Opinions
Opinion No. JC-0393
The Honorable James M. Kuboviak, Brazos County Attorney, 300 East 26th
Street, Suite #325, Bryan, Texas 77803
Re: Whether a defendant convicted of multiple class C misdemeanors who
defaults on the fines and court costs he or she is sentenced to pay and who
is therefore confined discharges the fines and court costs concurrently or
consecutively, and related questions (RQ-0338-JC)
S U M M A R Y
A misdemeanant who is confined when a court orders a term of confinement
to enforce the discharge of a fine or costs on a second conviction serves
the confinements concurrently unless the court orders the terms to be served
consecutively under article 42.08 of the Code of Criminal Procedure. See Tex.
Code Crim. Proc. Ann. arts. 42.08, 43.03(b) (Vernon Supp. 2001). On the other
hand, if the misdemeanant is ordered to be confined to enforce the discharge
of multiple fines or costs when he or she is not confined, the confinements
are served consecutively. If fines or costs are discharged consecutively,
the court's order must indicate that the confinements will run consecutively.
See id. art. 42.08(a). The court's order also should contain five elements,
which may be adapted to the circumstances of a confinement to enforce a default:
(1) the prior conviction's trial court number; (2) the correct name of the
court where the prior conviction was taken; (3) the prior conviction's date;
(4) the prior conviction's term; and (5) the prior conviction's nature. See
Banks v. State, 708 S.W.2d 460, 461 (Tex. Crim. App. 1986) (en banc).
A defendant convicted of multiple class C misdemeanors receives credit
for time spent in confinement prior to sentencing on each of the sentences
as though the time ran concurrently. See Hannington v. State, 832 S.W.2d 355,
356 (Tex. Crim. App. 1992) (en banc) (per curiam); Ex parte Bynum, 772 S.W.2d
113, 115-16 (Tex. Crim. App. 1989) (en banc) (per curiam).
Opinion No. JC-0394
The Honorable Michael A. Stafford, Harris County Attorney, 1019 Congress
Avenue, 15th Floor, Houston, Texas 77002-1700
Re: Whether Harris County Hospital District may provide discounted health
care to persons residing in Harris County, without regard to their immigration
or legal status (RQ-0341-JC)
S U M M A R Y
The Personal Responsibility and Work Opportunity Reconciliation Act of
1996 provides in 8 U.S.C. §1621 that undocumented aliens are ineligible
for state and local public benefits, with certain exceptions. Under this Act,
a state may provide that an alien not lawfully present in the United States
is eligible for any state or local benefit only through the enactment of a
state law after August 22, 1996, which affirmatively provides for such eligibility.
No Texas statute adopted before or after August 22, 1996, affirmatively provides
that residents of hospital districts are eligible for public benefits without
regard to immigration status. The Act therefore prohibits the Harris County
Hospital District from providing free or discounted nonemergency health care
to undocumented aliens, even if they reside within the district's boundaries.
Opinion No. JC-0395
The Honorable Sky Sudderth, District Attorney, 35th Judicial District,
Brown County Courthouse, Brownwood, Texas 76801
Re: Whether a district attorney may, by contract, bind the use of county
funds, and related question (RQ-0347-JC)
S U M M A R Y
A district attorney may not enter into a multiyear contract for office
equipment that requires the expenditure of county funds and that does not
permit the county to terminate the contract at the end of each year. Only
a county commissioners court may execute a contract that binds the county.
Additionally, a multiyear contract that does not either provide for levying
and collecting a tax to pay the interest and to create a sinking fund or permit
the county to terminate the contract at the end of each year violates article
XI, section 7 of the Texas Constitution.
Opinion No. JC-0396
Mr. Thomas A. Davis, Jr., Director, Texas Department of Public Safety,
5805 North Lamar Boulevard, Box 4087, Austin, Texas 78773-0001
Re: Whether a person who has been pardoned for a felony conviction is subject
to section 46.04 of the Penal Code, and related questions (RQ-0349-JC)
S U M M A R Y
For the purposes of section 46.04 of the Penal Code, which limits a convicted
felon's authority to possess a firearm, the term "convicted" denotes a felon
who has been proven guilty. See Tex. Pen. Code Ann. §46.04(a) (Vernon
1994). Nevertheless, a felon who has received a full pardon is not subject
to the disability imposed by section 46.04. Accordingly, a pardoned felon
may possess a firearm without violating section 46.04.
