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-92-34 (RQ-213).
Request from Rita Horwitz,
Executive Director, State Pension
Review Board, Austin, concerning
question concerning where the
board of trustees of
the Austin Employees Retirement
System should post notice
of its meetings.


Summary of Opinion.
The board of trustees
of the City of Austin
Employees Retirement System is
an "agency of the city"
under sec.1(c) of Texas
Civil Statutes, Article 6252-17,
the Open Meetings Act,
and, as such, should
post notice of its meetings
"on a bulletin board
to be located at a
place convenient to the
public in the city hall,"
pursuant to sec.3A(c).


TRD-9213167







LO-92-35 (RQ-240).
Request from James M.
Kuboviak, Brazos County Attorney,
County Courthouse, Bryan, concerning
whether a justice of
the peace may be an
unpaid deputy sheriff or
deputy constable.


Summary of Opinion.
The common-law doctrine of
incompatibility prohibits an individual
from simultaneously holding the
positions of justice of
the peace and deputy
constable in the same
precinct. However, there is
no bar to a justice
of the peace serving
as deputy constable in
a different precinct, whether
within or without his
home county. Likewise, a
justice of the peace
may hold the position
of deputy sheriff in
a county other than the
county he serves as justice
of the peace.


TRD-9213166







LO-92-36 (RQ-17053).
Request from Gonzalo Barrientos,
Chairman, Nominations Committee,
Texas State Senate, Austin,
concerning whether Article XVI,
sec.40 of the Texas
Constitution precludes a person
from simultaneously holding the
position of police officer
for two different cities
and related questions.


Summary of Opinion.
Article XVI, sec.40 of
the Texas Constitution, prevents
one person from simultaneously
holding the position of
assistant police chief for
the city of Houston and
police chief for the
city of Austin. An individual
may, however, under the
facts presented, act as
a "consultant" for the
city of Austin without
thereby vacating the Houston
position, so long as
the individual is not
a "peace officer" in
the city of Austin. A
person may prospectively accept
a second office without
thereby vacating the first,
so long as the terms
of the offer and acceptance
specify a future "effective
date. "


TRD-9213165







LO-92-37 (RQ-15534).
Request from Helen L.
Campbell, Commissioner, Office
of Fire Fighters', Pension
Commissioner, Austin, concerning
whether the board of
trustees of a fire fighters'
relief and retirement fund
organized under Texas Civil
Statutes, Article 6243e, may
delegate all of its authority
over investments to investment
managers.


Summary of Opinion.
The board of trustees
of a fire fighters' relief
and retirement fund organized
under Texas Civil Statutes,
Article 6243e, is not
empowered to delegate its
entire discretionary authority
over investment decisions to
an investment manager.


TRD-9213164







LO-92-38 (RQ-16593).
Request from Joe Darnall,
General Counsel, Texas Alcoholic
Beverage Commission, Austin, concerning
whether the proposed reorganization
of the Alcoholic Beverage
Commission comports with provisions
of the Bingo Enabling
Act.


Summary of Opinion.
Based on the information
provided, the proposed reorganization
of the operating structure
of the Texas Alcoholic
Beverage Commission is at
least in substantial compliance
with the provisions of
the Bingo Enabling Act.


TRD-9213163







LO-92-39 (RQ-349).
Request from Patricia S.
Tweedy, M.P.A., Executive Director,
Texas State Board of
Examiners of Psychologists, Austin,
concerning whether privileged information
relevant to the parent-child
relationship that a psychologist
gained during a voluntary
psychological evaluation of a
person involved in, or
associated with, court proceedings
involving the parent-child relationship
are excepted from disclosure
under Texas Rule of Civil
Evidence, sec.510(d)(6).


Summary of Opinion.
Pursuant to Texas Rule
of Civil Evidence, sec.510(d)(6),
a licensed psychologist may
disclose privileged information
if the information is
relevant in any suit
affecting the parent-child relationship.
The Opinion Committee will
not issue an opinion
that effectively overrules a
judicial decision.


TRD-9213162







LO-92-40 (RQ-308).
Request from R. Smith,
M.D., Commissioner, Texas Department
of Health, Austin, concerning
whether the Department of
Health or a county clerk
has the authority to
rescind a marriage license.


Summary of Opinion.
Neither the Department of
Health nor a county clerk
has the power to rescind
or cancel an application
for a marriage license,
or a license itself,
at the request of an
affiant who asserts, 
inter alia, that
he is not subject to
the Family Code. Any
residing in any county
of Texas is subject to
the laws of Texas, including
the Family Code.


TRD-9213158







LO-92-41 (RQ-327).
Request from Ray Farabee,
Vice Chancellor and General
Counsel, The University of
Texas System, Austin, concerning
whether the board of
regents of the University
of Texas System has the
legal authority to provide
prepaid legal services coverage
to its employees as part
of the university's cafeteria
plan.


