RQ-0707-GA
Requestor:
The Honorable John J. Carona
Chair, Committee on Transportation & Homeland Security
Texas State Senate
Post Office Box 12068
Austin, Texas 78711
Re: Amount of exemption from ad valorem taxation to which certain disabled veterans are entitled (RQ-0707-GA)
Briefs requested by June 9, 2008
RQ-0708-GA
Requestor:
The Honorable Byron C. Cook
Chair, Committee on Civil Practices
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910
Re: Authority of a hospital district to replenish employee retirement funds embezzled by a third-party administrator and accept assignment of employees' claims against the third-party administrator (RQ-0708-GA)
Briefs requested by June 9, 2008
RQ-0709-GA
Requestor:
Mr. Robert Scott
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494
Re: Whether certain pre-kindergarten educational programs offered by the Spring Branch Independent School District are subject to the licensing requirements of the Department of Family and Protective Services (RQ-0709-GA)
Briefs requested by June 12, 2008
RQ-0710-GA
Requestor:
Mr. Robert Scott
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494
Re: Whether a school district may use district funds to pay a traffic fine imposed by a municipality (RQ-0710-GA)
Briefs requested by June 12, 2008
RQ-0711-GA
Requestor:
The Honorable Joe Deshotel
Chair, Committee on Economic Development
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910
Re: Whether the City of Port Arthur may transfer a former fire station to a non-profit public radio station (RQ-0711-GA)
Briefs requested by June 13, 2008
For further information, please access the website at www.oag.state.tx.us or call the Opinion Committee at (512) 463-2110.
TRD-200802509
Stacey Napier
Deputy Attorney General
Office of the Attorney General
Filed: May 14, 2008
Opinion No. GA-0622
The Honorable Jeff Wentworth
Chair, Jurisprudence Committee
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068
Re: Whether persons operating or participating in a pilot needle- and syringe-exchange program authorized for Bexar County by Government Code section 531.0972 may be prosecuted for possessing drug paraphernalia under Health and Safety Code section 481.125 (RQ-0630-GA)
S U M M A R Y
In May of 2007, the Legislature authorized a pilot program in Bexar County "to prevent the spread of HIV, hepatitis B, hepatitis C, and other infectious and communicable diseases." TEX. GOV'T CODE ANN. §531.0972 (Vernon Supp. 2007). The legislation provided that the Health and Human Services Commission " may provide guidance" to Bexar County in establishing such a program. Id . (emphasis added). The statute also allowed Bexar County to include in its pilot program a needle- and syringe-exchange program. See id.
The Texas Controlled Substances Act provides that possession or delivery of drug paraphernalia--including "a hypodermic syringe, needle, or other object used or intended for use in parenterally injecting a controlled substance into the human body"--is an offense that subjects a person to criminal prosecution. TEX. HEALTH & SAFETY CODE ANN. §481.002(17)(K) (Vernon Supp. 2007).
Because a needle and syringe exchange is an optional component of Bexar County's pilot disease-prevention program, the program need not include a needle- and syringe-exchange component. If Bexar County's pilot disease-prevention program does not include a needle and syringe exchange, a person would not be subject to prosecution under section 481.125 of the Health & Safety Code for participating in the program. If, however, Bexar County elects to include such a needle- and syringe-exchange program as part of this overall disease-prevention program, the participants in that program appear to be subject to prosecution under the Texas Controlled Substances Act because the Legislature did not except them from such prosecution.
In contrast to the Bexar County pilot-program statute, the Legislature has, in numerous statutes, adopted express language that excludes certain activities from criminal prosecution under the Texas Controlled Substances Act. Because the Legislature has expressly demonstrated its ability and willingness to exclude otherwise criminal acts from prosecution under the Texas Controlled Substances Act--but did not do so here--this office can neither assume nor legislate such an intent.
Additionally, even if the participants are not subject to prosecution under the Texas Controlled Substances Act, participants may face criminal charges under other Texas or federal statutes.
Finally, any decision to prosecute program participants is a matter of prosecutorial discretion.
