TITLE attorney-general

Opinion #JC-0010. (RQ-1113). The Honorable Florence Shapiro, Chair, State Affairs Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, regarding whether a "Rules and General Conditions of Parole Release" contract that requires the parolee to "comply with Sex Offender Registration Program" in and of itself obligates a local law enforcement authority to register the parolee.

Summary. A parole contract that obligates a parolee to "comply with Sex Offender Registration Program" does not in and of itself impose a duty on a local law enforcement authority to register the parolee as a sex offender under the Sex Offender Registration Program in chapter 62 of the Code of Criminal Procedure.

Opinion #JC-0011. (RQ-1196). The Honorable Rene O. Oliveira, Chair, Committee on Ways & Means, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, regarding whether a school district may require minimum "poverty level wage" in contracts with district.

Summary. A school district may not require outside contractors with the district to pay their workers a minimum poverty level wage for work performed pursuant to a contract with the district governed by the requirements of chapter 2258 of the Government Code, which requires a minimum prevailing wage in contracts for public works.

Opinion #JC-0012. (RQ-1034). Ms. Doretta Conrad, Administrator, Texas State Board of Plumbing Examiners, P.O. Box 4200, Austin, Texas 78765, regarding whether section 5B(a) of the Texas Plumbing License Law, Tex. Rev. Civ. Stat. Ann. art. 6243-101 (Vernon Supp. 1999), authorizes the State Board of Plumbing Examiners to adopt plumbing codes of statewide applicability, and related questions.

Summary. Section 5B(a) of the Texas Plumbing Law, Tex. Rev. Civ. Stat. Ann. art. 6243-101 (Vernon Supp. 1999), incorporates by reference "the Southern Standard Plumbing Code, the Uniform Plumbing Code, and the National Standard Plumbing Code" as each existed in 1993, when section 5B was adopted. The 1993 adoption of section 5B effectively overrules Attorney General Opinion MW-545, which was issued prior to the enactment of section 5B. See Tex. Att'y Gen. Op. No. MW-545 (1982) at 3. Consequently, the Texas State Board of Plumbing Examiners has express authority under section 5B(a) to adopt a plumbing code of statewide applicability.

A municipality need not adopt any of the three codes named in section 5B(a). On the other hand, municipal standards may not vary "substantially" from the state standards that are incorporated by reference in section 5B(a). Whether a particular municipal standard that is not identical to state plumbing standards varies substantially from that state standard is a question of fact.

Any revisions to the three codes listed in section 5B(a) that have occurred since 1993 are not incorporated into state law. Accordingly, the Texas State Board of Plumbing Examiners may not adopt post-1993 revisions to the codes.

Opinion #JC-0013. (RQ-1222). The Honorable Frank Madla, Chair, Senate Committee on Intergovernmental Relations, Texas State Senate, P.O. Box 12068 Austin, Texas 78711-2068, regarding aplicability of section 130.008 of the Education Code, which allows high school students to obtain joint credit for certain public junior college courses, to persons attending a private school.

Summary. At present, a public junior college may offer courses for simultaneous high school-junior college credit only to a student "attending a high school operated by a school district," and as a result, may not offer such courses to private school students. The legislature may amend section 130.008 of the Education Code to extend joint-credit public junior college courses to private school students consistent with the Establishment Clause of the First Amendment to the United States Constitution.

Opinion #JC-0014. (RQ-1101). The Honorable Janelle M. Haverkamp, District Attorney, 235th Judicial District, Cooke County Courthouse, Gainesville, Texas 76240, regarding whether clip-on microphones for county deputy sheriffs' portable radios are "security hardware" that may be purchased with monies from the courthouse-security fund under article 102.017(d)(9) of the Code of Criminal Procedure.

Summary. Article 102.017(d)(9) of the Code of Criminal Procedure does not authorize a commissioners court to expend monies from the courthouse- security fund to purchase clip-on microphones for deputy sheriffs' portable radios.

Opinion #JC-0015. (RQ-1159). The Honorable Elton Bomer, Secretary of State Office of the Secretary of State, Executive Division, P.O. Box 12697, Austin, Texas 78711-2697, regarding whether, under Business Corporation Act article 5.17, a for-profit domestic business corporation may convert to a Texas nonprofit corporation organized under Texas Revised Civil Statutes articles 1396-1.01 through -11.01, and related questions.

Summary. A for-profit domestic corporation may, in accordance with article 5.17 of the Business Corporation Act, convert to a nonprofit corporation organized under the Non-Profit Corporation Act, Texas Revised Civil Statutes articles 1396-1.01 through -11.01, or a water-supply corporation, created under chapter 67 of the Water Code, if the owners of the converting entity approve the plan of conversion consistently with Business Corporation Act article 5.17(A)(1).

Opinion #JC-0016. (RQ-1199). The Honorable Robert A. Klaeger, Burnet County Attorney, 220 South Pierce, Burnet, Texas 78611-3136, regarding enforcement of traffic laws on privately owned streets.

Summary. Provisions in the Transportation Code, title 7, subtitle C, relating to the operation of a vehicle, apply only on public roadways and not on private roads or streets unless expressly applicable. Accordingly, the City of Meadowlakes has no authority to enforce state and municipal traffic laws on privately-owned streets within its boundaries. A peace officer has no authority to issue a citation for a traffic offense on the private streets, and if such a citation is issued, it may not be prosecuted. Article III, section 52 and article XI, section 3 of the Texas Constitution prohibit the City of Meadowlakes to use public monies to enforce state and municipal traffic laws on its private streets.