Summary of Opinion.
Under the Insurance Code,
Article 3.50-3, The University
of Texas System may include
in its cafeteria plan
prepaid legal services coverage
so long as federal law
permits the inclusion of
the prepaid legal services
coverage in a cafeteria
plan. Whether federal law
permits the inclusion of
prepaid legal services coverage
in a cafeteria plan is
a question involving the
resolution of issues of
federal law, a task that
is beyond the purview
of this committee. The
university's inclusion of prepaid
legal services coverage in
the employee benefit package
does not violate, the
Texas Constitution, Article III,
sec.51 if the university
decides in the first
instance that such an
expenditure serves a "public
purpose."


TRD-9213157







LO-92-42 (RQ-314).
Request from Ernestine V.
Glossbrenner, Chair, Committee
on Public Education, Texas
House of Representatives, Austin,
concerning whether the Education
Code, sec.4.03(d), supersedes
the rules the Structural
Pest Control Board promulgated
(22 TAC Chapters 593,
595) pursuant to House
Bill 853, Acts 1991,
72nd Legislative Chapter 771,
sec.6, which amended the
Texas Structural Pest Control
Act, Texas Civil statutes,
Article 135b-6.


TRD-9213156







LO-92-43 (RQ-15752).
Request from Riley J.
Simpson, President, Board of
Trustees, Central Texas College,
Killeen, concerning whether the
hiring of an employee
by Central Texas College
while the employee's uncle
serves on the college
board of trustees violates
Texas Civil Statutes, Article
5996a; whether re-election of
board member cures original
nepotism violation.


Summary of Opinion.
The hiring of an employee
by Central Texas College
while the employee's uncle
serves on the college's
board of trustees violates
Texas Civil Statutes, Article
5996a, the Texas nepotism
statute. The re-election of
the uncle to the board
of trustees does not
cure the original violation.


TRD-9213155







LO-92-44 (RQ-13).
Request from Frank Madden,
County Auditor, Cherokee County
Courthouse, Rusk, concerning responsibility
of the commissioners court
with respect to district
court order decreeing pay
increases for district court
personnel.


Summary of Opinion.
District judges, acting without
commissioners court approval, establish
the salaries of the county
auditor, the auditor's assistants,
and court reporters. The
commissioners court must approve
salaries for court coordinators
and secretaries, and therefore
has no duty to order
the salary increases for
those positions in accordance
with a district court
administrative order.


TRD-9213154







LO-92-45 (RQ-16646).
Request from Layton Black,
Chairman, Committee on Government
Organization, Texas House of
Representatives, Austin, concerning
application of the term
"grave" in Penal Code,
sec.31.03(e)(4)(B).


Summary of Opinion.
The term "grave" as used
in Penal Code, sec.31.
03(e)(4)(B), means an excavation
for burial of a body.
The term is not limited
by definition in the
Penal Code and applies
to any grave, regardless
of ethnicity, antiquity, or
markings.


TRD-9213153







LO-92-46 (RQ-242).
Request from Catherine A.
Ghiglieri, Commissioner, Texas
Department of Banking, Austin,
concerning whether a member
of the Finance Commission
Statutes, Article 342-104(4) may
continue in office if
he becomes a banking
executive but has less
than five years experience.


TRD-9213152


Summary of Opinion.
Part 4 of Texas Civil
Statutes, Article 342-104, provides
that certain members of
the Finance Commission may
not be bank executives.
Part 1 of Article 342-104,
Texas Civil Statutes, provides
that "a banking executive
is a person who has
had five years or more
executive experience...in a Federal
or State bank," but that
definition does not define
"banking executive" for purposes
of Part 4 of Texas
Civil Statutes, Article 342-104.
Accordingly, part 4 prohibits
Finance Commission of any
person who is a banking
executive, even if that
person has fewer than
five years experience in
that capacity. A member
of the Finance Commission
of Article 342-104 will
become disqualified for this
office and be subject
to removal if he becomes
a banking executive during
his term of office.







LO-92-47 (RQ-229).
Request from Wayne Blevins,
Ed.D, Executive Secretary, Teacher
Retirement System of Texas,
Austin, concerning whether the
Board of Trustees of
the Teacher Retirement System
of Texas may contract
with an employee to provide
incentive pay in addition
to a regular salary.


Summary of Opinion.
The Board of Trustees
of the Teacher Retirement
System of Texas may contract
with an employee to provide
incentive pay in addition
to a regular salary without
violating Article III, 
sec.44 of the Texas Constitution,
so long as the contract
pre-dates the services being
compensated.


TRD-9213151







LO-92-48 (RQ-15641).
Request from Bruce Isaacks,
Criminal District Attorney, Denton
County, Denton, concerning whether
employees of the sheriff's
department are included in
the county civil service
system under the Local
Government Code, Chapter 158,
Subchapter A.


Summary of Opinion.
Eligibility for inclusion in
a county civil service
system created pursuant to
the Local Government Code,
Chapter 158, Subchapter A,
depends upon whether the
person occupying the position
in question is an "employee"
as defined in section
sec.158.001(2). An examination
of the specific statute,
if any, authorizing the
filling of the position
in question is required
in order to determine
whether the legislature intended
to exclude the employee
from the county civil
service system.


