Opinions
Opinion No. JC-0458
The Honorable Kim Brimer, Chair, House Committee on Business & Industry,
Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910
Re: Constitutionality of a ban on testimonials by health care professionals
(RQ-0411-JC)
S U M M A R Y
The United States Supreme Court has held that the government may freely
regulate commercial speech that concerns unlawful activity or is misleading,
but that commercial speech that falls into neither of those categories may
be regulated only if the government satisfies a three prong test: (1) the
government has a substantial interest in regulating the speech; (2) the restriction
directly and materially advances that interest; and (3) the regulation is
narrowly drawn. Because section 101.201(b)(4) of the Texas Occupations Code
imposes an absolute ban on the use of testimonials regarding health care professionals,
a court would probably find that it fails to satisfy the third prong of this
test and, therefore, contravenes the First Amendment to the United States
Constitution.
Opinion No. JC-0459
The Honorable Bruce Isaacks, Denton County Criminal District Attorney,
1450 East McKinney, Suite 3100, P.O. Box 2850, Denton, Texas 76202
Re: County's and school district's obligations vis-a-vis a juvenile justice
alternative education program, and related questions (RQ-0420-JC)
S U M M A R Y
Outside of its responsibility to provide some funding to the juvenile board
and to review that portion of the juvenile board's budget funded with county
monies, a county or a commissioners court is not statutorily responsible for
any aspect of the development or operation of a juvenile justice alternative
education program (JJAEP). Because the juvenile board receives some county
funds, the county may have corresponding obligations or liabilities.
A county has no authority to determine which expulsions that are discretionary
under section 37.007 of the Education Code will be subject to placement in
the JJAEP. See Tex. Educ. Code Ann. § 37.007(b), (c), (e), (f) (Vernon
Supp. 2002). A school district's authority to determine which discretionary
expulsions will be subject to placement in a JJAEP stems from its duty to
negotiate with the juvenile board an annual memorandum of understanding. See
id. § 37.011(k), (l). Conversely, the juvenile board's authority to determine
which categories of conduct will be subject to placement in the JJAEP is subject
to negotiation with the school district. The eligibility criteria set in the
memorandum of understanding may be based upon classifications of conduct only.
A school district is not obligated to fund the construction of JJAEP facilities.
A juvenile board may purchase real estate for JJAEP purposes, but a juvenile
board may not accept contributed real estate for JJAEP purposes unless the
legislature has expressly authorized it to do so.
Opinion No. JC-0460
The Honorable Tony Goolsby, Chair, Committee on House Administration,
Texas House of Representatives, P. O. Box 2910, Austin, Texas 78768-2910
Re: Authority of a home-rule city to create a civil offense for the disregard
of a traffic control signal and to use automated enforcement systems for traffic
control (RQ-0426-JC)
S U M M A R Y
Absent specific legislative authorization, a home-rule municipality such
as the City of Richardson may not adopt an ordinance that imposes a civil
penalty for violation of section 544.007(d) of the Transportation Code, which
makes the running of red light a crime. The city is not prohibited from adopting
an ordinance authorizing the use of automated enforcement equipment to identify
criminal red-light violations at roadway intersections.
Opinion No. JC-0461
Ms. Karen F. Hale, Commissioner, Texas Department of Mental Health and
Mental Retardation, P. O. Box 12668, Austin, Texas 78711-2668
Re: Whether a federally-funded state protective and advocacy system for
persons with mental illness or developmental disabilities may have access
to a person and his or her records over the objection of the person's guardian
(RQ-0427-JC)
S U M M A R Y
Federally-funded state protection and advocacy systems for persons with
mental illness or developmental disabilities are authorized, in accordance
with federal law, to have access to such persons and their records under certain
circumstances and in accordance with the procedures prescribed by federal
law, even if the person's legal guardian objects to such access.
