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.
Letter Opinions
LO-92-9 (RQ-358).
Request from Gary L.
Watkins, Chairman, Higher Education
Committee, Texas House of
Representatives, P.O. Box 2910,
Austin, concerning whether notice
that a community college
district board was to
consider selection of interim
chancellor satisfied requirements
of the Texas open Meetings
Act, Article 6252-17, Texas
Civil Statutes.
Summary of Opinion.
Whether any specific notice
constitutes a violation of
the Open Meetings Act,
Texas Civil Statutes, Article
6252-18, sec.3A(a) must ultimately
be determined by a trier
of fact.
LO-92-10 (RQ-129).
Request from Michael J.
Guarino, Criminal District Attorney,
Galveston County, 405 County
Courthouse, Galveston, concerning
whether a county commissioner
may serve as a trustee
of a school district.
Summary of Opinion.
At present, there are
no conflicts as to taxing
authority between the offices
of county commissioner and
trustee of a school district
that would render the
offices incompatible. Future legislation
on taxation by school
districts should be examined
to determine whether it
gives rise to a common
law incompatibility between the
two offices. Whether the
authority of the school
board under the Education
Code, sec.2.04, creates an
incompatibility between the two
offices depends on facts
as to the location of
land owned and used by
the school district.
LO-92-11 (ID-12647).
Request from Helen L.
Campbell, Office of Fire
Fighters' Pension, Commissioner,
3910 South IH-35, Suite
235, Austin, concerning authority
of Fire Fighters' Pension
Commissioner under Texas Civil
Statutes, Article 6243e.3 with
regard to volunteer fire
fighters pension contracts.
Summary of Opinion.
A contract entered into
pursuant to Texas Civil
Statutes, Article 6243e.3 may
not provide for the payment
of a monthly annuity
which is computed at
a rate greater than the
rate specified in sec.3(b)
of the act. The Fire
Fighters' Pension Commissioner
may not administer a
contract which calls for
payment of benefits in
violation of Article 6243e.3.
The commissioner may not
dictate to governmental bodies
the level of benefits
they provide to volunteer
fire fighters under the
act.
LO-92-12 (ID-15819).
Request from James F.
Hury, Jr., Representative, Texas
House of Representatives, P.O.
Box 2910, Austin, concerning
ticketing of unauthorized vehicle
parked on private property
in a "disabled" designated
parking space.
Summary of Opinion.
Pursuant to Texas Civil
Statutes, Article 6675a-1, 
sec.10, political subdivisions may
ticket unauthorized vehicles which
park in spaces on private
property designated for use
by vehicles transporting disabled
persons.
LO-92-13 (RQ-274).
Request from Bob Bullock,
Lieutenant Governor of Texas,
P.O. Box 2068, Austin,
concerning whether a rider
to the General Appropriations
Act may authorize the
Texas Public Finance Authority
to issue revenue bonds
to finance construction of
a state office building
in Nueces County.
Summary of Opinion.
Section 125 of the current
General Appropriations Act is
a valid method by which
the legislature may authorize
the issuance of revenue
bonds to finance construction
of a state office building
in Nueces County.
LO-92-14 (RQ-339).
Request from Robert Eckels,
Chairman, Committee on County
Affairs, Texas House of
Representatives, P.O. Box 2910,
Austin, concerning whether the
County Court of Taylor
County has jurisdiction over
juvenile matters.
Summary of Opinion.
The County Court of Taylor
County does not have
jurisdiction over juvenile matters.
The Juvenile Board of
Taylor County may designate
one or more of the
following as the Juvenile
Court(s) of Taylor County:
the District Courts of
Taylor County; and the
Statutory County Courts of
Taylor County.
LO-92-15 (RQ-175).
Request from Burton F.
Raiford, Interim Commissioner,
Texas Department of Human
Services, P.O. Box 149030,
Austin, concerning whether an
employee of the Department
of Human Services may
take sick leave to care
for an ill child for
whom she is a managing
or possessory conservator, where
the child is not a
member of the employee's
"immediate family" as defined
in the General Appropriations
Act, Article V, sec.8(2).