Opinion #JC-0017. (RQ-1165). Mr. Robert J. Huston, Chairman, Texas Natural Resource Conservation Commission, P.O. Box 13087, Austin, Texas 78711-3087 regarding whether section 361.0235 of the Health and Safety Code, banning the importation into Texas of hazardous waste generated in a foreign country, is constitutional.

Summary. Section 361.0235 of the Health and Safety Code, banning the importation into Texas of hazardous waste generated in a foreign country, violates the Commerce Clause of the United States Constitution.

Opinion #JC-0018. (RQ-1210). The Honorable Frank Madla, Chair, Committee on Intergovernmental Relations, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, regarding whether section 392.043 of the Local Government Code prohibits employees of housing authority from participating in affordable housing program administered by related nonprofit housing corporation.

Summary. Chapter 392 of the Local Government Code, the Housing Authorities Law, prohibits an employee of a housing authority from leasing or purchasing a home included in a housing project administered by a related housing corporation.

Opinion #JC-0019. (RQ-1134). The Honorable James M. Kuboviak, Brazos County Attorney, 300 East 26th Street, Bryan, Texas 77803, regarding whether a sheriff of a county governed by article 2372p-3 of the Revised Civil Statutes is required by Code of Criminal Procedure article 17.11, section 2 to refuse the bond of a bondsman licensed in the county when on notice that the bondsman is in default on a bond in another county.

Summary. A sheriff of a county governed by article 2372p-3 of the Revised Civil Statutes may not unilaterally refuse the bond of a bondsman licensed in the county on the basis that the bondsman is in default on a bond in another county.

Opinion #JC-0020. (RQ-1090). Mr. John R. Speed, P.E., Executive Director, Texas Board of Professional Engineers, P.O. Drawer 18329, Austin, Texas 78760-8329, regarding whether Texas Natural Resource Conservation Commission has authority under chapter 366 of the Texas Health and Safety Code to require certification of "site evaluators".

Summary. Chapter 366 of the Health and Safety Code, relating to the regulation of on-site sewage disposal systems, does not expressly or by necessary implication authorize the Texas Natural Resource Conservation Commission to regulate "site evaluators." The Commission's rules requiring the certification of site evaluators and otherwise regulating site evaluators are invalid.

Opinion #JC-0021. (RQ-1198). The Honorable Judith Zaffirini, Chair, Human Services Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, regarding whether certain provisions of the Texas Controlled Substances Act, Tex. Health & Safety Code Ann. ch. 481 (Vernon 1992 & Supp. 1999), that authorize warrantless administrative searches violate article I, section 9 of the Texas Constitution.

Summary. Neither section 481.078(e) nor section 481.081(e) of the Health and Safety Code on its face violates article I, section 9 of the Texas Constitution. A Texas court would examine the reasonableness of the inspection at issue in the particular challenge and determine if these statutes as applied run afoul of article I, section 9 of the Texas Constitution.

Opinion #JC-0022. (RQ-1223). The Honorable Richard J. Miller, Bell County Attorney, P.O. Box 1127, Belton, Texas 76513, regarding constitutionality of section 38.12(d)(2)(C) of the Penal Code, which prohibits an attorney from making a direct-mail solicitation of a criminal defendant within thirty days of his arrest.

Summary. A court would probably hold that section 38.12(d)(2)(C) of the Penal Code, which prohibits an attorney from sending a direct mail solicitation to a targeted criminal defendant or his relatives within thirty days of his arrest, fails to promote a substantial state interest under the test of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), and thus contravenes the First Amendment to the United States Constitution.

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: March 16, 1999

Requests for Opinions

RQ-0034. Request from The Honorable Tim Curry, Tarrant County Criminal District Attorney, Justice Center, 401 West Belknap, Fort Worth, Texas, 76196-0201, Regarding constitutionality of section 51.702(b), Government Code; whether a county may collect an additional $15.00 in court costs from a person convicted of a criminal offense; reconsideration of Attorney General Opinion DM-123 (1992) (Request Number 0034-JC).

RQ-0035. Request from The Honorable Jose R. Rodriguez, El Paso County Attorney, 500 East San Antonio, Room 203, El Paso, Texas, 79901, regarding whether a school district may award back pay to employees who were indicted and subsequently acquitted (Request Number 0035-JC).

RQ-0036. Request from The Honorable William H. Law, Polk County Auditor, 101 West Church Street, Livingston, Texas, 77351, regarding whether a county employee may be awarded vacation if he resigns on the day before his anniversary day (Request Number 0036-JC).

RQ-0037. Request from The Honorable Jim Solis, State Representative, Texas House of Representatives, P.O. Box 2910, Austin, Texas, 78768-2910, regarding whether a real property tax may be assessed on travel trailers (Request Number 0037-JC).

RQ-0038. Request from The Honorable David Dewhurst, Commissioner, Texas General Land Office, 1700 North Congress Avenue, Austin, Texas, 78701-1495, regarding whether moving a structure landward of a public beach constitutes an "improvement" to real property for purposes of section 312.204, Tax Code (Request Number 0038-JC).

RQ-0039. Request from The Honorable Jeff Wentworth, Chair, Nominations Committee, Texas State Senate, P.O. Box 12068, Austin, Texas, 78711-2068, regarding whether a student who is excused from public school for a temporary absence may be denied certain benefits (Request Number 0039-JC).

TRD-9901646

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: March 17, 1999

Withdrawal of Opinion

DM-494 (RQ-1021) is withdrawn as of March 16, 1999.

TRD-9901634

Elizabeth Robinson

Assistant Attorney General

Office of the Attorney General

Filed: March 17, 1999