TITLE attorney-general

Opinions

(Editor's Note: Due to an error by the Texas Register, the following Attorney General Opinions were omitted from the March 28, 2003, issue of the Texas Register.)

Opinion No. GA-0032

The Honorable Kenneth Armbrister

Chair, Senate Committee on Natural Resources

Texas State Senate

P. O. Box 12068

Austin, Texas 78711-2068

Re: Whether a member of the Board of Trustees of the San Jacinto College District may simultaneously serve as a member of the Board of Directors of the Clear Brook Municipal Utility District (RQ-0596-JC)

S U M M A R Y

Although the position of director of the Clear Brook Municipal Utility District is an "office of emolument under article XVI, section 40 of the Texas Constitution," the position of trustee of the San Jacinto College District is not. Thus, a single individual is not prohibited by article XVI, section 40 of the Texas Constitution from simultaneously holding both positions. An individual is, however, barred from such simultaneous service on the basis of the common-law doctrine of incompatibility.

Opinion No. GA-0033

Mr. Albert Hawkins

Commissioner

Texas Health and Human Services Commission

P.O. Box 13247

Austin, Texas 78711

Re: Whether the Texas Community Health Center Revolving Loan Fund exists as a trust fund outside the state treasury; whether loan income is the property of the Fund; and whether chapter 136 of the Human Resources Code, which establishes the Fund, violates article III, sections 1, 50 and 51 of the Texas Constitution (RQ-0602-JC)

S U M M A R Y

In House Bill 2574, the Seventy-seventh Texas Legislature created the Texas Community Health Center Revolving Loan Fund as a trust fund outside the state treasury administered by the Health and Human Services Commission pursuant to chapter 136 of the Human Resources Code. See Act of May 23, 2001, 77th Leg., R.S., ch. 878, §1, sec. 136.003, 2001 Tex. Gen. Laws 1759, 1760 (enacting Human Resources Code section 136.003). A later enacted bill, House Bill 3088, abolished the Fund. See Act of May 25, 2001, 77th Leg., R.S., ch. 1466, §§2, 8(a), (d), 2001 Tex. Gen. Laws 5216, 5218-19. As a result, the Fund does not exist as a trust fund outside the state treasury.

Pursuant to sections 136.006(e) and 136.008 of the Human Resources Code, income on a loan made by the development corporation under chapter 136 is the property of the development corporation that the development corporation must use to make new loans. See Tex. Hum. Res. Code Ann. §§136.006(e), 136.008 (Vernon Supp. 2003). Chapter 136 of the Human Resources Code on its face does not violate article III, sections 50 and 51 or article III, section 1 of the Texas Constitution.

Opinion No. GA-0034

The Honorable Dib Waldrip

Comal County Criminal District Attorney

150 North Seguin, Suite 307

New Braunfels, Texas 78130

Re: Whether a county may require the owner of a "junked vehicle" to erect a fence or other screening objects in order to shield the vehicle from public view (RQ-0605-JC)

S U M M A R Y

A county may abate and remove as a "public nuisance" any "junked vehicle" that is visible from public or private property or a public right-of-way. A county may not require a particular kind of camouflage to render the vehicle non-visible. The fencing and screening standards applicable to licensed automotive salvage yards and junkyards under chapter 396 of the Transportation Code do not apply to junked vehicles parked on other private property.

Opinion No. GA-0035

The Honorable Mary Denny

Chair, Committee on Elections

Texas House of Representatives

P.O. Box 2910

Austin, Texas 78768-2910

Re: Whether questioning by the Texas Ethics Commission of third-party witnesses to the circumstances giving rise to a sworn complaint violates section 571.140 of the Government Code (RQ-0599-JC)

S U M M A R Y

It is not a per se violation of section 571.140 of the Government Code for the staff of the Texas Ethics Commission to question third-party witnesses concerning a situation that has given rise to a sworn complaint.

Opinion No. GA-0036

Ms. Karen Lundquist

Executive Director

Texas Ethics Commission

P. O. Box 12070, Capitol Station

Austin, Texas 78711-2070

Re: Whether the Texas Ethics Commission, in providing to the respondent in a commission- initiated complaint information that was obtained in connection with another sworn complaint, violates the confidentiality provision of section 571.140 of the Government Code (RQ-0601-JC)

S U M M A R Y

Under certain circumstances, the Texas Ethics Commission may be obliged under chapter 571 of the Government Code and Commission rules to provide documents relating to a sworn complaint against one respondent to another respondent. Doing so in those circumstances does not violate section 571.140 of the Government Code, so long as the documents are properly redacted.

