Attorney General

The term "person" in the Texas Asbestos Health Protection Act, chapter 1954 of the Occupations Code, includes a municipality. However, we think it unlikely that a court would conclude the inclusion of a municipality in the definition of person constitutes a clear and unambiguous waiver of immunity from suit for a violation of section 1954.259(b). Even if governmental immunity is retained, it does not mean that every enforcement action about which you ask is necessarily barred.

Opinion No. GA-0730

The Honorable Heather Hollub

25th Judicial District Attorney

113 South River, Suite 205

Seguin, Texas 78155

Re: Whether a district attorney's occupation of office space leased by the county from the district attorney's spouse constitutes a conflict of interest (RQ-0780-GA)

S U M M A R Y

A district attorney's occupation of office space leased by the county commissioners court from the spouse of the district attorney under the factual scenario described in the requestor's brief does not constitute a conflict of interest under chapter 171 of the Local Government Code.

Opinion No. GA-0731

The Honorable Rex Emerson

Kerr County Attorney

Kerr County Courthouse

700 Main Street, Suite BA-103

Kerrville, Texas 78028

Re: Whether the Kerr County Sheriff is required to maintain a room in the jail dedicated to recording the interrogation of a person arrested for driving while intoxicated (RQ-0783-GA)

S U M M A R Y

Section 24 of the Act of May 27, 1983, 68th Leg., R.S., ch. 303, requires counties with a population of 25,000 or more to purchase and maintain electronic devices to make visual recordings of persons arrested within the county for the offense of driving while intoxicated. Section 24, which remains in effect, does not require a county to maintain a room dedicated to videotaping the arrested persons, nor does it specify the location where the equipment is to be used.

Opinion No. GA-0732

The Honorable Rob Eissler

Chair, Committee on Public Education

Texas House of Representatives

Post Office Box 2910

Austin, Texas 78768-2910

Re: Whether the State of Texas may permit unauthorized aliens to receive the benefit of in-state tuition at Texas state colleges and universities (RQ-0742-GA)

S U M M A R Y

Education Code sections 54.052(a)(3) and 54.053(3) would conflict with and thus be preempted by section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, codified at 8 U.S.C. §1623, if the state statutes provide a "postsecondary education benefit" to an alien who is not lawfully present in the United States on the basis of "residence," within the meaning of the federal statute, "unless a citizen or national of the United States is eligible for such a benefit . . . without regard to whether the citizen or national is such a resident." 8 U.S.C. §1623(a) (2006). However, the terms "postsecondary education benefit" and "residence" are not defined in the federal law. In addition, no Texas or federal court has construed these terms or considered the substantive application of the federal law to a statute similar to the Texas statutes. Thus, while a federal or state court in Texas, following the reasoning of an intermediate California state appellate court decision, could find that 8 U.S.C.§1623 preempts Education Code sections 54.052(a)(3) and 54.053(3) to the extent of the conflict with the federal law, given the paucity of judicial precedent, this office cannot predict with certainty that a court would so find.

The United States Supreme Court has "approved bona fide residency requirements in the field of public education." Martinez v. Bynum, 461 U.S. 321, 326-27 (1983). Additionally, the Court has recognized "that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis." Vlandis v. Kline, 412 U.S. 441, 452-53 (1973). "This ‘legitimate interest' permits a ‘State [to] establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates.'" Bynum, 461 U.S. at 327 (quoting Vlandis, 412 U.S. at 453-54).

Accordingly, a federal or state court in Texas would likely conclude that Education Code sections 54.052(a)(3) and 54.053(3) do not facially violate the federal Equal Protection Clause because the statutory prerequisites for in-state tuition are reasonable requirements that serve Texas's legitimate or substantial interest in assuring that only bona fide residents that graduate from Texas high schools or receive the diploma equivalent from this state are eligible for in-state tuition. However, no court has addressed whether a statute similar to the Texas statutes conforms to the mandates of the Equal Protection Clause.

Opinion No. GA-0733

The Honorable Hope Andrade

Texas Secretary of State

Post Office Box 12697

Austin, Texas 78711-2697

Re: Effect of a final conviction for a felony or misdemeanor crime involving moral turpitude on a notary public's application or commission (RQ-0785-GA)

S U M M A R Y

The Secretary of State is precluded from appointing or commissioning as a notary public an applicant with a conviction of a felony or a crime involving moral turpitude. The Secretary of State may, but is not required to, initiate commission revocation proceedings against a notary public on the basis of a conviction of a felony or a crime involving moral turpitude.

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

TRD-200903194

Stacey Napier

Deputy Attorney General

Office of the Attorney General

Filed: July 28, 2009