Attorney General

Description of Attorney
General submissions. Under provisions set
out in the Texas Constitution, the Texas Government Code, Title
4, sec.402.042 and numerous statutes, the attorney general
is authorized to write advisory opinions for state and local
officials. These advisory opinions are requested by agencies
or officials when they are confronted with unique or unusually
difficult legal questions. The attorney general also determines,
under authority of the Texas Open Records Act, whether information
requested for release from governmental agencies maybe held from
public disclosure. Requests for opinions, opinions, and open
record decisions are summarized for publication in the Texas
Register. The Attorney General responds to many requests
for opinions and open records decisions with letter opinions.
A letter opinion has the same force and effect as a formal Attorney
General Opinion, and represents the opinion of the Attorney General
unless and until it is modified or overruled by a subsequent
letter opinion, a formal Attorney General Opinion, or a decision
of a court of record.



Opinions


DM-63 (RQ-210). Request
from Jeannene Fox, Acting
Administrator, Texas Alcoholic
Beverage Commission, P.O. Box
13127, Austin, Texas 78711-3127,
concerning rate of interest
on delinquent tax payments
under the Bingo Enabling
Act, Texas Civil Statutes,
Article 179d, sec.32(b).

Summary of Opinion.
House Bill 11, Acts 1991,
72nd Legislature, 1st Called
Session, Chapter 5, at
134 did not amend the
Bingo Enabling Act, sec.32(b).
Accordingly, the interest rate
on jeopardy determinations under
the Act, sec.32(b) remains
at 10% a year.

TRD-9200568


DM-64 (RQ-68). Request
from Joe E. Milner, Director,
Texas Department of Public
Safety, P.O. Box 4087,
Austin, Texas 78773-0001, concerning
whether the Texas Krishnas
may distribute religious literature
on Department of Public
Safety property.

Summary of Opinion.
Distributing literature and charitable
solicitation of funds are
expressive activities protected
by the first amendment
of the United States
Constitution. Balancing the Department
of Public Safety's interest
in limiting the use of
its property against the
interests of those who
wish to use the property
for expressive activity requires
findings of fact and
is not amenable to the
opinion process. If the
department has not opened
its property as a public
forum, it may restrict
access to the area as
long as the restriction
is reasonable and not
an effort to suppress
the views of a certain
group. On the other hand,
if it wishes to do
so, the department may
designate its property as
a public forum. In that
case, the department may
enact reasonable time, place,
and manner restrictions regulating
the use of its property
for expressive activity. The
Appropriations Act, Article V,
sec.83, does not prohibit
the department from permitting
groups to engage in such
activities on its property.

TRD-9200567


DM-65 (RQ-225). Request
from Bill Sims, Chairman,
Natural Resources Committee, Texas
State Senate, Capitol Building,
Room 421, Austin, Texas
78711-2068, concerning whether
the commissioner of education
has the authority to
create a new county education
district or to reassign
a school district to
another county education district.

Summary of Opinion.
The commissioner of education
is not authorized to
create, for inclusion of
the Mason Independent School
District, a new county
education district in addition
to those provided for
in the Education Code,
sec.20.941. Nor is the
commissioner authorized under the
Code, sec.20.949 to reassign
Mason Independent School District
to a different county
education district from that
to which the district
is assigned under sec.20.941.

TRD-9200566


DM-66 (RQ-122). Request
from Carmen Rivera-Worley, Val
Verde County Attorney, 207
East Losoya, Del Rio,
Texas 78840, concerning whether
a hospital district may
construct a building a
least to a private physician
and whether it may use
excess monies in its
interest and sinking fund
account to finance construction
of the building.

Summary of Opinion.
The Val Verde Hospital
District has express authority
pursuant to its enabling
statute to construct buildings
and to lease all or
part of its buildings.
Leasing of a hospital
district building to a
dialysis clinic for the
purpose of providing cost-effective
renal services adjacent to
the Val Verde Memorial
Hospital would serve a
"hospital purpose." Under these
circumstances, the hospital district
is authorized to construct
the proposed facility to
lease to a private physician.
The hospital district is
not authorized to use
excess monies in its
interest and sinking fund
account to finance construction
of the building.