Opinion No. GA-0037

The Honorable Tom Maness

Jefferson County Criminal District Attorney

Jefferson County Courthouse

1001 Pearl Street, Third Floor

Beaumont, Texas 77701-3545

Re: County commissioners court's authority over hiring and budgetary matters concerning an elected county officer (RQ-0603-JC)

S U M M A R Y

A commissioners court may not impose the condition on a position of employment in an elected official's department such that, if the present employee vacates the position, funds for the position's salary either (1) will cease unless the officer obtains the commissioners court's special permission to hire someone who is not currently a county employee, or (2) will be reduced to increase a promoted existing employee's salary no more than three percent. Such a condition interferes with an elected officer's authority to appoint an employee of his or her choice to a position that the commissioners court has approved and for which the court has set compensation. For the same reason, a commissioners court may not "freeze" a vacant position and condition filling the position on promoting an existing county employee or obtaining the court's special permission.

A commissioners court may transfer funds from one line item in the county budget to another existing line item in the county budget without authorizing an emergency expenditure. See Tex. Loc. Gov't Code Ann. §111.070(c) (Vernon 1999). Thus, to the extent that a budget amendment consists of transferring funds from one budgeted item to another, section 111.070(c) of the Local Government Code clearly authorizes the court to so amend the county budget, even in the absence of an emergency. See id. On the other hand, to the extent that a proposed amendment is not a mere transfer, the court may not accomplish the amendment in the absence of an emergency. See id. §111.070(b)-(c).

In general, a county commissioners court has discretionary authority to approve an expenditure proposed by a county officer after the annual budget is adopted, although the court may not, by refusing to approve a requested expenditure, interfere with an elected officer's ability to perform his or her legal duties.

Opinion No. GA-0038

The Honorable Kevin Bailey

Chair, Committee on General Investigating

Texas House of Representatives

P.O. Box 2910

Austin, Texas 78768-2910

Re: Authority of the Texas Education Agency to make a coordinated health program available to elementary schools (RQ-0606-JC)

S U M M A R Y

Pursuant to section 38.013 of the Education Code, the Texas Education Agency may provide "a coordinated health program designed to prevent obesity, cardiovascular disease, and Type II diabetes in elementary school students" to school districts by approving one or more sets of educational materials prepared by outside providers that fulfill the requirements of the coordinated health program described in the statute. Tex. Educ. Code Ann. § 38.013 (Vernon Supp. 2003); see Tex. Gov't Code Ann. §311.012(a) (Vernon 1998).

Opinion No. GA-0039

The Honorable Michael A. Stafford

Harris County Attorney

1019 Congress, 15th Floor

Houston, Texas 77002-1700

Re: Whether Harris County may participate in the design and construction of a toll bridge from Galveston Island to Point Bolivar (RQ-0608-JC)

S U M M A R Y

Because no part of the proposed Bolivar bridge project is located within Harris County, nor connected to a facility that is controlled by the Harris County Toll Road Authority, the Authority may not participate in the design and construction of a toll bridge from Galveston Island to Point Bolivar.

Opinion No. GA-0040

The Honorable Joe Driver

Chair, House Committee on Law Enforcement

Texas House of Representatives

P.O. Box 2910

Austin, Texas 78768-2910

Re: Whether the Texas Department of Insurance is authorized to enforce certain provisions of the Health Maintenance Organization Act, Tex. Ins. Code Ann. ch. 20A, against physicians who are not under contract with a health maintenance organization (RQ-0597-JC)

S U M M A R Y

The Health Maintenance Organization Act, Tex. Ins. Code Ann. ch. 20A (Vernon 1981 & Supp. 2003), does not prohibit a physician who is not under contract with an HMO from billing an HMO enrollee for charges not paid by the HMO. The Department of Insurance is not authorized to enforce the Act to prohibit such a physician from balance billing an enrollee of the HMO.

Opinion No. GA-0041

The Honorable Peggy Hamric

Chair, Committee on House Administration

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether chapter 143 of the Local Government Code, which provides civil service protection for certain municipal employees, applies to certain fire department employees (RQ-0604-JC)

S U M M A R Y

In accordance with Local Government Code section 143.003(4), a fire department member whose position requires substantial knowledge of fire fighting and work in the fire department is entitled to civil service protection in a municipality that has adopted a civil service system. In addition, a position that is among those included within section 143.003(4)(A)-(J) is a fire fighter entitled to civil service protection as a matter of law. Whether a particular fire department member satisfies a municipality's definition of fire fighter is immaterial if that member holds a position that requires substantial knowledge of fire fighting and work in the fire department or the member holds one of the positions listed in (A) through (J).

