TITLE attorney-general

Opinion #JC-0001. (RQ-1016). The Honorable Michael P. Fleming, Harris County Attorney, 1019 Congress, 15th Floor Houston, Texas 77002-1891, regarding whether a racetrack admission fee collected by a county to distribute to municipalities pursuant to the Texas Racing Act, see Tex. Rev. Civ. Stat. Ann. art. 179e, 6.17(a) (Vernon Supp. 1999), violates article VIII, section 1(f) of the Texas Constitution.

Summary. The racetrack admission fee set forth in article 179e, section 6.17(a) of the Revised Civil Statutes that a county is authorized to collect to distribute to municipalities in the county is an occupation tax. Whether the admission fee runs afoul of the limitations on county and municipal occupation taxes set forth in article VIII, section 1(f) of the Texas Constitution depends upon whether the state has imposed an occupation tax on racetracks. The determination whether the state has imposed an occupation tax on racetracks involves questions of fact and cannot be resolved by the Attorney General as a matter of law.

Opinion #JC-0002. (RQ-1194). The Honorable Carole Keeton Rylander, Comptroller of Public Accounts, Office of the Comptroller, LBJ State Office Building, Austin, Texas 78774, regarding Comptroller's adjustment of property tax findings for a school district pursuant to section 42.257 of the Education Code.

Summary. Pursuant to section 42.257 of the Education Code, the Commissioner of Education shall request the Comptroller to adjust taxable property values for a school district that were reported to the Commissioner for purposes of allocating the foundation school fund if a final determination of an appeal of tax liability under Tax Code chapter 42 results in a reduction in the taxable value of property exceeding five percent of the total taxable value of property in the school district for that tax year as determined under subchapter M, chapter 403, Government Code. Because the final determination of an appeal by Houston Lighting & Power Co. of its tax liability to the Dickinson In- dependent School District did not result in a reduction of taxable value of property in the school district as reported to the Commissioner of Education, the Comptroller has no duty under section 42.257 of the Education Code to adjust the taxable property values for the district that were reported to the Commissioner of Education.

Opinion #JC-0003. (RQ-1201). William R. Archer III, M.D., Commissioner of Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199, regarding binding effect of government agency rules on other state entities.

Summary. State entities, like other parties, are bound by rules properly promulgated by an administrative agency to which the legislature has given the necessary regulatory authority, unless specifically exempted therefrom.

Opinion #JC-0004. (RQ-887). The Honorable Judith Zaffirini, Chair, Human Services Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, regarding whether a county is authorized to invest county permanent school fund proceeds in "pass- through" mortgage-backed securities at an interest rate that is below market rate for comparable securities to assist in providing low-income housing in the county.

Summary. A county's plan to invest county permanent school fund proceeds in "pass-through" mortgage-backed securities at an interest rate that is below market rate for similar securities available in the market in order to assist in providing low-income housing in the county is not consistent with the county's trustee duties with respect to the fund under article VII, section 6 of the Texas Constitution.

Opinion #JC-0005. (RQ-1160). The Honorable Judith Zaffirini, Chair, Human Services Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, regarding purchase of vehicles by Laredo Police Department with forfeiture funds received pursuant to article 59.06(c) of the Code of Criminal Procedure.

Summary. The Laredo City Council has no authority to require the Laredo Police Department to purchase vehicles with forfeiture funds distributed to it pursuant to article 59.06 of the Code of Criminal Procedure. The Laredo Police Department may, however, purchase vehicles from such funds should it wish to do so.

Opinion #JC-0006. (RQ-1205). The Honorable Jeff Wentworth, Chair, Committee on Nominations, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, regarding whether the resign-to-run provision in Water Code section 49.072 applies to a member of the Board of Directors of the Edwards Aquifer Authority.

Summary. A director of the Edwards Aquifer Authority who filed as a candidate to run for another office is subject to section 49.072 of the Water Code, providing that a director who becomes a candidate for another office is no longer qualified to serve as director. His disqualification as director creates a vacancy to be filled by the board, but the disqualified director will continue to perform the duties of his office pursuant to article XVI, section 17 of the Texas Constitution until his successor has qualified for office.

Opinion #JC-0007. (RQ-1202). William R. Archer III, M.D., Commissioner of Health, Texas Department of Health, 1100 West 49th Street Austin, Texas 78756-3199, regarding whether the federal Nutrition Labeling and Education Act of 1990 preempts Texas Health and Safety Code section 434.007.

Summary. The federal Nutrition Labeling and Education Act of 1990, 21 U.S.C. 343-1(a) (1994), does not preempt Texas Health and Safety Code section 434.007, which establishes standard weights for bread loaves, at least as a matter of law.

Opinion #JC-0008. (RQ-1219). The Honorable Ken Oden, Travis County Attorney, P.O. Box 1748, Austin, Texas 78767, regarding whether section 15(g) of the Bail Bond Act, Tex. Rev. Civ. Stat. Ann. art. 2372p-3 (Vernon Supp. 1999), prohibits an attorney from advertising in the Bail Bond section of the telephone book yellow pages.

Summary. An attorney who merely advertises that he or she is permitted by law to execute bail bonds for persons he or she actually represents in criminal cases does not violate section 15(g) of the Bail Bond Act, Tex. Rev. Civ. Stat. Ann. art. 2372p-3 (Vernon Supp. 1999). Whether a particular advertisement runs afoul of section 15(g) involves questions of fact that cannot be resolved in an attorney general opinion.

Opinion #JC-0009. (RQ-1188). The Honorable Ken Armbrister, Chair, Committee on Criminal Justice, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, regarding constitutionality of Tax Code section 26.05, regarding notice and hearing requirements for property tax increase.

Summary. Tax Code section 26.05(d), which requires public notice and hearing of intended property tax increases by political subdivisions, is not prohibited by article VIII, section 21 of the Texas Constitution.

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: March 3, 1999

Requests for Opinions

RQ-0024. Request #0024-JC. Request from the Honorable Susan D. Reed, Criminal District Attorney, Bexar County Justice Center, 300 Dolorosa, Fifth Floor San Antonio, Texas 78205-3030, regarding whether a political subdivision may expend public funds to retain the services of a registered lobbyist.

RQ-0025. Request #0025-JC. Request from Bruce Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, P.O. Box 2018, Austin, Texas, 78768-2018, regarding whether "surgery" for purposes of the Texas Optometry Act, V.T.C.S., article 4551-1.01, et seq. refers only to "cutting operations.": Reconsideration of Attorney General Opinion DM-415 (1996).

RQ-0026. Request #0026-JC. Request from the Honorable Michael J. Guarino, Criminal District Attorney, Galveston County Courthouse, 722 Moody, Suite 300, Galveston, Texas 77550, regarding whether a certificate of deposit may be offered as a prize in a raffle conducted under the provisions of article 179f, V.T.C.S.

TRD-9901292

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: March 2, 1999