LO-92-16 (ID-16325).
Request from Steven D.
Wolens, Chairman, Business and
Commerce Committee, Texas Housing
of Representatives, P.O. Box
2910, Austin, concerning expenditure
of hotel occupancy tax
revenues.
Summary of Opinion.
Hotel occupancy tax funds
may only be expended
in conformity with Chapter
351 of the Tax Code.
LO-92-17 (RQ-296).
Request from Alvin Roy
Granoff, Chairman, Committee on
State, Federal and International
Relations, Texas House of
Representatives, P.O. Box 2910,
Austin, concerning whether a
hearing examiner may be
named a party defendant
or subpoenaed to testify
in an appeal of a
civil service award under
the Local Government Code,
sec.143.057(j).
Summary of Opinion.
A third party hearing
the Local Government Code,
sec.143.057 is not a
necessary or indispensable defendant
to an appeal of the
hearing examiner's award, but
may be joined in a
proper case as a defendant.
Texas case law to date
indicates that a third
party hearing examiner may
be called to testify
in such an appeal.
LO-92-18 (RQ-316).
Request from Bill Turner,
Brazos County District Attorney,
300 East 26th Street,
Suite 310, Brazos County
Courthouse, Bryan, concerning the
legality of casino night
events at Texas A&M University.
Summary of Opinion.
The described "casino night"
activities would violate the
Penal Code, sec.47.02 prohibition
on gambling-"making bets"-unless
as a matter of fact
the activities in question
fall within the "carnival
contests" exception to the
definition of "bet" in
the Penal Code, sec.47.01(C)
and (D). Whether the
"private place" defense to
prosecution for such activities
would be available would
also involve questions of
fact.
LO-92-19 (ID-16011).
Request from Charles D.
Johnson, County Attorney, Dimmit
County Courthouse, Carrizo Springs,
concerning whether a trustee
of an independent school
district vacates her office
by moving outside of
the county in which the
district is located.
Summary of Opinion.
Under the Texas Constitution,
Article XVI, a trustee
on the board of trustees
of an independent school
district vacates her office
if she relinquishes her
residence in the district
by moving to a location
outside the district and
presently intends to change
her residence. If, however,
she has left the district
only temporarily without intending
to change her residence,
the trustee position she
holds is not vacant.
LO-92-20 (RQ-345).
Request from Larry A.
Farrow, Executive Director, Texas
Funeral Service Commission, 8100
Cameron Road, Building B,
Suite 550, Austin, concerning
whether the El Paso County
Commissioners Court may authorize
the El Paso Medical Examiner
to charge a fee for
the storage of human
bodies.
Summary of Opinion.
The order of the El
Paso Commissioners Court establishing
a storage fee for human
bodies at the El Paso
County Morgue (or the
office of medical examiner)
is invalid because there
is no statute authorizing
the commissioners court to
establish such a fee.
LO-92-21 (RQ-328).
Request from Michael G.
Mask, Jack County Attorney,
County Courthouse, Third Floor,
Jacksboro, concerning whether a
county's reduction of the
number of justice of
the peace precincts to
one also reduces the
number of constable positions
to one.
Summary of Opinion.
By reducing the number
of county justice of
the peace positions to
one, Jack County also
thereby reduced the number
of constable positions to
that number.
LO-92-22 (RQ-312).
Request from Michael J.
Guarino, Criminal District Attorney,
Galveston County, 405 County
Courthouse, Galveston, concerning
whether a commissioners court
may refuse to fund positions
in a tax assessor's office.
Summary of Opinion.
Determining whether the commissioners
court would abuse its
discretion by refusing to
fund positions in the
tax assessors office would
involve questions of fact.
Determining whether the tax
assessor could be personally
liable for acts of an
appraisal district which had
contracted with the county
to perform appraisal functions
would also involve questions
of fact that cannot be
addressed in the opinion
process.
LO-92-23 (ID-16403).
Request from Leslie V.
Vance, Criminal District Attorney,
Eastland County, P.O. Box
527, Eastland, concerning jurisdiction
of justice courts in
misdemeanor cases.