Opinion No. GA-0623
The Honorable Warren Chisum
Chair, Committee on Appropriations
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910
Re: Whether a foreign corporation may transport horsemeat for human consumption in-bond through Texas for immediate export abroad (RQ-0623-GA)
S U M M A R Y
Chapter 149 of the Agriculture Code makes it an offense for any person to sell horsemeat for human consumption, possess horsemeat with the intent to sell it as food for human consumption, or transfer horsemeat to a person who intends to sell it for human consumption irrespective of the origin or destination of the horsemeat. A court would likely find that section 1553 of the Tariff Act of 1930 and federal regulations promulgated thereunder do not preempt the application of chapter 149 to a foreign corporation that transports horsemeat intended for sale as food for human consumption in-bond through Texas for immediate export abroad. Similarly, a court would likely find that the application of chapter 149 to a foreign corporation that transports such horsemeat in-bond through Texas for immediate export abroad does not violate the federal dormant Commerce Clause by discriminating against or unduly burdening interstate or foreign commerce.
Opinion No. GA-0624
The Honorable Jana Duty
Williamson County Attorney
Williamson County Justice Center, Second Floor
405 Martin Luther King Box 7
Georgetown, Texas 78626
Re: County payment to vendors under the Low-Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program, and reimbursement to a county from the Texas Commission on Environmental Quality (RQ-0646-GA)
S U M M A R Y
Chapter 382 of the Health and Safety Code authorizes establishment of a Low-Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program ("LIRAP") and directs the Texas Commission on Environmental Quality (the "TCEQ") to distribute available funds to participating counties to administer the program. Section 382.210(d) provides that a participating county "shall ensure that funds are transferred to a participating dealer . . . not later than five business days after the date the county receives" the required dealer documentation. TEX. HEALTH & SAFETY CODE ANN. §382.210(d) (Vernon Supp. 2007). But a participating county is not authorized to disburse funds to participating dealers under the LIRAP before such expenditures have been reviewed and approved by the county's auditor, commissioners court, and treasurer as required by Texas law. And the TCEQ is not prohibited from distributing available funds to a participating county when the required reviews and approvals by the county commissioner, county auditor, and county treasurer make county payments to LIRAP dealers within five days impractical.
Opinion No. GA-0625
The Honorable Joe Driver
Chair, Committee on Law Enforcement
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910
Re: Authority of a Type A general-law city to permit employee payroll deduction as part of a collective bargaining agreement (RQ-0647-GA)
S U M M A R Y
The issue of payroll deduction of association dues is a mandatory subject of bargaining under the Fire and Police Employee Relations Act ("FPERA"), codified at chapter 174, Local Government Code. Thus, we conclude that a general-law municipality with a population of 10,000 or fewer and a duty to bargain collectively under section 174.105 of the FPERA has implied authority to provide payroll deductions for association dues.
Opinion No. GA-0626
Ms. Peggy D. Rudd
Director and Librarian
Texas State Library and Archives Commission
Post Office Box 12927
Austin, Texas 78711-2927
Re: Authority of a multi-jurisdictional library district to assess and collect ad valorem taxes (RQ-0648-GA)
S U M M A R Y
The Texas Supreme Court has not determined whether the Texas Constitution impliedly prohibits the Legislature from allowing a political subdivision to impose ad valorem taxes absent express constitutional authorization. However, the authority that exists indicates that a court would more likely than not find that express constitutional authority is necessary for legislation permitting a multi-jurisdictional library district established under Government Code chapter 336 to impose an ad valorem tax.
If the ad valorem tax authorized by Local Government Code chapter 336 were constitutional, the library district board could have the tax collector of the lead governmental entity collect and remit taxes to the district. Although section 336.251 limits the board's authority to negotiate the tax collector's compensation, it appears that the Legislature may amend this provision without also amending the constitution.
For further information, please access the website at www.oag.state.tx.us or call the Opinion Committee at (512) 463-2110.
TRD-200802508
Stacey Napier
Deputy Attorney General
Office of the Attorney General
Filed: May 14, 2008