TITLE attorney-general

Opinion No. GA-0331

The Honorable Kerry Spears

Milam County and District Attorney

The Blake Building

204 North Central

Cameron, Texas 76520

Re: Whether federal law preempts Transportation Code section 471.007, which imposes a criminal penalty against a railway company if its train blocks a railroad crossing for more than ten minutes (RQ-0299-GA)

S U M M A R Y

Section 471.007 of the Transportation Code, which imposes a criminal penalty against a railway company if its train blocks a railroad crossing for more than ten minutes, is preempted by the federal Interstate Commerce Commission Termination Act of 1995 and the Federal Railroad Safety Act.

Opinion No. GA-0332

The Honorable Christopher G. Taylor

Tom Green County Attorney

122 West Harris

San Angelo, Texas 76903

Re: Authority of a commissioners court to assign the duties of collecting criminal fines, costs and fees to a county treasurer's deputies (RQ-0301-GA)

S U M M A R Y

Article 103.0031 of the Texas Code of Criminal Procedure does not authorize a county commissioners court to establish a collections department under the authority of a county treasurer without the consent of the county clerk.

The county clerk serves as the clerk of a county court or statutory county court pursuant to the Texas Constitution and Texas statutes. A judge of a county court is not authorized to appoint the clerk of the county court or statutory court and, therefore, may not appoint a deputy of the county treasurer as the clerk of the court for purposes of collecting criminal fines and fees.

Opinion No. GA-0333

The Honorable James M. Kuboviak

Brazos County Attorney

300 East 26th Street, Suite 325

Bryan, Texas 77803-5327

Re: Applicability of section 145.002 of the Civil Practice and Remedies Code to installers and repairers of lawn sprinkler and landscape lighting systems (RQ-0302-GA)

S U M M A R Y

A "residence," for purposes of chapter 145 of the Civil Practice and Remedies Code, is an enclosed home or other dwelling. If the job duties of an employee of an installer or repairer of lawn sprinkler and landscape lighting systems require entry into an enclosed home or other dwelling, or an attached garage, chapter 145 contemplates a criminal history background check of that employee. If the employee's job duties require entry into the yard or real estate surrounding the enclosed home or attached garage, but not entry into the residence, chapter 145 does not contemplate a background check. Chapter 1305 of the Occupations Code exempts from its coverage the kind of activity that nurserymen and landscape contractors engage in when installing lawn sprinkler and yard lighting systems.

Opinion No. GA-0334

The Honorable Troy Fraser

Chair, Committee on Business and Commerce

Texas State Senate

Post Office Box 12068

Austin, Texas 78711-2068

Re: Application of conflict of interest law and the Open Meetings Act to the governing board of a groundwater conservation district (RQ-0304-GA)

S U M M A R Y

The directors of an underground water conservation district are subject to chapter 171 of the Local Government Code, which regulates conflicts of interest involving local public officials. Chapter 171 requires a local public official with a substantial interest in a business entity or real property on which board action will have a special economic effect to disclose his interest and abstain from further participation in the matter. A violation of this requirement is a Class A misdemeanor. When section 171.004(a) requires a local public official to abstain from further participation in a matter, it does not prohibit him from attending an executive session of his governmental body held to discuss the matter.

A contested permit hearing before the Board of Directors of the Clearwater Underground Water Conservation District is "litigation" within Government Code section 551.071(1)(A).

Opinion No. GA-0335

The Honorable John W. Smith

Ector County District Attorney

300 North Grant, Room 305

Odessa, Texas 79761

Re: Whether a business that holds an on-premises alcoholic beverage permit may host a poker tournament (RQ-0305-GA)

S U M M A R Y

A holder of an on-premises alcoholic beverage permit may not, without violating both section 47.04(a) of the Penal Code and Rule 35.31 of the Alcoholic Beverage Commission, host a poker tournament in which participants risk money or any other thing of value for the opportunity to win a prize. A holder of an on-premises alcoholic beverage permit may, without violating either section 47.04(a) of the Penal Code or Rule 35.31 of the Alcoholic Beverage Commission, host a poker tournament in which participants do not risk money or any other thing of value for the opportunity to win a prize.

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

Nancy S. Fuller

Assistant Attorney General

Office of the Attorney General

Filed: June 22, 2005