Opinion No. JC-0462
The Honorable Tom Ramsay, Chair, County Affairs Committee, Texas House
of Representatives, P.O. Box 2910, Austin, Texas 78768-2910 Re: Effect on
a constable's duties when his precinct is abolished by redistricting (RQ-0432-JC)
S U M M A R Y
Pursuant to article V, section 18(c) of the Texas Constitution, a constable
will serve out his term of office in the precinct in which he resides when
the precinct to which he was elected was abolished by a change of boundaries,
even though his continued service temporarily results in extra constables
serving in a precinct. The legal duties and powers of a constable are not
changed by the abolition of the precinct to which he was elected through the
redrawing of precinct boundaries. The commissioners court continues to set
the constable's salary and expenses and to approve the appointment of his
deputies as it did before the precinct boundaries were redrawn.
Opinion No. JC-0463
The Honorable Dustanna Rabe Hopkins, County Attorney, 110 Main Street,
Sulphur Springs, Texas 75482
Re: Disposition of funds previously accumulated under pretrial diversion
agreements (RQ-0437-JC)
S U M M A R Y
Unauthorized accumulated "pretrial diversion fees" and the interest earned
on the fees must be returned to the individuals who paid those fees. Unclaimed
fees and interest earnings may become abandoned property that must be reported
and delivered to the Comptroller of Public Accounts pursuant to chapter 74
of the Property Code.
Opinion No. JC-0464
Mr. Jeff Moseley, Executive Director, Texas Department of Economic Development,
P.O. Box 12728, Austin, Texas 78711-2728
Re: Whether article III, section 19 of the Texas Constitution requires
a Texas Department of Economic Development governing board member to resign
from office in order to run for the Texas Legislature (RQ-0457-JC)
S U M M A R Y
Because a member of the Texas Department of Economic Development governing
board does not hold a "lucrative" office within the meaning of article III,
section 19 of the Texas Constitution, that constitutional provision is not
relevant to a board member's eligibility to run for legislative office or
to serve as a legislator. Article III, section 19 does not require a board
member to resign from office in order to run for legislative office and would
not affect a member's eligibility to serve should he or she be elected to
office. However, article XVI, section 40(d) of the Texas Constitution prohibits
a state legislator from holding an unpaid state office and would preclude
a person from serving as both a member of the Department of Economic Development
governing board and as a legislator.
For further information,
please contact the Opinion Committee at (512) 463-2110 or access their website
at www.oag.state.texas.us .
TRD-200201030
Susan D. Gusky
Assistant Attorney General
Office of the Attorney General
Filed: February 20, 2002
RQ-0505
Mr. Jerry L. Benedict, Administrative Director, Office of Court Administration,
205 West 14th Street, Suite 600 Austin, Texas 78711-2066
Re: Whether subsections 834.102(b) and 839.102(b), Texas Government Code,
apply to visiting judges who retired prior to January 1, 2002 (Request No.
0505-JC)
Briefs requested by March 13, 2002
RQ-0506
Mr. Jim Nelson, Commissioner of Education, Texas Education Agency, 1701
North Congress Avenue, Austin, Texas 78701-1494
Re: Whether federal law overrides section 611.0045, Health and Safety Code,
which provides that a mental health professional, including a public school
counselor, may deny to a parent or guardian a school record whose release
the counselor determines would be harmful to the student (Request No. 0506-JC)
Briefs requested by March 13, 2002
RQ-0507
The Honorable Juan J. Hinojosa, Chair, Criminal Jurisprudence Committee,
Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910
Re: Application of section 1704.302, Occupations Code, to an employee of
a bail bond business when the business is purchased by another person (Request
No. 0507-JC)
Briefs requested by March 13, 2002
RQ-0508
The Honorable Ken Armbrister, Chair, Criminal Justice Committee, Texas
State Senate, P.O. Box 12068, Austin, Texas 78711-2068
Re: Whether an accounting firm may include owners who are not certified
public accountants (Request No. 0508-JC)
Briefs requested by March 14, 2002
For further information,
please call the Opinion Committee at 512/ 463-2110 or access the website at
www.oag.state.tx.us.
TRD-200201031
Susan D. Gusky
Assistant Attorney General
Office of the Attorney General
Filed: February 20, 2002
Request for Opinions