Summary of Opinion.
A justice court properly
has jurisdiction only in
those criminal cases in
which the fine does not
exceed five hundred dollars.
LO-92-24 (RQ-341).
Request from Judith M.
Porras, General Counsel, General
Services Commission, 1711 San
Jacinto, P.O. Box 13047,
Austin, concerning whether Texas
Civil Statutes, Article 601b,
sec.3.102, applies to a
bid of contract that
includes proposed financial participation
by certain former state
employees.
Summary of Opinion.
Texas Civil Statutes, Article
601b, sec.3.102, applies to
a bid or contract to
be accepted or awarded
by a state agency that
includes financial participation
by a former employee
who received either salary,
wages or other compensation
from the agency to participate
in the preparation of
specifications for that bid
or contract.
LO-92-25 (RQ-381).
Request from Mike Driscoll,
Harris County Attorney, 1001
Preston, Suite 634, Houston,
concerning whether a county
is required to give security
for costs when it contests
an application for a
beer license pursuant to
the Texas Alcoholic Beverage
Code, sec.61.39, and related
questions.
Summary of Opinion.
Neither attorneys' fees nor
the delay due to a
license challenge are recognized
costs under the Texas
Alcoholic Beverage Code, 
sec.61.39.
A county, city or town is not required to post costs under
sec.61.39.
LO-92-26 (RQ-347).
Request from Marvin J.
Tizman, Executive Director, Texas
Surplus Property Agency, P.O.
Box 8120, San Antonio,
concerning whether a tax-exempt,
nonprofit corporation which is
exempt from the Texas
Proprietary School Act by
the Texas Education Code,
sec.32.12(a)(2) is an "approved,
accredited or licensed" "school"
for purposes of the act.
Summary of Opinion.
A tax-exempt, nonprofit corporation
that has obtained an
exemption pursuant to sec.32.12(a)(2)
of the Education Code
is not a "school" "approved,
accredited or licensed" under
the Texas Proprietary School
Act.
LO-92-27 (ID-16633).
Request from Glen Hartman,
Executive Director, Texas Public
Finance Authority, P.O. Box
12906, Austin, and Andrew
Sansom, Executive Director, Texas
Parks and Wildlife Department,
4200 Smith School Road,
Austin, concerning constitutionality
of Senate Bill 3, Acts
1991, 72nd Legislature, 1st
Called Session, Chapter 4,
sec.14.07 and sec.14.09, at
98, 118-19, regarding issuance
of park development bonds.
Summary of Opinion.
Sections 14.07 and 14.09
of Senate Bill 3, Acts
1991, 72nd Legislature, 1st
Called Session, Chapter 4,
at 118-19, are constitutional,
and together they authorize
the Texas Public Finance
Authority to act as the
issuer and seller of
bonds which have been
"provided for" by the
Texas Parks and Wildlife
Department.
   
   
Open Records Decisions
ORD-588 (RQ-2181).
Request from Philip Barnes,
Commissioner, State Board of
Insurance, Austin, concerning application
of the litigation exception
of the Open Records Act,
Texas Civil Statutes, Article
6252-17a, sec.3(a)(3), to pending
and contemplated administrative
hearings.
Summary of Decision.
 Information related to
a contested case before
an administrative agency, to
which the state is, or
may be, a party, is
"information relating to litigation"
within sec.3(a)(3) of the
Open Records Act, Texas
Civil Statutes, Article 6252-17a.
Texas Civil Statutes, Article
6252-17b, requires licensing agencies
to maintain files about
its licensees in a manner
that permits public access
to all information about
them, unless the information
is within an exception
to the Open Records Act,
or is made confidential
by some other provision
of law.
ORD-589 (RQ-81).
Request from Mark T.
Sokolow, City Attorney, City
of League City, League
City, concerning disclosure of
attorney bills under the
Open Records Act.
Summary of Decision.
 Attorney fee bills
may be withheld under
the Open Records Act,
Texas Civil Statutes, Article
6252-17a, sec.3(a)(7) only if
they reveal client confidences
or attorney advice.
ORD-590 (RQ-2183).
