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-92-74. Request from Kirk Palmer, County Attorney, Hockley County Courthouse, Levelland, concerning whether a member of Hockley County's Appraisal District Review Board may serve simultaneously as a member of the board of regents of South Plains College (ID#-17491). Summary of Opinion. The common-law doctrine of incompatibility precludes a member of the appraisal district review board of Hockley County from simultaneously holding a position as a regent of a junior college, if the junior college district overlaps with Hockley County. TRD-9317783 LO-92-75. Request from Carl A. Parker, Chairman, Education Committee, Texas State Senate, P.O. Box 12068, Austin, concerning whether a person employed as a "regular substitute" may continue employment and be promoted to status of a full-time employee following the election of a family member to the school board (ID#-17635). Summary of Opinion. Absent a contract for continuing employment, an individual's status as "regular substitute" does not constitute continuous employment as required by Texas Civil Statutes, Article 5996a, the Texas nepotism law. TRD-9317784 LO-92-76. Request from Robert Eckels, Chairman, Committee on County Affairs, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether Insurance Code, Article 21.48A, sec.2(e) authorizes an insurance agent to collect a substitution fee from a lender if the lender sells a mortgage and requests from the insurance agent an endorsement reflecting the change (RQ-305). Summary of Opinion. The Insurance Code, Article 21.48A, does not authorize an insurance agent to collect a fee from a lender if the lender sells a mortgage and requests from the insurance agent an endorsement reflecting the change. TRD-9317785 LO-92-77. Requests from Mike Driscoll, Harris County Attorney, 1001 Preston, Suite 634, Houston, and Dale W. Elliott, Potter County Attorney, 303 Courthouse, Amarillo, concerning collection and expenditure of the records management fee authorized by Local Government Code, sec.118.011(b)(2) (ID#-17073, ID#-17285). Summary of Opinion. The "records management and preservation fee" imposed by the Local Government Code, sec.118.011(b) may be used only for those "records management and preservation" projects performed in the office of the county clerk. If the records management and preservation fee is imposed upon any documents filed in the county clerk's office, it must be imposed on all of them. The county clerk may not impose the fee on certain documents while exempting its collection on others. The county clerk may not impose differing amounts on different documents. TRD-9317786 LO-92-78 (ID#-17168). Request from David J. Freeman, Executive Secretary, Texas Racing Commission, P.O. Box 12080, Austin, concerning whether an individual who was unassociated with a racetrack licensee at the time the racetrack was licensed or was operating may request reinstatement of the racetrack license pursuant to the Texas Racing Act, sec.6.19, Texas Civil Statutes, Article 179e, and related questions. Summary of Opinion. Provided that a corporation holds the racetrack license, a new owner of the corporation may request reinstatement of a racetrack license under the Texas Racing Act, sec.6.19, Texas Civil Statutes, Article 179e, even though the individual was unassociated with the corporation at the time the Texas Racing Commission issued the original license or at any time the Texas Racing Commission issued the original license or at any time during the time the racetrack was operational. If all of the conditions specified in sec.6.19(a) and (b) are met, the Texas Racing Commission must reinstate the license in that situation; however, pursuant to subsection (d)(2), the commission may revoke or suspend the racetrack's license before the second anniversary of the date that it is reinstated if the commission finds that the licensed corporation has been the subject of a voluntary proceeding under the Bankruptcy Code the United States Code, Title 11. TRD-9317787 LO-92-79. Request from A. J. (Jack) Hartel, Liberty County Attorney, P.O. Box 9127, Liberty, concerning appeal of a local health authority's order to quarantine an animal for rabies under the Health and Safety Code, Article 826.042 (ID#-17204). Summary of Opinion. In the absence of an administrative remedy provided under rules or ordinances adopted by the governing body of a city or county pursuant to the Rabies Control Act of 1981 (Health and Safety Code, Chapter 826) the forum for an action contesting an order of quarantine or the conditions of a quarantine is governed by the terms of the statute or rule granting the specific relief sought by the owner of a quarantined animal. TRD-9317788 LO-92-80. Request from Tom Craddick, Chairman, Committee on Public Health, House of Representatives, P.O. Box 2910, Austin, concerning whether Texas Civil Statutes, Article 6228a-5 provides employees with a right to designate an agent, broker, or insurance carrier for contributions an employer makes to a profit- sharing plan established pursuant to the United States Code, Title 26, sec.401 (ID#-16824). Summary of Opinion. The Texas Pension Code, Article 6228a-5, Texas Civil Statutes Title 109, does not entitle participants in a profit-sharing plan to which an employer contributes pursuant to the United States Code, Title 26, sec.401(a) to designate an agent, broker, or company through which the employer must purchase annuities or other investments. TRD-9317789 LO-92-81. Request from Larry W. Allison, Lampasas County Attorney, 27th Judicial District Attorney, P.O. Box 1300, Lampasas, concerning questions related to the collection and use of the records management and preservation fee pursuant to the Local Government Code, sec.118.0216 (RQ-315). Summary of Opinion. Pursuant to the Local Government Code, sec.118. 