TITLE attorney-general

Opinion # JC-0070. (RQ-923). Mr. Frank DiTucci, Executive Officer, Texas Polygraph Examiners Board, P.O. Box 4087, Austin, Texas 78773-0001, Re: Whether a polygraph examiner who in the course of an examination learns that a child has been abused or neglected must report that information to the appropriate authorities, and related questions.

Summary. Section 261.101 of the Family Code prevails over a conflicting statute, such as section 19A of the Polygraph Examiners Act, article 4413(29cc) of the Revised Civil Statutes, unless the legislature has explicitly indicated to the contrary. Because the legislature has not expressly excepted the information a polygraph examiner acquires during the course of a polygraph examination from the scope of section 261.101 of the Family Code, a polygraph examiner must report information indicating that a child has been or may have been abused or neglected in accordance with section 261.103 of the Family Code. The examinee's local community supervision and corrections officer or parole officer is not an "agency designated by the court to be responsible for the protection of children" for purposes of section 261.103 of the Family Code, unless a court has specifically ordered otherwise. A court probably would find that a polygraph examinee is not entitled to counsel during the course of a polygraph examination under section 261.101 of the Family Code and, consequently, that conducting the examination without counsel does not violate the examinee's due-process right. The attorney- client privilege applies to the testimony of a polygraph examiner hired by an attorney in certain circumstances. An examinee may have a right to claim the privilege against self-incrimination during the course of a polygraph examination. If the state wishes to compel an examinee who has legitimately invoked the privilege to respond to the question, the state must determine whether to provide immunity for the confession.

Opinion #JC-0071. (RQ-1155). The Honorable Donna J. Gordon, Houston County Attorney, 100 North 6th Street, Suite 105, Crockett, Texas 75835, Re: Whether a county may pay the autopsy expenses performed as part of an inquest into a death that occurs in a neighboring county.

Summary. A county may not contract under the Interlocal Cooperation Act, Tex. Gov't Code Ann. ch. 791 (Vernon 1994 & Supp. 1999), to charge for autopsies performed under chapter 49 of the Code of Criminal Procedure on residents of neighboring counties who die in the former county's hospital. Nor may a county contract to conduct or pay for autopsies ordered under chapter 49 of the Code of Criminal Procedure for its own residents who die in a neighboring county hospital.

Opinion #JC-0072. (RQ-1170). The Honorable Elliott Naishtat Chair, Committee on Human Services, Texas House of Representatives, P.O. Box 2910, Austin, Texas, 78768-2910, Re: Whether the Texas Board of Human Services may adopt a rule that authorizes a personal-care facility to provide "occasional nursing services" to its residents.

Summary. To the extent the Texas Board of Human Services has adopted a rule (40 Tex. Admin. Code 92.2(b)(2) (1998)) that authorizes a personal-care facility to furnish nursing services beyond assisting with personal needs or maintenance, administering medications, or generally supervising residents' physical and mental well-being, the rule is ultra vires.

Opinion #JC-0073. (RQ 1171). The Honorable Rob Hofmann, Mason County Attorney, County Courthouse, P.O. Box 157, Mason, Texas 76856, Re: Whether a commissioners court may accept a donation conditioned upon spending the money to improve a particular county road.

Summary. A commissioners court has authority under section 252.214 of the Transportation Code to accept a donation for improving a specific county road subject to reasonable conditions. It is a matter for the exercise of good faith discretion by the commissioners court, subject to judicial review for abuse of discretion, to determine whether the condition attached to a particular donation is reasonable.

Opinion #JC-0074. (RQ-0011). The Honorable Irma Rangel, Chair, Committee on Higher Education, Texas House of Representatives, P.O. Box 2910 Austin, Texas 78768-2910, The Honorable Delma Rios, Kleberg County Attorney, P.O. Box 1411, Kingsville, Texas 78364, Re: Whether a public school employee may simultaneously serve as a county commissioner and draw a salary therefor.

Summary. A public school teacher or administrator may simultaneously hold the office of county commissioner without renouncing the salary attached to the latter position. Attorney General Opinion H-6 (1973) is overruled.

Opinion #JC-0075. (RQ 0027). The Honorable B. J. Shepherd, District Attorney, 220th Judicial District, P.O. Box 368, Meridian, Texas 76665, Re: Permissible methods of disposing of property forfeited to the state under chapter 59 of the Code of Criminal Procedure.

Summary. Given that the District Attorney for the 220th Judicial District has executed a local agreement with the Bosque County Sheriff and the Department of Public Safety, article 59.06(a) of the Code of Criminal Procedure does not require the sale of the property forfeited pursuant to chapter 59 of that code to be conducted by sheriff's auction.

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: July 7, 1999