Request from Genevieve G.
Stubbs, First Assistant General
Counsel, Texas A&M University
System, College Station, concerning
availability under the Texas
Open Records Act of information
identifying donors and amount
of donations to West
Texas State University.
Summary of Decision.
 Information identifying donors
or pledgors, and amounts
of donations and pledges,
including outstanding pledges,
to a public university
is not within an exception
to the Texas Open Records
Act.
ORD-591 (RQ-33).
Request from Jeff W.
Ryan, Cowles and Thompson,
Irving Hospital Authority, Dallas,
concerning whether a patient
has a right under the
Open Records Act, sec.3B(a)
to see peer review committee
documents pertaining to him.
Summary of Decision.
 The main purpose
of the confidentiality provision
of the Health and Safety
Code, sec.161.032 and Texas
Civil Statutes, Article 4495b,
sec.5.06(g) the Medical Practice
Act, is to encourage
frank discussion, not to
protect patient privacy. Therefore,
a patient whose treatment
is the subject of such
records has no special
right of access to such
records under the Open
Records Act, sec.3B(a).
ORD-593 (RQ-10).
Request from Wayne Blevins,
Executive Secretary, Teacher Retirement
System of Texas Austin,
concerning whether information
about the Teacher Retirement
System's investment in a
building is excepted from
disclosure under the Open
Records Act, Texas Civil
Statutes, Article 6252-17a, 
sec.3(a)(4).
Summary of Decisions.
 The Teacher Retirement
System, as an entity
that is authorized by
both constitutional and statutory
law to invest its securities,
may be deemed, with regard
to those investments, a
"competitor" in the marketplace
for purposes of the Open
Records Act, Texas Civil
Statutes, Article 6252-17a, 
sec.3(a)(4). Whether release of
particular information would harm
the legitimate marketplace interests
of the system requires
a showing of the possibility
of some specific harm
in a particular competitive
situation. Here, TRS has
made such a showing.
ORD-599 (RQ-2121).
Request from William Grossenbacher,
Administrator, Texas Employment
Commission, Austin, concerning
whether certain information submitted
by employers to the Texas
Employment Commission is subject
to disclosure under the
Open Records Act, Texas
Civil Statutes, Article 6252-17a.
Summary of Decisions.
 Texas Civil Statutes,
Article 5221b-9(g), makes confidential
information the Texas Employment
Commission obtains in employment
records and reports, including
SIC numbers and the number
of employees of an employing
unit. Texas Employment Commission
identification numbers are excepted
from disclosure by the
Open Records Act, sec.3(a)(1),
because federal regulations prohibit
their public disclosure.
ORD-600 (RQ-103).
Request from J. Kirk
Brown, General Counsel, Texas
Department of Criminal Justice,
Huntsville, concerning availability
under Open Records Act
of personnel records of
employees of the Texas
Department of Criminal Justice.
Summary of Decision.
 The Institutional Division
of the Texas Department
of Criminal Justice received
requests under the Texas
Open Records Act, Texas
Civil Statutes, Article 6252-17a,
for information in the
personnel files of certain
employees. Several categories of
information were found to
be excepted from public
disclosure.
The Open Records Act, sec.3(a)(17)(B), adopted by House
Bill 729 of the 72nd Legislative Session and effective May 8,
1991, excepts from disclosure the home addresses, home telephone
number, or social security numbers of employees of the Texas
Department of Criminal Justice. it also excepts the home or employment
address or telephone numbers or the names or social security
numbers of family members of employees of the department. This
information is excepted from disclosure wherever it appears in
the personnel files.
The result of a personality test given by the Department of
Criminal Justice to an employee is excepted from public disclosure
by a constitutional right of privacy. The score on an intelligence
test given to an employee is excepted from public disclosure
by a common-law right of privacy.
Information about on-the-job injuries in medical records created
by or under the supervision of a physician or maintained by a
physician is excepted from public disclosure by Texas Civil Statutes,
Article 4495b, sec.5.08(b). Whether or not a report by the
injured person or a witness to the accident contains private
information depends on the nature of the injury and other facts
included in the report.
