Pursuant to Local Government Code section 171.009, a city council may transact business with a nonprofit corporation on which a local public official serves as an uncompensated director, and the director is not required to follow the recusal procedures in section 171.004. Local Government Code chapter 171, which pertains to conflicts of interest of local public officials, is cumulative of municipal charter provisions and municipal ordinances defining and prohibiting conflicts of interests. A home-rule city may adopt an ordinance regulating conflicts of interest of its officials that is not inconsistent with Local Government Code chapter 171.

A home-rule city ordinance that bars a city council member from taking part in the management, affairs, or political campaign of any municipal candidacy aside from his or her own candidacy limits a public officer's speech about the qualifications of candidates for public office and thus burdens core First Amendment rights. It is subject to strict scrutiny, and its constitutionality depends on whether it is narrowly tailored to serve a compelling state interest.

Opinion No. GA-0069

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 for an open-enrollment charter school may issue certificates of obligation to construct facilities for the school (RQ-0029-GA)

S U M M A R Y

Because section 12.101(a) of the Education Code does not authorize a municipality to operate an open-enrollment charter school in a municipal facility, a municipality is not authorized to issue certificates of obligation to finance such a facility's construction.

The Seventy-eighth Legislature is currently considering legislation that would permit an eligible entity to operate an open-enrollment charter school in its own facility and would expressly authorize a municipality that is granted a charter to borrow funds, issue obligations, and spend its funds to construct buildings for the charter school. See Tex. H.B. 1564, 78th Leg., R.S. (2003). This legislation would authorize a municipality to issue certificates of obligation to finance construction of a facility for its open-enrollment charter school. If municipalities are granted statutory authority to operate charter schools in municipal facilities and to construct facilities for their charter schools, using municipal funds to construct such a facility would accomplish a legitimate public purpose of a municipality under article III, section 52 of the Texas Constitution.

Opinion No. GA-0070

The Honorable Michael J. Guarino

Criminal District Attorney

Galveston County

722 Moody, Suite 300

Galveston, Texas 77550

Re: Whether, under chapter 271 of the Texas Local Government Code, Galveston County may use design-build contracts and lease-purchase agreements to construct thermal energy plants for building complexes (RQ-0630-JC)

S U M M A R Y

A thermal energy plant built to facilitate a building complex is a 'facility' under subchapter H, chapter 271 of the Texas Local Government Code, so that it may be built using the design- build method of construction. Galveston County does not have implied authority to enter into a sale and leaseback or lease and leaseback of property to acquire a thermal energy plant in connection with a jail facility.

Opinion No. GA-0071

The Honorable Kenneth Armbrister

Chair, Senate Committee on Natural Resources

Texas State Senate

P.O. Box 12068

Austin, Texas 78711

Re: Whether article III, section 55 of the Texas Constitution prohibits the rebate of municipal sales taxes (RQ-0011-GA)

S U M M A R Y

If a business collects and remits municipal sales taxes as required by law, the city's rebate of those taxes to the business does not violate article III, section 55 of the Texas Constitution. See TEX. CONST. art. III, §55 (prohibiting the legislature and political subdivisions from "releasing or extinguishing, in whole or in part, the indebtedness, liability or obligation of any corporation or individual" to the state or political subdivision).

Opinion No. GA-0072

The Honorable Frank Madla

Chair, Intergovernmental Relations Committee

Texas State Senate

P.O. Box 12068

Austin, Texas 78711

Re: Whether a well that was installed prior to September 1, 2002, but that was capped and will not be used to produce water until some indefinite time after that date, is a "public water supply well" exempt from regulation by the Trinity Glen Rose Groundwater Conservation District (RQ-0631-JC)

S U M M A R Y

A well that was installed prior to September 1, 2002, but that was capped and is not used to produce water for a public water system, is not a "public water supply well" exempt from regulation by the Trinity Glen Rose Groundwater Conservation District under section 16(a)(2) of House Bill 2005. See TEX. WATER CODE ANN. §36.001(18) (Vernon Supp. 2003). Once the well is uncapped and produces the majority of its water for use by a public water system, however, it will be exempt from regulation by operation of section 16(a)(2) if the Texas Commission on Environmental Quality approved plans for the installation of the well before September 1, 2001, and the installation of the well was completed in accordance with the approved plans and the Commission's technical requirements for use as a public-water-system groundwater well before September 1, 2002. See Act of May 27, 2001, 77th Leg., R.S., ch. 1312, §16(a)(2), 2001 Tex. Gen. Laws 3222, 3226. The fact that a well was capped and did not produce water for a public water system prior to September 1, 2002, would not disqualify the well for the exemption

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

TRD-200303168

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: May 21, 2003