TRD-9200565


DM-67 (RQ-148). Request
from Travis S. Ware,
Criminal District Attorney, Lubbock
County, P.O. Box 10536,
Lubbock, Texas 79408-3536, concerning
operation of a jail commissary
under the Local Government
Code, sec.351.0415.

Summary of Opinion.
The county commissioners court
may not interfere with
the sheriff's exercise of
discretion in contracting for
the operation of a jail
commissary under the Local
Government Code, sec.351.0415.
Any funds the sheriff
receives that are attributable
to the operation of the
commissary are to be
used for the benefit
of inmates in accordance
with sec.351.0415. The county
auditor is authorized to
review commissary accounts, even
if the accounts are maintained
by the operator of the
commissary.

TRD-9200564


DM-68 (RQ-96). Request
from Brenda H. Collier,
Chair, Texas Board of
Private Investigators and Private
Security Agencies, P.O. Box
13509, Austin, Texas 78711,
concerning whether Texas Civil
Statutes, Article 4413(29bb), authorizes
the Texas Board of Private
Investigators and Private Security
Agencies to bring disciplinary
proceedings against a licensee,
registrant, or commissioned security
officer indicted for or
charged with but not
convicted of the commission
of a felony.

Summary of Opinion.
Under Texas Civil Statutes,
Article 4413(29bb), the Texas
Board of Private Investigators
and Private Security Agencies
possesses neither the express
nor the implied power
to adopt 22 Texas Administrative
Code, sec.423.1(f)(2) and (f)(3).
Thus, the board may not
pursuant to Article 4413(29bb)
, sec.11B reprimand a
licensee registrant, or commissioned
security officer, or revoke
or suspend a license,
registration, or security officer
commission of a person
who has been indicted
for or charged with but
not convicted of a felony.
The board, however, is
authorized by the Act,
sec.11(a)(3) and (4) to
adopt rules prohibiting specific
criminal conduct, and on
proof of a person's violation
of such rules after notice
and hearing, revoke or
suspend that person's license,
registration, or commission as
provided by the Act,
sec.11B.

TRD-9200563


DM-69 (RQ-99). Request
from Lionel Meno, Ph.D.,
Commissioner of Education, Texas
Education Agency, 1701 North
Congress Avenue, Austin, Texas
78701-1494, concerning whether
a municipality can refuse
to issue building permits
or certificates of occupancy
to a school district
for failing to comply
with municipal building code
requirements on handicapped accessibility
where the school district
has obtained a waiver
under the State Purchasing
and General Services Act,
Article 7.

Summary of Opinion.
The City of El Paso
may refuse to issue a
building permit or certificate
of occupancy to the El
Paso Independent School District
for failing to comply
with municipal building code
requirements on handicapped accessibility,
notwithstanding the fact that
the school district is
in compliance with the
accessibility standards and specifications
adopted pursuant to the
State Purchasing and General
Services Act, Article 7,
Texas Civil Statutes, Article
601b, or has obtained
a waiver from such compliance
under that Act, sec.7.02(e).

TRD-9200562


Requests for Opinions


(RQ-252). Request
from Gary Watkins, Chairman,
Committee on Higher Education,
P.O. Box 2910, Austin,
Texas 78768-2910, concerning whether
a city council violates
the Open Meetings Act
when a majority of the
council signs a letter
which has not been authorized
in an open meeting.


(RQ-253). Request
from David Motley, Kerr
County Attorney, 323-B Earl
Garrett, Kerville, Texas 78028,
concerning construction of 37
Texas Administrative Code, 
sec.211.82(2), concerning licensing requirements
for constables, where constable
originally elected before September
1, 1985, seeks election
to precinct newly created
upon elimination of original
precinct through redistricting.


(RQ-255). Request
from Doyle Willis, Chairman,
General Investigating Committee,
P.O. Box 2910, Austin,
Texas 78768-2910, concerning application
of the Texas Constitution,
Article III, sec.47(b), which
requires that bingo games
be conducted, promoted, and
administered by a church
or other non-profit organizations.