The W-4 forms completed by employees are excepted from disclosure
by the United States Code, Title 26, sec.6103(a).
TexFlex forms, showing the employee's decision about participation
in this benefit program, concern a private financial decision
to allocate compensation to optional benefits provided by a third
party; thus these forms are excepted from public disclosure by
a common-law right of privacy. Forms authorizing the direct deposit
of the employee's paycheck also document a private decision as
to allocation of compensation to a third party and are excepted
from disclosure.
Authorizations for social security leveling include facts
about the employee's receipt of compensation from the state as
his employer and are not excepted from disclosure by a right
of privacy.
The employee's participation in the group insurance program
is in part a transaction with the state. Information on his application
form relevant to his enrollment for basic and dependent health
coverage offered pursuant to Article 3.50-2 of the Insurance
Code is not excepted from disclosure by a common-law right of
privacy. Certain information on the form is excepted from disclosure
by the Open Records Act, sec.3(a)(17)(B). The remaining information
on optional coverages, dependent information, and designation
of a beneficiary of his life insurance is excepted from disclosure
by a right of privacy.
Employee Services Option forms, which offer the employee laundry
services and barber shop services at prison facilities in exchange
for a small fee, relate to a transaction between the employee
and the governmental body and are therefore not excepted from
disclosure by a right of privacy.
Information in personnel evaluation forms that consists of
opinion, advice, and recommendation used in the decisional process
within the agency is excepted from disclosure by the Open Records
Act, sec.3(a)(11).
ORD-601 (RQ-2168).
Request from Norman J.
Gordon, Attorney At Law,
Diamond, Rash, Leslie, Smith
and Samaniego, El Paso,
concerning whether the El
Paso Housing Finance Corporation
is a governmental body
under the Texas Open
Records Act.
Summary of Decisions.
 The El Paso Finance
Corporation is a governmental
body under the Texas
Open Records Act, sec.2(a)(G).
ORD-602 (RQ-228).
Request from Laura Peterson
House, Locke Purnell Rain
Harrell, Dallas, concerning whether
the Dallas Museum of
Art is a "governmental
body" under the Texas
Open Records Act, Texas
Civil Statutes, Article 6252-17a,
sec.2(1)(G), and related questions.
Summary of Decisions.
 The Dallas Museum
of Art is a "governmental
body" within the meaning
of the Texas Open Records
Act only to the extent
that it receives support
from the City of Dallas
and the State of Texas.
Thus, only documents relating
to those sections of
the museum that are supported
by the city or state
are public documents subject
to the Open Records Act.
Documents related to areas
of the DMA that are
not supported with public
funds are not subject
to the Open Records Act.
ORD-603 (RQ-91).
Request from Robert A.
MacLean, M.D., Acting Commissioner,
Texas Department of Health,
Austin, concerning whether an
individual has a right
under the Open Records
Act, sec.3B, to inspect
information about himself in
the records of a Department
of Health investigation of
a complaint against a
home health services agency.
Summary of Decisions.
 The Open Records
Act, sec.3B, does not
affect the availability of
information developed in a
Department of Health investigation
of complaints about a
home health agency under
Health and Safety Code,
sec.142.009. Such information
is confidential under Health
and Safety Code, sec.142.009(d)
and excepted from public
disclosure under Open Records
Act, sec.3(a)(1).
ORD-604 (RQ-192).
Request from Karen Johnson,
Executive Director, State Bar
of Texas, Austin, concerning
list of registrants for
Professional Development Programs.
Summary of Decisions.
 A list of registrants
for legal education programs
of the State Bar of
Texas may not be withheld
from disclosure under the
Open Records Act, Texas
Civil Statutes, Article 6252-17a,
sec.3(a)(4).
ORD-605 (RQ-366).
Request from Jack Skeen,
Jr., Criminal District Attorney,
Smith County Courthouse, Tyler,
concerning whether the Open
Meetings Act, sec.2(g) excepts
from required disclosure under
the Open Records Act
the names of applicants
for public employment discussed
by the governmental body
in an executive session.
Summary of Decisions.