TRD-9213150







LO-92-49 (RQ-391).
Request from Roman Martinez,
Chairman, Committee on Labor
and Employment Relations, Austin,
concerning whether the Port
of Houston Authority of
Harris County may purchase
real property and facilities,
thereby removing the property
from the tax base and
related question.


Summary of Opinion.
As long as the Port
of Houston Authority of
Harris County desires to
purchase property that will
be incidental to or useful
in the operation or development
of the authority's ports
and waterways or to aid
navigation and navigation-related
commerce, the applicable statutes
authorize the authority to
purchase the property. The
fact that the authority's
purchase will take the
property out of the tax
base is irrelevant. The
question of whether the
authority may use tax
supported funds to purchase
the property involves the
resolution of fact issues,
a task this committee
cannot perform.


TRD-9213149







LO-92-50 (RQ-17039).
Request from Roy W. Wiesner,
Waller County Auditor, Hempstead,
concerning authority of a
county auditor to prescribe
accounting procedures and computerize
accounting systems for elected
officials.


Summary of Opinion.
A county auditor in a
county with a population
of less than 25,000 may
prescribe accounting procedures
county officials and may
prescribe a computerized accounting
system, provided such requirements
are not inconsistent with
law or a rule adopted
by the Comptroller of
Public Accounts pursuant to
the Local Government Code,
sec.112.003, and the auditor
does not dictate which
equipment shall be used
by county officials.


TRD-9213147







LO-92-51 (RQ-17155).
Request from Bill Sims,
Chairman, Natural Resources Committee,
Texas State Senate, Austin,
concerning whether the City
of Kerrville may expend
municipal hotel tax funds
for improvements to a
visitor information center.


Summary of Opinion.
A city may expend municipal
hotel tax funds for the
improvement of a visitors
information center. The city
must insure that the
expenditure fulfills one or
more of the specific
purposes authorized by Tax
Code, sec.351.101. Tax Code,
sec.351.103 governs the allocation
of tax receipts.


TRD-9213148


   
   









Open Records Decisions





ORD-600 (RQ-103).
Request from J. Kirk
Brown, General Counsel, Texas
Department of Criminal Justice,
Institutional Division, 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 receive
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 contain 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 Title 26, sec.6103(a), of the United States Code.


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 them 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).


TRD-9213139







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 Decision.
 The El Paso Finance
Corporation is a governmental
body under the Texas
Open Records Act, sec.2(1)(G).


TRD-9213140







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
Civil Statutes, Article 6252-17a,
sec.2(1) (G), of the
Texas Open Records Act,
and related questions.


Summary of Decision.
 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.


TRD-9213141







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 Decision.
 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).


TRD-9213142







ORD-604 (RQ-192).
Request from Karen Johnson,
Executive Director, State Bar
of Texas, Austin, concerning
the list of registrants
for Professional Development Programs.


Summary of Decision.
 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).


TRD-9213143







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 Decision.
 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.


TRD-9213144







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 Decision.
 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.


TRD-9213145







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 Decision.
 A laboratory report
of the result of a
test for HIV antibodies
administered under the authority
of a physician is made
confidential by 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.


TRD-9213146


   
   









Opinions





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).


TRD-9213115







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
the 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.


TRD-9213116







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 section 404.093
of the Government Code.
Surplus property that reverted
to the Texas Department
of Agriculture is subject
to the control of the
General Services Commission.


TRD-9213117







DM-149 (RQ-249).
Request from Michael Hines,
Executive Director, Texas Commission
on Fire Protection, Austin,
concerning whether the Open
Meetings Act, sec.2(g), permits
an executive session discussion
about persons considered for
created pursuant to the
Government Code, sec.419.023
and sec.419.072.


Summary of Opinion.
Members of the Fire Protection
Personnel Advisory Committee and
the Volunteer Fire Fighter
the Texas Commission on
Fire Protection pursuant to
Chapter 419 of the Government
Code are not public officers
or employees within the
Texas Open Meetings Act,
Texas Civil Statutes, Article
6252-17, sec.2(g). Accordingly,
the Texas Commission on
Fire Protection may not
meet in executive session
pursuant to the Open
Meetings Act, sec.2(g), to
discuss the qualifications of
persons under consideration for
these advisory committees.


TRD-9213118







DM-150 (RQ-294).
Request from Mike Driscoll,
Harris County Attorney, Houston,
concerning whether Harris County
may, for purposes of
floodplain management, regulate
the building of structures
over waterways within the
jurisdiction of the Port
of Houston Authority.


Summary of Opinion.
Harris County is authorized
to regulate the building
of structures over waterways
within the jurisdiction of
the Port of Houston Authority
to the extent necessary
to comply with the requirements
of the National Flood
Insurance Program.


