tax Code and related questions (RQ-1133)

Summary. The tax established by chapter 159 of the Tax Code is, pursuant to the decision of the Texas Court of Criminal Appeals in Stennett v. State, 941 S.W.2d 914 (Tex. Crim. App. 1996) (en banc), a criminal punishment that cannot be imposed "in a separate proceeding from that in which other criminal punishments for the same offense are imposed." Id. at 917. The Court of Criminal Appeals has further held in Ex parte Ward, 964 S.W.2d 617 (Tex. Crim. App.), cert. denied, 119 S. Ct. 66 (1998), that for the purposes of the Double Jeopardy Clause of the Fifth Amendment, jeopardy attaches only upon "full payment of the tax or a pay arrangement with the comptroller's office for the remaining amount due." Id. at 632. Pursuant to Stennett and its progeny, once jeopardy has attached in a criminal proceeding, the Comptroller may not thereafter attempt to collect chapter 159 taxes. Since, under Ward, jeopardy will not attach on partial payment of the tax, there is no point short of full payment at which collection of taxes due and owing under chapter 159 constitutes punishment for double jeopardy purposes so as to preclude subsequent criminal prosecution. Criminal prosecution by one sovereign, the United States, and tax collection by another, the State of Texas, does not implicate the Double Jeopardy Clause. The Comptroller may not refuse tender of payment of taxes due and owing under chapter 159. So long as there has not been full payment of the tax, which event triggers the attachment of jeopardy, the Double Jeopardy Clause is not implicated whether or not the Comptroller withdraws the civil referral and refunds the taxes collected. Generally, partial payments need not be refunded unless criminal prosecution has occurred before such payments were made. If the statute of limitations runs before the taxpayer files a claim for any impermissible payments, the taxpayer's claim is barred. However, if jeopardy has attached by reason of full payment, and the statute thereafter runs, the fact that the taxpayer may not get back his money has no effect on the state's subsequent inability to prosecute the underlying criminal case.

Opinion No. JC-0087. The Honorable James M. Kuboviak, Brazos County Attorney, 300 East 26th Street, Suite #325, Bryan, Texas 77803, Re: Whether section 154.025, Local Government Code, prohibits issuance of salary warrant to justice of the peace against whom judgment has been entered for delinquent property taxes (RQ-0012)

Summary. Section 154.025 of the Local Government Code prohibits the drawing of a warrant on a county fund in favor of a justice of the peace against whom a judgment has been entered for delinquent property taxes until the justice is notified that the debt is outstanding and the debt is paid.

Opinion No. JC-0088. The Honorable David M. Motley, Kerr County Attorney, County Courthouse, Suite BA-103, 700 Main Street, Kerrville, Texas 78028, Re: Assessment of filing fees for medication petition hearings held pursuant to section 574.106 of the Health and Safety Code (RQ 0019)

Summary. Because medication hearings pursuant to section 574.106 of the Health and Safety Code adjudicate different rights than and consider different issues and evidence than commitment hearings pursuant to section 574.034 or 574.035 of the same code, and require a separate application to the court, the assignment to such hearings of separate cause numbers and the filing fees attendant thereon do not impermissibly impose fees in an original action.

Opinion No. JC-0089. The Honorable Susan D. Reed, Criminal District Attorney, Bexar County Justice Center, 300 Dolorosa, Fifth Floor, San Antonio, Texas 78205-3030, Re: Authority of county to expend public funds to retain registered lobbyist (RQ-0024)

Summary. Section 305.026 of the Government Code authorizes a county to expend public funds to retain the services of a registered lobbyist.

Opinion No. JC-0090. The Honorable David Counts, Chair, Committee on Natural Resources, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, Re: Validity of rule relating to location of water wells (RQ-0017)

Summary. A Texas Department of Licensing and Regulation rule requiring a water well to be located a minimum distance from a property line is within the scope of the Department's rule-making authority.

