Opinions
Opinion #JC-0045. (RQ-1185).
Request from
Mr. James L. Pledger, Commissioner, Texas Savings and Loan Department, 2601
North Lamar, Suite 201, Austin, Texas 78705, regarding whether the notification
requirements in 12 .S.C. 4903(a)(3), (b) will supersede the notification requirements
in Texas Insurance Code article 21.50, section 1B(a) when the federal law
becomes effective in July 1999.
Summary.
The private-mortgage-insurance
notification requirements of federal law found in the Homeowners Protection
Act of July 29, 1998, Pub. L. No. 105-216, 112 Stat. 902 (to be codified at
12 U.S.C. 4903(a)(3), (b)) are consistent with those in state law found in
Texas Insurance Code article 21.50, section 1B(a). A loan servicer should
comply with the state requirements in Insurance Code article 21.50, section
1B(a), and in doing so, satisfies the federal requisites.
Opinion #JC-0046. (RQ-0013).
Request from
the Honorable Carole Keeton Rylander, Comptroller of Public Accounts, P.O.
Box 219, Austin, Texas 78767-0219, regarding authority of charitable organization
to conduct raffle that offers prize valued in excess of $50,000, and related
questions.
Summary.
Under the Charitable Raffle Enabling
Act, a qualified organization may raffle a prize valued in excess of $50,000
if the prize was not purchased by the organization and the organization gave
no consideration for the prize. If an organization purchases a prize, the
prize is subject to the $50,000 cap even if the funds used for the purchase
were donated. An organization may use a portion of the gross raffle proceeds
to pay the reasonable, incidental, and necessary expenses of conducting the
raffle from which the proceeds were raised, but ordinarily no raffle proceeds
may be used to fund subsequent raffles. The net proceeds of the raffle must
be spent for the charitable purposes of the organization.
Opinion #JC-0047. (RQ-0040).
Request from
the Honorable Michael P. Fleming, Harris County Attorney, 1019 Congress, 15th
Floor, Houston, Texas 77002-1700, regarding weather the state or a county
must reimburse a state district judge for expenses incurred by the judge in
defending a mandamus action.
Summary.
Neither the state nor a county
is required to reimburse a state district judge for legal expenses incurred
by the judge in defending a mandamus action. Section 74.141 of the Government
Code does not obligate the state to pay for the defense of a state district
judge when the judge retains private counsel without the prior approval of
the Attorney General. While the county has no express statutory authority
to provide legal counsel for a state district judge, a county has the authority
to do so under common law if the commissioners court determines that legitimate
county interests are at stake in the action. Under the common law, a county
may reimburse a district judge for legal fees incurred in an action if the
commissioners court finds (i) that the suit involved a county interest requiring
a vigorous defense, or, conversely, that paying the legal fees serves a county,
not merely the judge's private, interest and (ii) that the judge committed
the alleged act or omission that was the basis of the lawsuit while acting
in good faith and within the scope of official duties.
Opinion #JC-0048. (RQ-1197).
Request from
the Honorable Kip Averitt, Chair, Financial Institutions Committee, Texas
House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, regarding
authority of a home-rule city to adopt an ordinance prohibiting organized
pigeon shoots.
Summary.
The City of Carrollton may not
pass an ordinance forbidding the killing of feral pigeons, since such killing
is explicitly authorized by section 64.002(b) of the Parks and Wildlife Code.
The holding of an "organized pigeon shoot" may constitute cruelty to animals,
which is prohibited by section 42.09 of the Penal Code. This office cannot
answer in the abstract the question of whether a city ordinance regulating
or prohibiting such pigeon shoots is preempted by section 1.08 of the Penal
Code. However, section 1.08 does not prohibit all city legislation on a subject
considered in the Penal Code, so long as the state law and the city ordinance
are not in conflict.
Opinion #JC-0049. (RQ-1172).
Request from
Ms. Deborah Hammond, LMSW-ACP, Chair, Texas State Board of Social Worker Examiners,
1100 West 49th Street, Austin, Texas 78756-3183, regarding whether section
50.023(e) of the Human Resources Code permits a person originally licensed
without an examination, whose license has expired for more than a year, to
reapply for a new license without an examination.
Summary.
Section 50.023(e) of the Human
Resources Code permits a person originally licensed without an examination
whose license has expired for more than a year to reapply for a new social
work license without an examination. The Texas State Board of Social Worker
Examiners' rule on reapplication, to the extent it requires an applicant originally
licensed without an examination to take an examination, is invalid.