 The Open Meetings
Act, sec.2(g), is not
an exception to the Open
Records Act, and it does
not authorize a governmental
body to withhold its
records of the names
of applicants for public
employment who were discussed
in an executive session.
ORD-606 (RQ-376).
Request from Trudi Dill,
Deputy City Attorney, City
of Temple, Temple, concerning
whether information held to
be protected from disclosure
under the Texas Open
Records Act may be retyped,
with ellipses or asterisks
indicating omitted information,
as opposed to merely
excised from existing documents.
Summary of Decisions.
 The Open Records
Act, Texas Civil Statutes,
Article 6252-17a, requires a
governmental body to release
to a requestor a copy
of the actual requested
record, with any confidential
or nondisclosable information excised.
Unless the parties agree
otherwise, the act does
not permit a governmental
body to provide a requestor
with a newly generated
document on which only
the disclosable information has
been consolidated and retyped.
ORD-607 (RQ-389).
Request from Earl Bracken,
Jr., Waco City Attorney,
Waco, concerning whether the
subject of an HIV antibody
test has a right to
a copy of a laboratory
report issued under a
fictitious name.
Summary of Decisions.
 A laboratory report
of the results of a
test for HIV antibodies
administered under the authority
of a physician is made
confidential of the Medical
Practice Act, Texas Civil
Statutes, Article 4495b, 
sec.5.08(b). A patient may
obtain copies of his
or her records in accordance
with the provisions of
subsections (j) and (k)
of sec.5.08.
   
   
Opinions
DM-137 (RQ-383).
Request from Cathy Bonner,
Executive Director, Texas Department
of Commerce, Austin, concerning
whether a municipality which
has levied a sales tax
under Texas Civil Statutes,
Article 5190.6, sec.4A(d), may
reduce or eliminate the
tax after issuance of
the bonds for which the
tax was levied.
Summary of Opinion.
Where pursuant to subsections
(n) and (o) of Texas
Civil Statutes, Article 5190.6,
sec.4A, an election is
held to reduce the sales
and use tax rate collected
by a municipality on
behalf of an industrial
development corporation, or to
limit the length of time
during which the tax
may be collected, such
reduction or limitation may
not be applied to any
bonds issued prior to
the date of the election.
DM-138 (RQ-301).
Request from Rene Guerra,
Criminal District Attorney, Hidalgo
County Courthouse, Edinburg, concerning
whether the Edinburg Hospital
Authority may pay physicians
a flat fee or per
diem to be on call
to admit emergency room
patients to the hospital
without violating the Health
and Safety Code sec.161.091,
which prohibits remuneration for
securing or soliciting patients.
Summary of Opinion.
Assuming that the Edinburg
Hospital Authority's contracts
with physicians for the
purposes of admitting emergency
room patients to the
hospital conform with the
criteria set forth in
sec.1001. 952(d) of Title
42 of the Code of
Federal Regulations, payments made
under such contracts would
not be prohibited by
the Health and Safety
Code, sec.161. 091.
DM-139 (RQ-66). Request
from Mike Driscoll, Harris
County Attorney, Houston, concerning
whether a justice of
the peace is required
to maintain a hard copy
of the criminal docket
if he or she has
chosen to maintain such
records electronically.
Summary of Opinion.
A justice of the peace
may maintain the criminal
docket in the justice
court electronically in addition
to or in lieu of
printed paper media. The
justice is not required
to simultaneously maintain printed
paper copies of the electronically
stored docket.
DM-140 (RQ-326).
Request from D.R. "Tom"
Uher, Chairman, Committee on
Redistricting, Texas House of
Representatives, Austin, concerning
the status of the West
Brazoria County Drainage District,
and related questions.
Summary of Opinion.
The commissioners court of
Brazoria County at present
constitutes the governing board
of the West Brazoria
County Drainage District. As
such, it may set a
tax rate and call an
election to seek voter
approval therefor. The commissioners
court, acting as the
board, should establish single-member
districts based on the
1990 census, and call
an election for the first
Saturday in April 1993.
DM-141 (RQ-329).