(RQ-256). Request
from George Pierce, Chairman,
Committee on Urban Affairs,
Texas House of Representatives,
P.O. Box 2910, Austin,
Texas 78768-2910, concerning whether
Texas Civil Statutes, Article
601f, pertaining to payments
for goods and services
contracted for by state
or political subdivisions, applies
to payments by construction
contractors to construction subcontractors.


(RQ-257). Request
from Luis V. Saenz, Cameron
County District Attorney, 974
East Harrison Street, Brownsville,
Texas 78520, concerning effect
of House Bill 66 on
the salaries of statutory
county court judges.


(RQ-258). Request
from Major General William
C. Wilson, Adjutant General,
Texas Army National Guard,
P.O. Box 5218, Austin,
Texas 78763-5218, concerning questions
regarding the residence status
for tuition purposes of
members of the Texas
National Guard.


(RQ-259). Request
from Terry D. McEachern,
Hale County District Attorney,
Hale County Courthouse, Plainview,
Texas 79072, concerning whether
a county auditor's salary
is considered part of
the "amount budgeted for
expenses of the county
auditor's office" for the
purposes of the Local
Government Code, sec.111.013,
limiting increases in the
budget of the county
auditor's office.


(RQ-260). Request
from James F. Hury, Texas
House of Representatives, P.O.
Box 2910, Austin, Texas
78768-2910, concerning constitutionality
of City of League City's
proposed drug testing policy.


(RQ-261). Request
from Martha C. Agee,
Assistant City Attorney, P.O.
Box 2570, Waco, Texas
76702-2570, concerning whether
the subject of an HIV-antibody
test has a right to
a copy of a laboratory
report issued under a
fictitious name.


(RQ-262). Request
from Yvonne Kohutek, Chairperson,
Board of Examiners of
Professional Counselors, 1100 West
49th Street, Austin, Texas
78756-3183, concerning whether
licensed professional counselors
may use "projective techniques"
in certain circumstances.


(RQ-263). Request
from Merrill L. Hartman,
Chairman, Court Reporters Certification
Board, P.O. Box 13131,
Austin, Texas 78711-3131, concerning
whether a certified shorthand
reporter in the State
of Texas may contract
with a company or organization
for exclusive services wherein
the company instructs its
attorneys to use only
the court reporter(s) under
contract.


(RQ-264). Request
from Jeannene Fox, Acting
Administrator, Alcoholic Beverage
Commission, P.O. Box 13127,
Austin, Texas 78711-3127, concerning
authority of the Alcoholic
Beverage Commission to adopt
a rule regarding the
sale of alcohol to minors.


(RQ-265). Request
from Patricia S. Tweedy,
M.P.A., Executive Director, Texas
State Board of Examiners
of Psychologists, 9101 Burnet
Road, Suite 212, Austin,
Texas 78758, concerning whether
a licensed psychologist may
be required to obtain
a certificate of authority
to own or operate a
career counseling service.


(RQ-266). Request
from C. Thomas Camp,
Executive Director, State Board
of Dental Examiners, 327
Congress Avenue, Suite 500,
Austin, Texas 78701-4037, concerning
whether the State Board
of Dental Examiners has
the authority to establish
a committee to review
the duties of dental
health care workers infected
with the AIDS or HIV
virus and, if so, whether
such a committee would
have the authority to
require such workers to
report on the status
of their health for purposes
of determining their eligibility
to perform invasive procedures.


(RQ-267). Request
from Lawrence R. Jacobi,
Jr., P.E., General Manager,
Low-Level Radioactive Waste Disposal
Authority, 7701 North Lamar
Boulevard, Suite 300, Austin,
Texas 78752, concerning whether
the board of directors
of the Texas Low-Level
Radioactive Waste Disposal Authority
has the statutory authority
to order by rule that
not less than 10% planning
and implementation fees assessed
and deposited to the
low-level waste fund pursuant
to sec.402.272(a) be set
aside or designated for
impact assistance.


(RQ-268). Request
from Lionel R. Meno,
Commissioner, Texas Education Agency,
1701 North Congress Avenue,
Austin, Texas 78701-1491, concerning
interpretation of the prior
continuous service provision of
the nepotism law, and
related questions.

TRD-9200561