A person who is not a fire department member is not entitled to civil service protection under chapter 143 of the Local Government Code. Thus, a city's communications personnel, who comprise a department separate from, and independent of, the city's fire department, are not members of the fire department and are not entitled to civil service status under chapter 143.

Under chapter 143, only a fire department member who has held a position that is entitled to civil service protection for at least six months before the municipality adopted its civil service system may retain the position without complying with civil service requirements. In other circumstances, an employee whom a municipality has employed as a fire department member without substantially complying with civil service requirements may not retain his or her position.

Opinion No. GA-0042

The Honorable Jeb McNew

Montague County Attorney

Montague County Courthouse

P.O. Box 336

Montague, Texas 76251-0336

Re: Whether an inmate in a county jail has the right to choose a medical provider and whether an inmate who refuses to use the provider designated by the sheriff's office has refused medical treatment (RQ-0609-JC)

S U M M A R Y

A county jail inmate does not have the right to choose a medical provider. Whether an inmate's refusal to use the medical provider selected by the sheriff's office constitutes refusal of any and all medical treatment will depend upon the facts.

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

TRD-200301822

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: March 19, 2003


Opinion No. GA-0046

The Honorable Dib Waldrip

Comal County Criminal District Attorney

150 North Seguin, Suite 307

New Braunfels, Texas 78130

Re: Time at which a vacancy is created under the terms of Local Government Code section 22.010(d) in a type A general-law municipality (RQ-0610-JC)

S U M M A R Y

Pursuant to section 201.023 of the Election Code, a vacancy would occur on the city council of a type A general-law city when the resignation is accepted by the city council or on the eighth day after the date the city receives the resignation, whichever is earlier. Assuming that city council members serve two-year terms so that vacancies on council are not required to be filled by election pursuant to Texas Constitution article XI, section 11, the city council may time its acceptance of the resignations to avoid holding an election to fill two vacancies pursuant to Local Government Code section 22.010(d). To do so, it must fill one vacancy before the other vacancy occurs on the eighth day after the city receives the resignation. Attorney General Opinion MW- 401 (1981) is modified by legislation as stated in this opinion.

Opinion No. GA-0047

The Honorable William M. Jennings

Gregg County Criminal District Attorney

101 East Methvin Street, Suite 333

Longview, Texas 75601

Re: Whether a municipal risk pool established under chapter 172 of the Local Government

Code is subject to certain Insurance Code provisions (RQ-0617-JC)

S U M M A R Y

The mental health parity requirement in article 3.51-5A of the Insurance Code applies to a city's risk pool established under section 172.005(a) of the Local Government Code. A city is not bound, however, by the prohibition against treating pregnancy as a preexisting condition, found in article 26.90(d) of the Insurance Code. A city's risk pool may not charge a deductible for child immunizations required under article 21.53F, section 3 of the Insurance Code, even if the child receives the immunizations from an out-of-network provider.

Opinion No. GA-0048

The Honorable Ken Armbrister

Chair, Senate Committee on Natural Resources

Texas State Senate

P.O. Box 12068

Austin, Texas 78711

Re: Authority of a judge or magistrate to attach a financial condition to a personal bond or to permit a cash deposit of less than the full bail amount (RQ-0618-JC)

S U M M A R Y

A judge or magistrate may not attach a financial condition to a personal bond, or authorize the deposit of less than the full cash amount of bail.

Opinion No. GA-0049

The Honorable Susan Combs, Commissioner

Texas Department of Agriculture

P.O. Box 12847

Austin, Texas 78711

Re: Whether the Texas Corn Producers Board may collect an assessment on corn ensilage (RQ-0619-JC)

S U M M A R Y

Corn ensilage is not "corn" for purposes of the 1980 and 1990 referenda authorizing the Texas Corn Producers Board to collect an assessment on corn. The Board may not collect an assessment on "corn ensilage" unless the corn producers of the state approve such an assessment in an election held under section 41.084 of the Agriculture Code.

Opinion No. GA-0050

The Honorable Kevin Bailey

Chair, Committee on General Investigating

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether, for purposes of section 155.003 (c)(1) of the Occupations Code, an international medical school graduate who trained in the United States in a program of graduate medical education that is accredited in a particular specialty but not accredited in the related subspecialty in which the graduate received training has received medical education from a program accredited "in the same subject" as the specialty (RQ-0621-JC)

S U M M A R Y

The Texas State Board of Medical Examiners may decline to license an international medical school graduate who received training in the United States in a graduate medical education program that is accredited in a particular specialty but not accredited in the subspecialty in which the applicant trained. A specialty and a subspecialty within it are not the "same subject" for the purposes of section 155.003(c)(1) of the Occupations Code and related rules. Whether such a graduate completed sufficient training in the accredited specialty to be eligible for licensing on that basis is a question of fact for the Board to resolve.