Opinion No. JC-0091. The Honorable Bill Ratliff, Chair, Finance Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, Re: Whether legislature constitutionally may exclude home schools from voucher system for private and parochial schools (RQ-0023)

Summary. The Texas Legislature may exclude home schools from a voucher system for private and parochial schools so long as it has a basis for that exclusion that bears a rational relationship to a legitimate public purpose. The decision of the Texas Supreme Court in Texas Education Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994), does not bar the legislature from enacting a law that excludes home schools from a voucher system for private and parochial schools.

Opinion No. JC-0092. The Honorable Bill Hill, Dallas County District Attorney, Civil Section, Administration Building, 411 Elm Street, Dallas, Texas 75202, Re: Whether chapter 312 of the Tax Code precludes a commissioners court from providing an economic development grant to a private company under section 381.004 of the Local Government Code pursuant to which the county makes payments to the company that are the economic equivalent of an abatement of real property taxes (RQ-1068)

Summary. Chapter 312 of the Tax Code neither precludes nor authorizes a commissioners court agreement to make payments of county funds to a private company that are the economic equivalent of an abatement of real property taxes. However, section 381.004 of the Local Government Code, which Dallas County cites as the basis for its authority to make such payments, neither expressly or impliedly authorizes a commissioners court to enter into an agreement of this kind. The legislative history indicates that the legislature did not intend section 381.004 to implement article III, section 52-a of the Texas Constitution and, moreover, confirms that the legislature did not intend section 381.004 to authorize county economic development loans and grants.

Opinion No. JC-0093. William R. Archer III, M.D., Commissioner of Health, Texas Department of Health, 1100 W. 49th Street, Austin, Texas 78756-3199, Re: Constitutionality of section 501.024 of the Health and Safety Code, which requires manufacturers and distributors of hazardous substances to register annually with the Texas Department of Health and pay a fee of $150.00 (RQ-1221)

Summary. Section 501.024 of the Texas Health and Safety Code, which requires persons who distribute hazardous substances in Texas, and manufacturers and repackers whose hazardous substances are distributed in Texas, to register annually with the Texas Department of Health and pay a fee of $150.00, is neither preempted by federal law nor violative of the Commerce Clause of the United States Constitution

Opinion No. JC-0094. The Honorable David P. Weeks, Walker County Criminal District Attorney, P.O. Box 1659, Huntsville, Texas 77342, Re: Whether a district clerk may, pursuant to court order, decline to file divorce petitions of inmates who attempt to satisfy the county residency requirement of section 6.301 of the Family Code based on time served in prison (RQ-0020)

Summary. A district clerk is not authorized to refuse to file inmate divorce petitions. A district judge may have the authority to order a district clerk to refuse to file inmate divorce petitions that attempt to satisfy the county residency requirement of section 6.301 of the Family Code based on time served in prison, but a blanket order authorizing a district clerk to decline to file such divorce petitions would raise constitutional concerns and may be impracticable given that in some cases an inmate may be able to establish that he or she is a bona fide resident of the county. However, a carefully crafted administrative order implementing procedures to identify and dismiss unmaintainable inmate divorce petitions on an expedited basis would pass constitutional muster.

Opinion No. JC-0095. The Honorable J.E. Buster Brown, Chair, Natural Resources Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711-2068, Re: Whether the Gulf Coast Waste Disposal Authority is a soil and water conservation district for purposes of article XVI, section 40 of the Texas Constitution, and related question: Reconsideration of Attorney General Letter Opinion No. 98-124 (RQ-0015)

Summary. The Gulf Coast Waste Disposal Authority is not a soil and water conservation district under the provisions of article XVI, section 40, of the Texas Constitution. Whether the simultaneous holding of the offices of municipal judge and director of the Gulf Coast Waste Disposal Authority is of benefit to the State of Texas presents questions of fact which cannot be resolved in the opinion process. Attorney General Letter Advisory No. 31 (1973) is overruled.

TRD-9905020

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: August 11, 1999