TRD-9213121







DM-151 (RQ-343).
Request from John Pouland,
Executive Director, General Services
Commission, Austin, concerning
whether pursuant to the
General Services Act, Texas
Civil Statutes, Article 601b,
sec.2.061(d) a person who
is a member of a
firm which employs persons
who are required to register
as lobbyists under Chapter
305 of the Government
Code may serve as a
commissioner of the General
Services Commission, and related
questions.


Summary of Opinion.
The General Services Act,
Texas Civil Statutes, Article
601b, sec.2.061(d) does not
prohibit a person from
serving as a commissioner
of the General Services
Commission when that person
is a member of a
firm with other employs
who are required to register
as lobbyists under Chapter
305 of the Government
Code. Only the person
actually required to register
as a lobbyist is ineligible
to serve as a commissioner
of the General Services
Commission under sec.2.061(d).
However, the application of
the section is not restricted
to lobbyists required to
register because of their
activities on behalf of
professions related to the
operation of the General
Services Commission or on
behalf of business entities
that contract with the
state through the General
Services Commission. A lobbyist
also cannot serve as
a commissioner of the
General Services Commission if
he or she works on
behalf of a business
that contracts with the
state in any
manner, regardless of whether
the business contracts through
the General Services Commission.


TRD-9213122







DM-152 (RQ-304).
Request from Homer R.
Goehrs, M.D., F.A.C.P., Executive
Director, Texas State Board
of Medical Examiners, Austin,
concerning whether Title 22
of the Texas Administrative
Code, sec.280.5(g), (h) if
consistent with sec.1.03 of
the Texas Optometry Act,
Texas Civil Statutes, Articles
4552-1.01-4552-5.20, and related
questions.


Summary of Opinion.
Neither Texas Civil Statutes,
Article 4552-1. 03 nor
Title 22 of the Texas
Administrative Code, sec.280.5(g),
(h) violates Article III,
sec.51-a of the Texas
Constitution. To the extent
that Title 22 of the
Texas Administrative Code, 
sec.280.5(g), (h) permits therapeutic
optometrists to administer and
prescribe an antiviral or
antiglaucoma drug, even if
for legitimate purposes other
than treating a virus
or glaucoma, it represents
an unreasonable construction of
unambiguous language in Texas
Civil Statutes, Article 4552-1.03,
and, to that extent,
it is invalid. However,
the Board of Optometry
reasonably construed section 1.03
to permit the board to
list by classification or
category, rather than by
brand or generic name,
those topical ocular pharmaceutical
agents a therapeutic optometrist
may administer and prescribe.


TRD-9213123







DM-153 (RQ-322).
Request from David R.
Smith, M.D., Commissioner, Texas
Department of Health, Austin,
concerning whether the Texas
Abortion Facility Reporting and
Licensing Act, Health and
Safety Code, Chapter 245,
authorizes the Department of
Health to release information
relating to physicians and
nurses to the State Board
of Medical Examiners and
Board of Nurse Examiners,
or authorizes the department
to publicly disclose that
an office or clinic is
not a licensed abortion
facility.


Summary of Opinion.
The Texas Abortion Facility
Reporting and Licensing Act,
Health and Safety Code,
Chapter 245, does not
permit the Texas Department
of Health to release
information to the Board
of Medical Examiners or
the Board of Nurse Examiners
for the purpose of disciplining
physicians or nurses for
"unprofessional or unethical conduct."
Nor does the act permit
the department to inform
a person that an office,
clinic, or facility is
not licensed as an abortion
facility.


TRD-9213124







DM-154 (RQ-371).
Request from Wayne Blevins,
Executive Secretary, Teacher Retirement
System of Texas, Austin,
concerning whether the Government
Code, sec.824.304(c), conflicts
with the federal Age
Discrimination in Employment Act
of 1967, as amended by
the Older Workers Benefit
Protection Act of 1990,
and related questions.


Summary of Opinion.
The Texas Government Code,
sec.824.304(c) conflicts with
the federal Age Discrimination
in Employment Act of
1967, as amended by the
Older Workers Benefit Protection
Act, codified at Title
29 of the United States
Code, sec.621-34, and therefore
sec.824.304(c) is pre-empted
by the federal acts and
is void.


TRD-9213125







DM-155 (RQ-384).
Request from John Sharp,
Comptroller of Public Accounts,
Austin, concerning whether a
county education district must
comply with the "truth-in-taxation"
provisions in Chapter 26
of the Tax Code by
calculating effective and rollback
tax rates, publishing notices
of hearings, holding hearings,
and if it receives a
valid petition, calling a
rollback election before adopting
its tax rate, and related
questions.


Summary of Opinion.
The county education districts
(CEDs) must comply with
the notice and hearing
requirements of the truth-in-taxation
provisions contained in 
sec.sec.26.04-26.06 of the Tax
Code. These requirements are
consistent with Senate Bill
351, which creates the
CEDs and indicates how
they should set their
tax rates, levy their
taxes, and distribute the
tax revenue they collect.
For the purpose of satisfying
the truth-in-taxation provisions,
the CEDs are school districts.
Therefore, the CEDs must
use the formula contained
in sec.26.08(a) of the
Tax Code to calculate
their rollback tax rates.
In addition, because the
Texas Supreme Court has
enjoined the CEDs from
levying and collecting taxes
after the 1992-1993 school
year, we do not need
to determine whether a
CED must call a rollback
election if it receives
a petition.


