TITLE attorney-general

Opinion #JC-0059. (RQ-0054). Request from the Honorable Ken Armbrister Chair, Committee on Criminal Justice Texas State Senate P.O. Box 12068 Austin, Texas 78711 regarding whether article 4582b of the Revised Civil Statutes and Texas Funeral Service Commission rules preclude a funeral establishment designating the embalming facilities of another funeral establishment as its embalming room, from retaining a licensed embalmer as an independent contractor, and related questions.

Summary. Because article 4582b requires each funeral establishment to have an on-site embalming room, see Texas Revised Civil Statutes Annotated Article 4582b, §4(C) (Vernon Supp. 1999), a funeral establishment may not designate an off-site embalming facility to satisfy this statutory requirement. However, a licensed embalmer may work as an independent contractor for a funeral establishment on the premises of the funeral establishment or in the embalming room of another licensed funeral establishment.

Neither article 4582b nor the Texas Funeral Service Commission rules, see 22 TAC Chapter 203 (1998), require a funeral establishment to make disclosures about the location of embalming when permission to embalm is given orally. Although permission to embalm given to the funeral establishment is sufficient and the embalmer may rely on the permission obtained by the funeral establishment, an embalmer who embalms a body as an independent contractor will not necessarily escape discipline under §3(H)(11) of article 4582b if the funeral establishment failed to obtain written or oral permission, or failed to make a reasonable effort to obtain permission, to embalm.

Both article 4582b and the Commission rules require a funeral establishment to provide a customer with a retail price list for items or services provided by the funeral establishment. These provisions do not require an embalmer who has no contractual relationship with the customer to make price disclosures to the customer nor do they generally require the funeral establishment to disclose the price charged to the funeral establishment for embalming by the embalmer.

If the Commission employs in-house an investigator, the investigator must meet one of the three qualifications listed in §6D(f)(1)-(3) of article 4582b. A person employed by the Commission as an inspector may serve as an investigator if he or she meets only one of these three qualifications.

Opinion #JC-0060. (RQ-0063). Request from the Honorable Jack Skeen, Jr., Smith County Criminal District Attorney, Smith County Courthouse, Tyler, Texas 75702, regarding whether a committee appointed by a commissioners court to recommend the selection of an architect is subject to the Open Meetings Act.

Summary. An "Evaluation Committee" appointed by the Smith County Commissioners Court to recommend the selection of an architect and negotiate a contract with the selected firm is, under the facts described, a "governmental body" subject to the Open Meetings Act. If, however, the county judge and one commissioner are excluded from the Committee, it becomes merely an advisory body not subject to the Act.

Opinion #JC-0061. (RQ-1193). 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 county commissioner may be paid by the county for driving an ambulance for the county emergency medical services department

Summary. Local Government Code §81.002 precludes a county commissioner from receiving payments from the county for driving an ambulance for the county emergency medical services department.

Opinion #JC-0062. (RQ-1054). Request from the Honorable Michael P. Fleming, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas 77002-1891, regarding whether interest on a prosecutor's hot-check fund may be severed from the principal and accrue to the county's general fund.

Summary. In accordance with Local Government Code §113.021(c), interest that accrues on the principal of a prosecutor's hot-check fund, a statutory fund established under article 102.007(f) of the Code of Criminal Procedure, must be severed from the principal. The interest accrues instead "for the benefit of the county." Attorney General Opinion #JM-632 (1987) is modified to the extent its reasoning is inconsistent with this opinion.

Opinion #JC-0063. (RQ-1186). Request from the Honorable Carl E. Lewis, County Attorney, Nueces County Courthouse, 901 Leopard, Room 206, Corpus Christi, Texas 78401-3680, regarding method of calculating "gross income" of local public official's child under chapter 171 of the Local Government Code.

Summary. Under chapter 171 of the Local Government Code, a local public official is considered to have a substantial interest in a business entity if a person related to the official within the first degree by consanguinity or affinity has a substantial interest in a business entity. In calculating the "gross income" of a public official's child under chapter 171 of the Local Government Code, the earnings of a minor child or a dependent child form part of the child's gross income, not the public official's gross income. A "substantial interest" in a business entity or in real property for purposes of chapter 171 is an interest in existence when the governmental body takes up the matter that will affect the business entity or real property. When a person's substantial interest in a business entity is based solely on ownership, that person no longer has a substantial interest in the business after he or she has fully divested himself from that ownership interest. When a person's interest in a business entity is based on receipt of income, that person has a substantial interest in the business if he or she has received funds in excess of ten percent of his or her gross income during the twelve-month period prior to the time that the governmental body takes up the matter that will affect the business entity or real property.

Opinion #JC-0064. (RQ-1195). Request from Ms. Linda Cloud, Executive Director, Texas Lottery Commission, P.O. Box 16630, Austin, Texas 78761-6630, regarding whether the Lottery Commission may renew an expired license to conduct bingo games or to sell lottery tickets, and related questions.

Summary. The Lottery Commission may renew a license to conduct bingo games or a license to sell lottery tickets only if the licensee mailed or faxed a sufficient application on or before the date the original license was to expire. The Lottery Commission has no authority, express, implied, or in equity, to renew a license if the renewal application was untimely.

Opinion #JC-0065. (RQ-1213). Request from the Honorable J. Russell Ash, Reagan County Attorney, P.O. Box 924, Big Lake, Texas 76932, regarding whether a county commissioners court may choose to omit the funds described in §61.003(a)(1) and (2) of the Government Code from the list of programs to which a juror may donate jury- service reimbursement.

Summary. A county commissioners court may not choose to omit either of the funds described in §61.003(a)(1) or (a)(2) of the Government Code from the list of funds or programs to which a juror may donate jury-service reimbursement.

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: June 8, 1999

Requests for Opinions

RQ-0069. Request from the Honorable Florence Shapiro, Chair, Senate State Affairs Committee, Texas State Senate, P.O. Box 12068, Suite 3E.12, Austin, Texas 78711, regarding authority of the Texas Department of Transportation to restrict bidding specifications on behalf of a particular vendor (Request #0069-JC).

RQ-0070. Request from the Honorable Bob Turner, Chair, Committee on Public Safety, Texas House of Representatives, P.O. Box 2910, Suite E1.308, Austin, Texas 78768-2910, regarding authority of a municipality to impose restrictions on street vendors (Request #0070-JC).

RQ-0071. Request from the Honorable Arthur C. (Cappy) Eads, District Attorney, 27th Judicial District, P.O. Box 540, Belton, Texas 75613, regarding security requirements for insurance companies with multiple agents who write bail bonds (Request #0071-JC).

RQ-0072. Request from the Honorable Tony Garza, Chairman, Railroad Commission of Texas, 1701 North Congress Avenue, P.O. Box 12967, Austin, TX 78711-2967, regarding applicability of the vehicle barrier requirements of the Texas Aggregate Quarry and Pit Safety Act, Chapter 133, Natural Resources Code (Request #0072-JC).

TRD-9903369

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: June 9, 1999