The fact that an agency charged with administering a particular statute has interpreted the statute differently over the years does not mean, as a matter of law, that the agency's current interpretation is unreasonable.

Opinion No. GA-0051

The Honorable Dib Waldrip

Comal County Criminal District Attorney

150 North Seguin, Suite 307

New Braunfels, Texas 78130

Re: Whether Attorney General Opinion JC-0471 (2002) correctly construes section 152.013(c) of the Local Government Code (RQ-0615-JC)

S U M M A R Y

Under section 152.013(c) of the Local Government Code, a commissioners court must notify elected county and precinct officers of proposed salaries and expenses after the court has received a proposed budget from the county judge, but sufficiently before the court's approval of the budget to permit an aggrieved officer to request a hearing before the salary grievance committee and to permit the salary grievance committee to determine the grievance consistently with section 152.016. See TEX. LOC. GOV'T CODE ANN. §§ 152.013(c), 152.016 (Vernon 1999). To the extent Attorney General Opinion JC-0471 suggests that a commissioners court may notify officers under section 152.013 only after having adopted the budget, the opinion is modified. See Tex. Att'y Gen. Op. No. JC-0471 (2002) at 2. To the same extent, Attorney General Opinion DM-405 is modified. See Tex. Att'y Gen. Op. No. DM-405 (1996) at 4.

Opinion No. GA-0052

The Honorable Michael A. Stafford

Harris County Attorney

1019 Congress, 15th Floor

Houston, Texas 77002-1700

Re: Whether section 550.065(d) of the Transportation Code requires a governmental body to use the guidelines established by the Texas Building and Procurement Commission when calculating the "actual cost" of making a noncertified copy of an accident report (RQ-0611-JC)

S U M M A R Y

Section 550.065(d) of the Transportation Code provides that the fee for copies of accident reports and accident information is $6 or the actual cost of preparing the copy, whichever is less. Because section 550.065 does not define "actual cost," governmental agencies must use the Texas Building and Procurement Commission's guidelines under the Public Information Act to calculate the "actual cost" of making a noncertified copy of an accident report subject to the limit of $6 established by the Transportation Code.

Opinion No. GA-0053

The Honorable Mark E. Price

San Jacinto County Criminal District Attorney

1 State Highway 150, Room 21

Coldspring, Texas 77331

Mr. Ray Stelly, C.P.A.

San Jacinto County Auditor

1 State Highway 150, Room B1

Coldspring, Texas 77331

Re: Auditing of certain accounts held by a criminal district attorney (RQ-0624-JC)

S U M M A R Y

State funds distributed to a prosecutor under the Professional Prosecutors Act or article 104.004 of the Code of Criminal Procedure are not subject to the special audit provision of section 115.032 of the Local Government Code. "Hot check" funds established under article 102.007 of the Code of Criminal Procedure are subject to such audit. A district attorney's authority over the disposition of "hot check" proceeds does not empower him to make multi-year contracts binding them in violation of article XI, section 7 of the Texas Constitution. Funds distributed to a district attorney under the Professional Prosecutors Act are to be deposited in the county treasury.

Opinion No. GA-0054

The Honorable Stephen E. Ogden

Chair, Senate Infrastructure Development

and Security Committee

Texas State Senate

P.O. Box 12068

Austin, Texas 78711-2068

Re: Whether, "in the case of emergency and imperative public necessity and with a four- fifths vote of the total membership of each House," the legislature may, pursuant to article III, section 49a of the Texas Constitution, authorize expenditures in excess of the amount of cash and anticipated revenues certified by the Comptroller of Public Accounts (RQ-0025-GA)

S U M M A R Y

In order to appropriate funds that exceed the amount of cash and anticipated revenue certified by the Comptroller of Public Accounts, an appropriation bill must state the legislature's finding that an "emergency or imperative public necessity" exists, and the bill must then be enacted by a four-fifths vote of the full membership of each house of the legislature.

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

TRD-200302183

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: April 2, 2003


Request for Opinions

(Editor's Note: Due to an error by the Texas Register, the following Attorney General Request for Opinions were omitted from the March 28, 2003, issue of the Texas Register.)