TRD-9213126







DM-156 (RQ-290).
Request from Mike Driscoll,
Harris County Attorney, Houston,
concerning whether the Texas
Constitution, Article XVI, 
sec.40, or the common-law doctrine
of incompatibility precludes a
deputy constable from simultaneously
holding a position as
an assistant fire chief
with the City of Houston
Fire Department.


Summary of Opinion.
The position of deputy
constable of a county
is a civil office of
emolument. However, the position
of assistant fire chief
in the City of Houston
Fire Department is not
a civil office of emolument.
Thus, neither the Texas
Constitution, Article XVI, 
sec.40, nor the common-law
doctrine of incompatibility precludes
one person from simultaneously
serving as deputy constable
for a county and assistant
fire chief for the City
of Houston Fire Department.


TRD-9213127







DM-157 (RQ-306).
Request from John Hannah,
Office of the Secretary
of State, Executive Division,
State of Texas, Austin,
concerning whether a health
spa exempted from the
security deposit requirement by
the 1985 version of the
Health Spa Act is exempt
under the 1989 revision
of the act and related
questions.


Summary of Opinion.
Texas Civil Statutes, Article
522l, the Health Spa
Act, as amended in 1989,
effective September 1, 1989,
requires every health spa
in the state to file
a surety bond with the
secretary of state. The
security requirements imposed by
the present version of
the law applies to a
health spa that opens
an initial location on
or after September 1,
1989, and to each additional
location opened after that
date by such spas. A
health spa in operation
before September 1, 1989,
and any additional location
opened by that health
spa on or after September
1, 1989, is subject to
the security requirements in
effect on August 31,
1989. An exemption for
some health spas from
all security requirements included
in the prior version
of the Health Spa Act
has been repealed and
is not continued in effect
by the savings clause
in the 1989 amendments.
Health spas that were
formerly exempted from the
security requirement no longer
have the benefit of that
exemption.


Health spas that were exempt from all security deposits under
the repealed provision are now required to maintain security
in the amount of $5,000 without first filing a security deposit
of $20,000. If a spa in operation on August 31, 1989, opens a
new location after September 1, 1989, the new spa location must
file an initial security deposit of 20% of the total value of
the prepayments it has received, but not less than $20,000 nor
more than $50, 000. It must maintain this amount of security
for two years after the date the security deposit is filed, and
thereafter, it must continuously maintain security in the amount
of $5,000.


TRD-9213128







DM-158 (RQ-121).
Request from Jimmy F.
Davis, County-District Attorney,
Castro County Courthouse, Dimmitt,
concerning whether a county
commissioners court may "transfer"
county road and bridge
employees discharged by an
ex officio road
commissioner to another 
ex officio road
commissioner's precinct and continue
to pay the employees
with funds budgeted for
the former precinct, and
related questions.


Summary of Opinion.
A county commissioners court
in a county adopting
the ex officio
road commissioner option for
road construction and maintenance
responsibilities, Texas Civil Statutes,
Article 6702-1, Chapter 3,
Subchapter A, lacks authority
to overturn an ex
officio road commissioner's
discharge of an employee
working in that commissioner's
precinct and paid from
county road and bridge
funds. However, the law
would allow another ex
officio road commissioner
to hire such a discharged
employee, with authorization by
the full commissioners court;
and allow the commissioners
court to transfer funds
originally budgeted for the
former precinct to the
new precinct of employ
to cover the employee's
remuneration. Local Government
Code, sec.111.010(d):


TRD-9213129







DM-159 (RQ-385).
Request from Tim Curry,
Criminal District Attorney, Tarrant
County, Fort Worth, concerning
constitutionality of the Health
and Safety Code, sec.756.042,
which requires outdoor shooting
ranges to be constructed
according to standards set
by the National Rifle
Association.


Summary of Opinion.
The Health and Safety
Code, sec.756.042, which requires
outdoor shooting ranges to
be constructed according to
standards promulgated by the
National Rifle Association, is
an invalid attempt to
confer legislative authority on
a private entity in contravention
of the Texas Constitution,
Article III, sec.1.


TRD-9213130







DM-160 (RQ-310).
Request from Gerard Swain,
Acting Executive Director, Texas
Board of Licensure for
Nursing Home Administrators, Austin,
concerning whether, under Texas
Civil Statutes, Article 4442d,
the presence of ex
officio members of
the Texas Board of Licensure
for Nursing Home Administrators
is considered in determining
whether a quorum of the
board is present, and
related questions.


