Opinions
Opinion Number JC-0168 (RQ-0088-JC).
Requested
by The Honorable Charles D. Penick, Bastrop County Criminal District Attorney,
804 Pecan Street, Bastrop, Texas, 78602, concerning liability of a prosecutor
with regard to the collection of a hot check, and related questions.
Summary.
A civil action against a prosecutor
alleging failure to prosecute or negligence in the prosecution of an action
to collect on a bad check would be barred by the doctrine of prosecutorial
immunity.
Payment by a prosecutor's office of restitution to a merchant for whom
the prosecutor, in error, had failed to collect from the writer of a bad check
is impermissible, both because the hot check fund statute does not permit
it and because, absent a cognizable claim, such a payment would be an impermissible
grant of public funds under article III, section 51 of the Texas Constitution.
Opinion Number JC-0169 (RQ-0098-JC).
Requested
by The Honorable Tim Curry, Tarrant County Criminal District Attorney, Justice
Center, 401 West Belknap, Fort Worth, Texas, 76196-0201, concerning whether
a governmental body may permit members of the public to comment at public
meetings on matters not specified in the posted meeting notice.
Summary.
"Public comment" provides sufficient
notice under the Open Meetings Act of the subject matter of "public comment"
sessions where the general public addresses the governmental body about its
concerns and where the governmental body does not comment or deliberate except
as authorized by section 551.042 of the Government Code. "Employee briefing"
or "staff briefing" does not give adequate notice of subjects presented to
a governmental body by employees or staff members.
Opinion Number JC-0170 (RQ-0114-JC).
Requested
by The Honorable Russell W. Malm, Midland County Attorney, 200 West Wall Street,
Suite 104, Midland, Texas, 79701, concerning whether an appropriation of general
revenue funds to The University of Texas of the Permian Basin for the construction
of a museum building is precluded by article VII, section 18(i) of the Texas
Constitution.
Summary.
The University of Texas System component
institutions and other institutions listed in article VII, section 18 of the
Texas Constitution may not receive any funds from the general revenue of the
state for construction of permanent improvements. See Texas Constitution Article
VII, §18(a), (b), and (i). However, the legislature may appropriate general
revenue funds for this purpose if it does so "by two-thirds vote of each house,
in cases of demonstrated need, which need must be clearly expressed in the
body of the act." Id. 18(i)(2). Because the act appropriating general revenue
funds for the construction of a museum building on the campus of The University
of Texas of the Permian Basin does not express a need for the project, the
appropriation is precluded by the article VII, section 18(i) limitation on
appropriations.
Opinion Number JC-0171 (RQ-0100).
Requesting
by Mr. Charles W. Heald, P.E., Executive Director, Texas Department of Transportation,
125 East 11th Street, Austin, Texas, 78701-2483, concerning whether counties
may bid on state highway maintenance contracts.
Summary.
A county may not submit a bid on
a state highway maintenance contract that the Texas Transportation Commission
has put out for competitive bidding, because counties have neither express
or implied statutory authority to bid on a state highway maintenance contract.
Moreover, a highway project that receives federal aid is subject to a federal
regulation codified at 23 C.F.R. 635.112(e) (1999), which bars public agencies
from bidding in competition with private contractors.
Opinion Number JC-0172 (RQ-0103-JC).
Requested
by The Honorable Charles D. Penick, Bastrop County Criminal District Attorney,
804 Pecan Street, Bastrop, Texas, 78602, concerning whether a commissioners
court may accept and maintain roads in a gated subdivision.
Summary.
A commissioners court may accept
a dedication to the county of private roads within a gated subdivision, but
the roads will no longer be private roads after the acceptance. While the
county may not maintain private roads, it may maintain the roads after they
are dedicated as public roads. Access to a public road may not be restricted
by the landowner or owners on either side of it. Thus, after the roads within
a gated subdivision become public roads, the land owners may not block access
to them by means of a locked gate.
TRD-200000510
Elizabeth Robinson
Assistant Attorney General
Office of the Attorney General
Filed: January 26, 2000
RQ-0168-JC.
Requested by The Honorable Ron
Lewis, Chair, Energy Resources Committee, Texas House of Representatives,
P.O. Box 2910, Austin, Texas, 78768-2910, concerning whether a governmental
body may meet with its attorney in executive session to discuss a pending
contract (Request No. 0168-JC).
Briefs requested by February 20, 2000
RQ-0169-JC.
Requested by The Honorable Florence
Shapiro, Chair, State Affairs Committee, Texas State Senate, P.O. Box 12068,
Austin, Texas, 78711, concerning whether a police officer may take possession
of a runaway who is 17 years of age (Request No. 0169-JC).
Briefs requested by February 20, 2000
RQ-0170-JC.
Requested by: The Honorable Donna
J. Gordon, Houston County Attorney, 100 North 6th, Suite 105, Crockett, Texas,
75835, concerning whether the area "encompassed by a school district" under
section 130.906, Local Government Code, refers to the total area of the district
or the portion of the district that includes a national forest (Request No.
0170-JC).
Briefs requested by February 19, 2000
RQ-0171-JC.
Requested by: The Honorable Richard
J. Miller, Bell County Attorney, P.O. Box 1127, Belton, Texas, 76513, concerning
whether an elected junior college trustee may simultaneously serve as a municipal
judge (Request No. 0171-JC).
Briefs requested by February 19, 2000
TRD-200000511
Elizabeth Robinson
Assistant Attorney General
Office of the Attorney General
Filed: January 26, 2000
Requests for Opinions