A convicted felon whose verdict has been set aside or who has been permitted
to withdraw a guilty plea under article 42.12, section 20 of the Code of Criminal
Procedure is not subject to section 46.04 of the Penal Code because the statute
releases such felon from "all penalties and disabilities resulting from the
offense." Tex. Code Crim. Proc. Ann. art. 42.12, § 20(a) (Vernon Supp.
2001); see also Cuellar v. State, 40 S.W.3d 724, 728 (Tex. App. San Antonio
2001, no pet.).
Opinion No. JC-0397
The Honorable Russell W. Malm, Midland County Attorney, 200 West Wall Street,
Suite 104, Midland, Texas 79701
Re: Whether a county may pay the employer's share of employment taxes on
state "supplemental salary compensation" paid to a county judge pursuant to
section 26.006(a) of the Government Code from the state-provided funds, and
related questions (RQ-0356-JC)
S U M M A R Y
A county may not pay the employer's share of employment taxes on a county
judge's state salary supplement from the monies provided by the state. See
Tex. Gov't Code Ann. § 26.006 (Vernon Supp. 2001) (providing that certain
county judges receive an annual salary supplement of $10,000 from the state).
A district attorney may not require the county commissioners court to expend
county funds to pay the employer's share of employment taxes on the assistant
district attorney salary supplements paid from the district attorney's "hot-check
fund" and from monies the district attorney receives from the state under
section 46.004 of the Government Code. The hot-check and section 46.004 monies
are not dedicated solely for salary supplements, and their statutes do not
vest the district attorney with control over county funds. See id. §
46.004 (providing that "[e]ach state prosecutor is entitled to receive not
less than $22,500 a year from the state to be used by the prosecutor to help
defray the salaries and expenses of the office"); Tex. Code Crim. Proc. Ann.
art. 102.007(f) (Vernon Supp. 2001) (dedicating certain hot-check fees to
"defray the salaries and expenses of the prosecutor's office"). The district
attorney is responsible for assuring compliance with federal law with respect
to employment taxes on the salary supplements.
Opinion No. JC-0398
The Honorable Royce West, Chair, Jurisprudence Committee, Texas State Senate,
P.O. Box 12068 Austin, Texas 78711-2068
Re: Whether section 25.092 of the Education Code, which relates to minimum
attendance for class credit, is applicable to a student who is exempt from
compulsory attendance under section 25.086 (RQ-0360-JC)
S U M M A R Y
The requirement of section 25.092 of the Education Code that a student
must attend class for ninety percent of the days on which the class is offered
in order to receive credit for the class is applicable without regard to
whether the student is exempt from compulsory attendance under section 25.086.
Section 25.092 does, however, make allowance for extenuating circumstances.
Students who are in attendance fewer than the number of days required may
petition for class credit before an attendance committee appointed by the
board of trustees of a school district. See Tex. Educ. Code Ann. §25.092(b)
(Vernon Supp. 2001). A student may appeal an adverse ruling of the attendance
committee to the board of trustees and ultimately to a district court. See
id. § 25.092(d).
For further information, please call (512) 463-2110.
TRD-200104145
Susan D. Gusky
Assistant Attorney General
Office of the Attorney General
Filed: July 18, 2001
RQ-0400-JC
The Honorable Rick Berry, Harrison County Criminal District Attorney, P.O.
Box 776, Marshall, Texas 75671
Re: Authority of the Texas Natural Resource Conservation Commission to
promulgate a rule that requires perpetual maintenance contracts for certain
on-site sewage facilities (Request No. 0400-JC)
Briefs requested by August 16, 2001
RQ-0401-JC
The Honorable Tim Cone, Upshur County Criminal District Attorney, 405 North
Titus Street, Gilmer, Texas 75644
Re: Whether members of a local governmental body may present a gift of
golf towels to members of the legislature (Request No. 0401-JC)
Briefs requested by August 16, 2001
RQ-0402-JC
The Honorable Tim Cone, Upshur County Criminal District Attorney, 405 North
Titus Street, Gilmer, Texas 75644
Re: Whether a county commissioner may be reimbursed for expenses incurred
in the official use of his personal vehicle (Request No. 0402-JC)
Briefs requested by August 16, 2001
For further information, please call (512) 463-2110.
TRD-200104144
Susan D. Gusky
Assistant Attorney General
Office of the Attorney General
Filed: July 18, 2001
Request for Opinions