Summary of Opinion.
Under the Nursing Home
Administrators Licensure Act, 
sec.3(1), Texas Civil Statutes,
Article 4442d, for purposes
of determining the number
of members of the Texas
Board of Licensure for
Nursing Home Administrators sufficient
to constitute a quorum,
the board must base its
calculation only on the
voting board members. 
Ex officio, nonvoting
members are not counted
for purposes of determining
the presence of a quorum.
Under sec.8(a) of the
same act, which requires
the board to promulgate,
alter, or abolish a rule
by a two-thirds majority
vote, the board calculates
the number of votes needed
for a majority by multiplying
by two-thirds the number
of members qualified to
vote (provided that a
sufficient number of members
are present at the meeting
to constitute a quorum).
For purposes of determining
the number of votes necessary
to constitute a two-thirds
majority, the number of
members present at the
meeting is irrelevant.


TRD-9213131







DM-161 (RQ-186).
Request from Robert H.
Norris, Executive Director, Texas
Board of Architectural Examiners,
Austin, concerning construction
of Texas Civil Statutes,
Article 249a, sec.16 the
act regulating the practice
of architecture.


Summary of Opinion.
Texas Civil Statutes, Article
249a, sec.16 the statute
regulating the practice of
architecture, does not bar
a professional engineer licensed
under Texas Civil Statutes,
Article 3271a, from preparing
plans and specifications, the
preparation of which requires
the application of engineering
principles and the interpretation
of engineering data, for
"a new building that
is to be constructed
and owned by a State
agency, a political subdivision
of this State, or any
other public entity in
this State if the building
will be used for education,
assembly, or office occupancy
and the construction costs
exceed $100,000."


TRD-9213132







DM-162 (RQ-352).
Request from Phyllis Massey,
Dewitt County Auditor, Cuero,
concerning whether the provisions
of the Code of Criminal
Procedure, Article 59.06(c), directing
that certain forfeited property
be deposited in "special
funds in the county treasury,"
require that such funds
be deposited with the
county treasurer for placement
in the county depository.


Summary of Opinion.
The provisions of the
Code of Criminal Procedure,
Article 59.06(c), providing for
the deposit in "special
funds in the county treasury"
of forfeiture funds distributed
to the office of "the
attorney representing the state"
and "county law enforcement
agencies," contemplate that those
funds will be deposited
with the county treasurer
for placement in the
county depository in the
manner in which county
funds are generally handled.


TRD-9213133







DM-164 (RQ-133).
Request from Mike Driscoll,
Harris County Attorney, Houston
concerning whether a county
constable is under a
statutory duty to serve
civil process issued by
federal courts.


Summary of Opinion.
A county constable is
not required to serve
civil process issued by
federal courts in his
official capacity under the
Local Government Code, 
sec.86.021. A constable is
not prohibited from performing
such services in his
private capacity provided such
service does not interfere
with the constable's official
duties.


TRD-9213134







DM-165 (RQ-98). Request
from Skip Meno, Commissioner,
Texas Education Agency, Austin,
concerning whether a school
district can require a
corporate surety to be
sufficiently solvent to issue
bid, performance, or payment
bonds without reinsurance, and
related questions.


Summary of Opinion.
Surety companies furnishing bid
bonds, performance bonds, and
payment bonds under Texas
Civil Statutes, Article 5160,
must be duly authorized
to do business in Texas.
Insurance Code, Article 7.
19-1(a). School districts may
require corporate sureties to
obtain reinsurance for any
portion of the risk that
exceeds ten percent of
the surety's capital and
surplus. Reinsurers of such
bonds must be "duly authorized,
accredited, or trusteed" to
do business in Texas.
Id. Article 7.19-1(b).
A school district may
reject a surety bond
which does not meet these
requirements. School districts
may not forbid surety
companies from obtaining reinsurance
in accordance with Article
7.19-1, or establish minimum
financial standards for reinsurers
underwriting such bonds beyond
those permitted by Article
7.19-1.


TRD-9213135







DM-166 (RQ-183).
Request from John Vance,
Criminal District Attorney, Dallas
County, Dallas, concerning whether
charges for uncertified copies
of records of judiciary
in district clerk's office
are set by Texas Civil
Statutes, Article 6252-17a, 
sec.9(d).


Summary of Opinion.
The charges established by
the Open Records Act,
Texas Civil Statutes, Article
6252-17a, sec.9(d) for copies
made in the district
clerk's office do not
apply to copies of records
of the judiciary held
by the district clerk.
Rule 76a of the Texas
Rules of Civil Procedure,
provides that court records,
as defined in the rule,
are presumed to be open
to the public and may
be sealed only in accord
with the reasons and
procedures set out in
the rule. Court records
not subject to Rule 76a
are governed by existing
law. There is a common-law
right to inspect and
copy records of the judiciary,
subject to the court's
inherent power to control
access to its records.
The charge for an uncertified
copy of a judicial record
in the clerk's custody
is governed by the Government
Code, sec.51.319(5) which authorizes
the district clerk to
collect a "reasonable fee"
for "performing any other
service prescribed or authorized
by law for which no
fee is set by law."
Since the legislature refused
to permit the district
clerk to collect a fee
of one dollar ($1.00)
per page for noncertified
records, we believe that
amount would be an unreasonable
charge as a matter of
law.


