Opinion No. JC-0503

The Honorable Frank Madla, Chair, Intergovernmental Relations Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711-2068

Re: Whether a county may maintain a road that has not been officially established as a public road but which has been accessible to and regularly used by the public (RQ-0469-JC)

S U M M A R Y

A county is limited to expending public funds on the construction and maintenance of public roads. A county may not expend public funds to construct, improve, or maintain private roads, except as authorized by article III, section 52f of the Texas Constitution. In general, a road may become a public road either pursuant to the statutory procedures set forth in the county road and eminent domain laws, by dedication, or by prescriptive easement.

Before maintaining a road that has not been officially established as a public road, a commissioners court must either obtain a judicial order declaring the road a public road or, alternatively, in a county with a population greater than 50,000, make its own determination that the road has become a public road by dedication or by prescriptive easement. Private landowners or others affected by a commissioners court's determination that a road is a public road may seek to have their rights adjudicated by a court. In such an action challenging a commissioners court's determination that a road is a public road, the status of the road would be a question of fact.

In counties of 50,000 or fewer persons governed by chapter 281 of the Transportation Code, a commissioners court is not authorized to determine that a road has become a public road by dedication or by prescriptive easement based on events occurring after that chapter's effective date, or to maintain such a road on the basis of those common-law doctrines.

Opinion No. JC-0504

The Honorable Bill Turner, Brazos County District Attorney, Brazos County Courthouse, 300 East 26th Street, Suite 310, Bryan, Texas 77803

Re: Whether section 37.123 of the Education Code, which creates the offense of "disruptive activity," requires proof of intent (RQ-0474-JC)

S U M M A R Y

Section 37.123 of the Education Code, which prohibits disruptive activities on a school campus, requires in order to sustain a conviction that the actor intentionally engaged in one of the five species of conduct described in that statute, rather than merely engaged in conduct that ultimately resulted in one of the effects described therein.

Opinion No. JC-0505

Mr. O.C. "Chet" Robbins, Executive Director, Texas Funeral Service Commission, 333 Guadalupe, Suite 110, Austin, Texas 78701

Re: Whether a casket constitutes "funeral merchandise" for purposes of Chapter 651 of the Occupations Code, and related questions (RQ-0477-JC)

S U M M A R Y

While a casket constitutes funeral merchandise for the purposes of chapter 651 of the Occupations Code, the sale of a casket for an imminent burial, without more, does not constitute an act of funeral directing.

For further information, please call the Opinion Committee at 512/ 463-2110 or access the website at www.oag.state.tx.us.

TRD-200203118

Susan D. Gusky

Assistant Attorney General

Office of the Attorney General

Filed: May 21, 2002

RQ-0538

Mr. Jerry L. Benedict, Administrative Director, Office of Court Administration, 205 West 14th Street, Suite 600, Austin, Texas 78711-2066

Whether the legislature may define the state appellate courts as "state agencies" for purposes of employment discrimination under chapter 21 of the Labor Code (Request No. 0538-JC)

Briefs requested by June 21 , 2002

RQ-0539

The Honorable Bill G. Carter, Chair, Urban Affairs Committee, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910

Re: Whether a city council may determine that its members are not eligible to serve as members of a volunteer fire department, and related questions (Request No. 0539-JC)

Briefs requested by June 17, 2002

RQ-0540

The Honorable Tim Cone, Upshur County, Criminal District Attorney, 405 North Titus Street, Gilmer, Texas 75644

Re: Whether section 130.908, Local Government Code is applicable after a primary election or only after a general election, and related questions (Request No. 0540-JC)

Briefs requested by June 21, 2002

RQ-0541

Mr. William M. Franz, Executive Director, State Board of Educator Certification, 1001 Trinity, Austin, Texas 78701-2603

Re: Procedure for certification of foreign educators by the State Board for Educator Certification (Request No. 0541-JC)

Briefs requested by June 17, 2002

RQ-0542

Mr. Jeff Moseley, Executive Director, Texas Department of Economic Development, P.O. Box 12728, Austin, Texas 78711-2728

Re: Enterprise project destinations under chapter 2303, Government Code, the Texas Enterprise Zone Act (Request No. 0542-JC)

Briefs requested by June 21, 2002

RQ-0543

The Honorable Russell W. Malm, Midland County Attorney, 200 West Wall Street, Suite 104, Midland, Texas 79701

Re: Authority of a county to enter into a multi-year lease of real property with a private organization for the purpose of operating an art museum (Request No. 0543-JC)

Briefs requested by June 20, 2002

RQ-0544

The Honorable Jeff Wentworth, Texas State Senate, P.O. Box 12068, Austin, Texas 78711-2068

The Honorable Edmund Kuempel, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910

Re: Effect of the defeat of a ballot proposition confirming the creation of the Southeast Trinity Groundwater Conservation District, and related questions (RQ-0544-JC)

Briefs requested by June 20, 2002

For further information, please call the Opinion Committee at 512/ 463-2110 or access the website at www.oag.state.tx.us.

TRD-200203148

Susan D. Gusky

Assistant Attorney General

Office of the Attorney General

Filed: May 22, 2002