RQ-0021-GA

The Honorable Ismael "Kino" Flores, Chair, Licensing and Administrative Procedures Committee, Texas House of Representatives, P.O. Box 2910 Austin, Texas 78768-2910

Re: Construction of section 47.01(4)(B), Penal Code, which relates to the definition of "gambling device"; and determination of limitation on sweepstakes promotions under chapter 43 of the Business and Commerce Code (Request No. 0021-GA)

Briefs requested by April 12, 2003

RQ-0022-GA

The Honorable Tim Curry, Tarrant County Criminal District Attorney Justice Center, 401 West Belknap Fort Worth, Texas 76196-0201

Re: Whether section 1704.304 of the Occupations Code, which prohibits certain persons from recommending the employment of a bail bond surety or of an attorney or law firm to a criminal defendant, precludes those persons from furnishing a list of multiple attorneys or bail bond sureties (Request No. 0022-GA)

Briefs requested by April 12, 2003

RQ-0023-GA

The Honorable Michael A. Stafford, Harris County Attorney, P.O. Box 920975, Houston, Texas 77292-0975

Re: Construction of sections 11.26 and 23.23, Tax Code, regarding the valuation of repairs made to a property owners homestead as a result of flood, wind, fire or other damage (Request No. 0023-GA)

Briefs requested by April 13, 2003

RQ-0024-GA

Douglas A. Beran, Ph.D., Executive Director, State Board of Barber Examiners, 5717 Balcones Drive, Suite 217 Austin, Texas 78731

Re: Use of the Barber School Tuition Protection Account administered by the State Board of Barber Examiners (Request No. 0024-GA)

Briefs requested by April 13, 2003

RQ-0025-GA

The Honorable Stephen E. Ogden, Chair, Infrastructure Development and Security Committee Texas State Senate, P.O. Box 12068 Austin, Texas 78711

Re: Whether, "in the case of emergency and imperative public necessity and with a four- fifths vote of the total membership of each House," the legislature may, pursuant to article III, section 49a(b) of the Texas Constitution, authorize expenditures in excess of the amount of cash and anticipated revenue certified by the Comptroller (Request No. 0025-GA)

Briefs requested by March 24, 2003

RQ-0026-GA

The Honorable Joe Nixon, Chairman, Committee on Civil Practices, Texas House of Representatives, P.O. Box 2910 Austin, Texas 78768-2910

Re: Status of the University Interscholastic League as a state agency or other entity (Request No. 0026-GA)

Briefs requested by April 19, 2003

RQ-0027-GA

The Honorable Robert B. Scheske, Gonzales County Attorney, P.O. Box 3, Gonzales, Texas 78629-0003

Re: Whether a single county election may be held to determine whether, on the one hand, cattle may be permitted to run at large, and, on the other, whether other domesticated animals may be permitted to run at large (Request No. 0027-GA)

Briefs requested by April 19, 2003

RQ-0028-GA

The Honorable Mike Stafford, Harris County Attorney, 1019 Congress, 15th Floor Houston, Texas 77002-1700

Re: Authority of the presiding judge of the statutory probate courts to adopt statewide local rules of administration for the statutory probate courts (Request No. 0028-GA)

Briefs requested by April 19, 2003

RQ-0029-GA

The Honorable Kent Grusendorf, Chair, Committee on Public Education, Texas House of Representatives, P.O. Box 2910 Austin, Texas 78768-2910

Re: Whether a municipality that has been granted a charter to operate a charter school may issue certificates of obligation to construct facilities in which to house the school (Request No. 0029-GA)

Briefs requested by March 28, 2003

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

TRD-200301821

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: March 19, 2003


RQ-0030-GA

The Honorable Jose R. Rodriguez

El Paso County Attorney

500 East San Antonio, Room 503

El Paso, Texas 79901

Re: Whether section 44.901 of the Education Code applies to a school district's purchase of certain energy conservation services (Request No. 0030-GA)

Briefs requested by April 26, 2003

RQ-0031-GA

The Honorable Mark Burtner

Lamar County Attorney

119 North Main Street

Paris, Texas 75460

Re: Whether a sheriff may contract to provide security to a private entity (Request No. 0031-GA)

Briefs requested by April 24, 2003

RQ-0032-GA

The Honorable Phil King

Chair, Regulated Industries Committee

Texas House of Representatives

P.O. Box 2910

Austin, Texas 78768-2910

Re: Reporting of child sexual abuse and required responses thereto (Request No. 0032-GA)

Briefs requested by May 1, 2003

RQ-0033-GA

The Honorable Tempie T. Francis

Motley County Attorney

P.O. Box 7

Matador, Texas 79244

Re: Whether a county attorney who is not subject to the Professional Prosecutors Act may maintain a civil practice office in a neighboring county (Request No. 0033-GA)

Briefs requested by May 1, 2003

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

TRD-200302182

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: April 2, 2003