TRD-9213136







DM-167 (RQ-404).
Request from Ron Lewis,
Chairman, Natural Resources Committee,
Texas House of Representatives,
Austin, concerning whether the
State of Texas may participate
in protesting zoning changes,
and related questions.


Summary of Opinion.
The Texas Department of
Transportation, as an owner
of real property in its
right-of-way, may if it
so chooses be included
among the owners of 20%
of immediately adjoining property
protesting a zoning change
under the Local Government
Code, sec.211.006(d)(2). Any
such decision must be
made by the Texas Transportation
Commission. The commission may
delegate the purely ministerial
act of signing the petition
to any person it chooses.
The Local Government Code,
sec.211.013, does not abrogate
the rights of state or
federal agencies to participate
in zoning protests.


TRD-9213137


   
   









Requests for Opinions





(RQ-405). Request
from Honorable Steven D.
Wolens, Chair, Committee on
Business and Commerce, Texas
House of Representative, Austin,
concerning whether an applicant
for a horse racetrack
license is barred by
the rules of the Racing
Commission from amending his
or her application after
the application has been
certified as complete by
the executive secretary of
the commission.







(RQ-406). Request
from Jackee Cox, General
Counsel, Texas Department of
Criminal Justice, Austin, concerning
whether a defendant sentenced
under the Penal Code,
sec.12.422 is entitled to
credit for time confined
in a substance abuse
facility toward satisfaction of
the term of confinement.







(RQ-407). Request
from Rita Horwitz, Executive
Director, State Pension Review
Board, Austin, concerning whether
sec.2(g) or sec.2(o) of
the Open Meetings Act,
Texas Civil Statutes, Article
6252-17, authorize the State
Pension Review Board to
meet in closed session
to consider confidential medical
information.







(RQ-408). Request
from Fred S. Brinkley,
Jr., R.Ph., Executive Director/Secretary,
Texas State Board of
Pharmacy, Austin, concerning whether
a quorum of a licensing
board attending a licensee
disciplinary hearing conducted
by the State Office of
Administrative Hearings may make
findings of fact, conclusions
of law, and vote on
discipline without receiving a
proposal for decision.







(RQ-409). Request
from Georgia D. Flint,
Commissioner of Insurance, Austin,
concerning whether the Texas
Administrative Procedure and Texas
Register Act, Texas Civil
Statutes, Article 6252-13a, and
the Texas Open Meetings
Act, Texas Civil Statutes,
Article 6252-17, apply to
the Texas Health Maintenance
Organization Solvency Surveillance
Committee.







(RQ-410). Request
from Georgia D. Flint,
Commissioner of Insurance, Austin,
concerning whether the Texas
Administrative Procedure and Texas
Register Act, Texas Civil
Statutes, Article 6252-13a, and
the Texas Open Meetings
Act, Texas Civil Statutes,
Article 6252-17, apply to
the Life, Accident, Health
and Hospital Service Insurance
Guaranty Association.







(RQ-411). Request
from Georgia D. Flint,
Commissioner of Insurance, Austin,
concerning the Texas Administrative
Procedure and Texas Register
Act, Texas Civil Statutes,
Article 6252-13a, and the
Texas Open Meetings Act,
Texas Civil Statutes, Article
6252-17, apply to the
Texas Property and Casualty
Insurance Guaranty Association.







(RQ-412). Request
from Georgia D. Flint,
Commissioner of Insurance, Austin,
concerning whether the Texas
Administrative Procedure and Texas
Register Act, Texas Civil
Statutes, Article 6252-13a, and
the Texas Open Meetings
Act, Texas Civil Statutes,
Article 6252-17, apply to
the Texas Title Insurance
Guaranty Association.







(RQ-413). Request
from Georgia D. Flint,
Commissioner of Insurance, Austin,
concerning whether insurance underwriting
guidelines are trade secrets
exempt from the Texas
Open Records Act.







(RQ-414). Request
from Georgia D. Flint,
Commissioner of Insurance, Austin,
concerning whether Article 1.10D
of the Texas Insurance
Code renders information collected
by the Insurance Fraud
Unit under the Texas
Open Records Act.







(RQ-415). Request
from Helen L. Campbell,
Fire Fighter's Pension Commissioner,
Austin, concerning consequences
for the Fire Fighter's
Pension Fund when a member
volunteer fire department ceases
to exist.







(RQ-416). Request
from Gib Lewis, Speaker,
Texas House of Representatives,
Austin, concerning whether a
teacher returning to work
after a leave of absence
must be placed on active
duty, and, if so, when
such service must commence.







(RQ-417). Request
from Rick Perry, Commissioner,
Department of Agriculture, Austin,
concerning whether certain kinds
of producer assessments for
boll weevil eradication would
contravene Article VIII, 
sec.1 of the Texas Constitution.