Request from John Sharp,
Comptroller of Public Accounts,
L.B.J. State Office Building,
Austin, concerning whether the
procedure for adjusting the
rate of assessment the
Public Utility Commission specified
in Title 16 of the
Texas Administrative Code, 
sec.21.182 and sec.23.5 satisfies
Texas Civil Statutes, Article
1446c, sec.78, which requires
the commission to adjust
the rate of assessment
"subject to the approval
of the Legislature," and
related questions.
Summary of Opinion.
Section 78 of the Public
Utility Regulatory Act does
not delegate any authority
to the Public Utility
Commission to adjust the
level of assessment. Thus,
only the legislature is
authorized to adjust the
level of assessment. An
order the PUC has adopted,
to be effective August
17, 1992, reducing the
level of assessment, is
without authority and therefore
invalid. Likewise, Title 16
of the Texas Administrative
Code, sec.21.182, setting forth
the procedure the PUC
must use to adjust the
level of assessment, is
invalid.
DM-142 (RQ-138).
Request from Merrill L.
Hartman, Chairman, Court Reporters
Certification Board, Austin, concerning
whether the Court Reporters
Certification Board is subject
to Texas Civil Statutes,
Article 6252-13f, which establishes
the State Office of Administrative
Hearings.
Summary of Opinion.
The Court Reporters Certification
Board is not subject
to Texas Civil Statutes,
Article 6252-13f, which establishes
the State Office of Administrative
Hearings.
DM-143 (RQ-309).
Request from Lionel R.
Meno, Commissioner of Education,
Texas Education Agency, Austin,
concerning whether the Proprietary
School Tuition Protection Fund
as created by the Texas
Education Code, sec.32. 91,
manifests sufficient characteristics
of a trust to require
interest from the fund
to be credited to the
Tuition Protection Fund rather
than the General Revenue
Fund.
Summary of Opinion.
The proprietary School Tuition
Protection Fund, created pursuant
to the Education Code,
sec.32.91, is not a
trust fund. Consequently, interest
that accrues on the fund
must be credited to the
general revenue fund pursuant
to the Government Code,
sec.404.071(a).
DM-144 (RQ-97). Request
from John Hall, Chairman,
Texas Water Commission, Austin,
concerning whether a Water
Commission hearings examiner in
a contested case about
issuance of a hazardous
waste permit may communicate
ex parte with other employees
of the commission.
Summary of Opinion.
The Health and Safety
Code, sec.361.0831, prohibits
a hearings examiner in
a contested case involving
a hazardous waste permit
from communicating ex parte
with any employee of
the commission. This provision
does not permit ex parte
communications between hearings
examiners and employees of
the agency who have not
participated in any hearing
of the case for the
purpose of utilizing their
special skills or knowledge,
or communications of hearings
examiners with supervising attorneys
within the Office of
Hearings Examiners. Section 361.0831
also prohibits direct and
indirect communications between
the hearings examiner and
the commissioners or the
general counsel. If the
supervising attorney engages in
ex parte communications with
the hearings examiner in
violation of sec.361.0831 and
then relays those communications
to a commissioner or
the general counsel, indirect
ex parte communications
between the hearings examiner
and the commissioner or
general counsel will occur.
The restriction on ex
parte communications applies
during the pendency of
the contested case. Accordingly,
if the commission overturns
an examiner's finding of
fact or conclusion of
law or rejects a proposal
for decision on an ultimate
finding, the general counsel
of the commission may
not communicate ex
parte with the examiner
about preparing an explanation
of the reasons for the
commission's actions.
DM-145 (RQ-180).
Request from Rick Perry,
Commissioner, Texas Department
of Agriculture, Austin, concerning
interpretation of appropriations
act rider regarding funds
held by the Texas Federal
Inspection Service.
Summary of Opinion.
Money that reverted to
the Texas Department of
Agriculture under a cooperative
agreement with the United
States Department of Agriculture
is to be placed in
the state treasury in
accordance with the Government
Code, sec.404.093. Surplus property
that reverted to the
Texas Department of Agriculture
is subject to the control
of the General Services
Commission.