Opinion #JC-0050. (RQ-1179).
Request from
Mr. John R. Speed, P.E., Executive Director, Texas Board of Professional Engineers,
P.O. Box 18329, Austin, Texas 78760-8329, regarding whether the federal Americans
with Disabilities Act precludes the Texas Board of Professional Engineers
from requiring an examinee, who seeks modifications to an examination, to
submit proof of disability, and related questions.
Summary.
The federal Americans with Disabilities
Act requires the Texas Board of Professional Engineers, which administers
a national engineering examination, to consider prospective examinees' requests
for special accommodations. The Board may require an examinee to provide advance
notice and documentation of the examinee's disability and need for any accommodation
requested. The examinee is responsible for requesting specific accommodations.
The Board may seek second opinions regarding such requests. Generally, the
Board must bear the cost of special accommodations. Federal regulations permit
a public entity that administers an examination to refuse to offer an auxiliary
aid if the entity can demonstrate that offering the auxiliary aid would fundamentally
alter the measurement of the skills or knowledge the examination is intended
to test or would result in an undue burden. The authority of a public entity
to refuse requests for other kinds of examination accommodations is less clear.
The fact that a particular accommodation is unduly burdensome does not excuse
an entity administering an examination from making other accommodations that
would not be unduly burdensome.
Opinion #JC-0051. (RQ-1181).
Request from
Mr. John R. Speed, P.E., Executive Director, Texas Board of Professional Engineers,
P.O. Drawer 18329, Austin, Texas 78760-8329, regarding whether the Board
of Professional Engineers is required to determine whether individuals seeking
licensure in Texas pursuant to the North American Free Trade Agreement are
citizens or permanent residents of the United States.
Summary.
The Board of Professional Engineers
must verify the immigration status of Canadian and Mexican nationals who are
physically present in this country seeking licensure in Texas to determine
their eligibility for a professional license in accordance with the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, as amended.
The Board may not deny licensure to Canadian or Mexican nationals solely because
they are not citizens or permanent residents of the United States.
Opinion #JC-0052. (RQ-0033).
Request from
the Honorable Gary L. Walker, Chair, Land and Resource Management Committee,
Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, regarding
whether development of an assured-isolation facility for low-level radioactive
waste would satisfy the requirements of the Texas Low-Level Radioactive Waste
Disposal Compact, and whether a law enacted for the purpose of precluding
private disposal facilities from accepting waste generated by the U.S. Department
of Energy would be valid.
Summary.
The development of an assured-isolation
facility complies with the state's current obligations under Texas Low-Level
Radioactive Waste Disposal Compact to manage and to provide for the disposal
of low-level radioactive waste. Assured isolation does not effect the permanent
isolation or disposal of low-level radioactive waste, and therefore it does
not currently satisfy the state's obligation under the Compact to dispose
of the waste. Whether an assured isolation facility will ultimately become
a legally viable option for the disposal of low-level radioactive waste, and
thereby satisfy the Compact, simply cannot be predicted. An attempt by Texas
purposely to preclude private low-level radioactive waste disposal companies
in Texas from contracting with the United States Department of Energy to dispose
of DOE low-level radioactive waste is limited by the Supremacy and Commerce
Clauses of the United States Constitution. However, section 401.203 of the
Health and Safety Code, which allows only state entities to be licensed to
dispose of low-level radioactive waste, is constitutional.
TRD-9902912
Elizabeth Robinson
Assistant Attorney General
Office of the Attorney General
Filed: May 19, 1999
RQ-0064.
Request from the Honorable Patrick
B. Haggerty, Chair, Corrections Committee, Texas House of Representatives,
P.O. Box 2910, Austin, Texas 78768-2910, regarding allocation of revenue
by a municipality from hotel occupancy taxes. (Request #0064-JC)
RQ-0065.
Request from the Honorable Kim
Brimer, Chair, Business and Industry Committee, Texas House of Representatives,
P.O. Box 2910, Austin, Texas 78768-2910, regarding whether the operation
of a car-buyer's website violates section 5.03 of article 4413(36), V.T.C.S.,
the Motor Vehicle Commission Code. (Request #0065-JC)
TRD-9902913
Elizabeth Robinson
Assistant Attorney General
Office of the Attorney General
Filed: May 19, 1999
Requests for Opinions