(RQ-418). Request
from Todd K. Brown, Executive
Director, Texas Workers' Compensation
Commission, Austin, concerning
whether information related to
an employee's "no lost
time injuries" must be
released by the Texas
Workers' Compensation Commission
as part of a record
check and related questions.







(RQ-419). Request
from James R. Wilson,
Director, Texas Department of
Public Safety, Austin, concerning
whether Texas Civil Statutes,
Article 6791h, sec.4A, which
provides for, in certain
circumstances, the impoundment
of motor vehicles not
registered in Texas, is
constitutional and related questions.







(RQ-420). Request
from Clem R. Cannon,
Auditor, Karnes County, Karnes
County Courthouse, Karnes City,
concerning whether a county
is responsible for payment
of medical bills of an
indigent incarcerated in the
county jail.







(RQ-421). Request
from John B. Ramming,
Executive Director, Texas Turnpike
Authority, Dallas, concerning whether
the Texas Turnpike Authority
may transfer the Houston
Ship Channel Bridge project
to Harris County, and
related questions.







(RQ-422). Request
from Ron Lewis, Chair,
Redistricting Committee, Texas
House of Representatives, Austin,
concerning annexation of a
portion of a municipal
utility district by a
municipality, and related questions.







(RQ-423). Request
from Dick Durbin, Administrator,
Texas Alcoholic Beverage Commission,
Austin, concerning whether the
Alcoholic Beverage Commission,
in providing for different
tax-reporting periods under Texas
Civil Statutes, Article 179d,
the Bingo Enabling Act,
may require that the
tax be paid with each
tax report.







(RQ-424). Request
from John B. Holmes,
Jr., District Attorney, Harris
County, Texas, Houston, concerning
right of a juvenile in
counsel, and related questions.







(RQ-425). Request
from Lionel R. Meno,
Commission of Education, Texas
Education Agency, Austin, concerning
whether Article VII, sec.5(d)
of the Texas Constitution
permits the State Board
of Education to lend
securities owned by the
permanent school find in
the manner and for the
purpose set forth in
the Education Code, sec.15.14.







(RQ-426). Request
from Kenneth H. Ashworth,
Commissioner, Texas Higher Education
Coordinating Board, Austin, concerning
whether the comptroller may
withhold state payroll or
retirement warrants from recipients
who are delinquent in
repaying Hinson-Hazelwood College
Student Loans.







(RQ-427). Request
from Tracey Bright, County
Attorney, Ector County Courthouse,
Odessa, concerning whether a
school district may contract
with off-duty police officers
and deputy sheriffs for
security services, and related
questions.







(RQ-428). Request
from The Honorable Renee
Higginbotham-Brooks, Chairman, Texas
Alcoholic Beverages Commission,
Austin, concerning whether the
Open Meetings Act permits
a member of the Alcoholic
Beverage Commission who is
unable to attend a commission
meeting in person to
participate by live video
transmission.







(RQ-429). Request
from The Honorable Ron
Wilson, Chairman, Committee on
Liquor Regulation, Texas House
of Representatives, Austin, concerning
whether a county may
create a non-profit authority
to purchase and operate
a racetrack, and to issue
bonds therefor.







(RQ-430). Request
from Fred S. Brinkley,
Jr., R.Ph., Executive Director/Secretary,
Texas State Board of
Pharmacy, Austin, concerning what
kind of information the
Board of Pharmacy should
release about licensees who
are the subject of orders
regarding impairment by substance
abuse.







(RQ-431). Requested
from Honorable O. H.
"Ike" Harris, Chairman, Jurisprudence
Committee, Texas Senate, Austin,
concerning constitutionality of
requirement that an applicant
for a real estate inspector's
license and an inspector-in-training's
license perform a minimum
number of inspections prior
to licensure.







(RQ-432). Request
from Gary Compton, Chairman,
Texas Youth Commission, Austin,
concerning whether Article VII,
sec.9 of the Texas
Constitution requires the Parrie
Haynes ranch, which was
willed "to the State
Orphan Home of Texas
to help orphan children,
"to be placed in the
asylum fund established by
that constitutional provision.







(RQ-433). (Cross-referenced
with ID#16873; to be
issued as an ORD) .







(RQ-434). Request
from Honorable Gonzalo Barrientos,
Chairman, Committee on Nominations,
Texas Senate, Austin, concerning
whether those members of
the Texas Ethics Commission
the Governor are subject
to confirmation.







(RQ-435). Request
from Todd Brown, Executive
Director, Texas Workers' Compensation
Commission, Austin, concerning
whether the Texas Workers'
Compensation Commission may release
information to the Attorney
General's Child Support Enforcement
Office.







(RQ-436). Request
from Lionel R. Meno,
Commissioner of Education, Texas
Education Agency, Austin, concerning
whether the Texas prekindergarten
program is considered part
of elementary education under
Texas law, and related
questions.







(RQ-437). Request
from The Honorable John
Vance, District Attorney, Frank
Crowley Courts Building, Dallas,
concerning whether a defendant
may receive credit for
time served in jail under
particular circumstances, and related
questions.


TRD-9213138