011(b) and sec.118.0216, a county clerk may collect a records preservation and management fee. The county clerk must deposit any records preservation and management fees collected into the county treasury. The county commissioners court has sole discretion to determine how the county will spend revenues generated by this fee, so long as the court uses the fee for the purpose stipulated in the Local Government Code, sec.118.0216: "specific records preservation and automation projects." Whether a particular project is a "specific records preservation and automation project" is an issue that the county commissioners court must decide in the first instance. TRD-9317790 LO-92-82. Request from John T. Montford, Chairman, Finance Committee, Texas State Senate, P.O. Box 12068, Austin, concerning whether a municipality with a transit system created pursuant to Texas Civil Statutes Article 1118x, may extend the system into another municipality (RQ-323). Summary of Opinion. A city operating a mass transit department pursuant to Texas Civil Statutes, Article 1118z, may provide public mass transportation services within the corporate limits of a city that does not provide such services to its residents, provided such services are delivered pursuant to a contract executed by the governing bodies of both cities in accordance with the Interlocal Cooperation Act (Government Code, Chapter 791) and any applicable city ordinance, home rule charter provision, or state law. TRD-9317791 LO-92-84. Request from James L. Anderson, Jr., Aransas County Attorney, Aransas County Courthouse, 301 North Live Oak, Rockport, concerning whether the Aransas County Navigation District can use tax revenues to pay the expenses enumerated in the Water Code, sec.60.105 (ID#-17766). Summary of Opinion. The Aransas County Navigation District may not use tax revenues to pay the expenses enumerated in the Water Code, sec.60.105. Navigation districts must pay the expenses enumerated in the Water Code, sec.60. 105 from the fees and charges collected under the Water Code, sec.60.103. TRD-9317792 Open Records Decisions ORD-610 (RQ-443). Request from Georgia Flint, Commissioner, Texas Department of Insurance, P.O. Box 2800, Austin, concerning whether books and records of an insurance company in receivership are subject to disclosure under the Texas Open Records Act (RQ-443). Summary of Opinion The receiver of an insurance the Insurance Code, Article 21.28 holds the books and records of the insurer for the court. The insurer's books and records are records of the judiciary, and are therefore excepted from the provisions of the Open Records Act by sec.2(1)(H) of that statute. TRD-9317802 Opinions DM-180 (RQ-401). Request from Todd K. Brown, Executive Director, Texas Workers' Compensation Commission, 4000 South IH-35, Austin concerning whether a political subdivision is required to provide workers' compensation coverage for its employees, and related questions (RQ-401). Summary of Opinion. Political subdivisions of the state are required to provide workers' compensation coverage for their employees. TRD-9317793 DM-181 (RQ-418). Request from Todd K. Brown, Executive Director, Texas Workers' Compensation Commission, Southfield Building, 4000 South IH-35, 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 or pre-employment check pursuant to the Texas Workers' Compensation Act, or a request pursuant to the Texas Open Records Act, and related questions (RQ-418). Summary of Opinion. Although the Texas Workers' Compensation Commission is not required to collect or maintain information about "no lost time" ("NLT") injuries, it cannot destroy such information already in its possession unless it follows the procedures set out in the Government Code, sec.sec.441.031-441.062. The commission is not required to release information about NLT injuries as part of record checks, unless a claim for the injury has been made and the conditions of Article 8308- 2.31(c) and (d) have otherwise been met, nor is it required to release such information as part of pre-employment checks, unless an applicant has made a general injury claim based on the NLT injury and the requirements of Articles 8308-2.33 and 8308-2. 34 have otherwise been met. Information about NLT injuries is not confidential under Article 8308-2. 31(a) as incorporated into the Open Records Act, sec.3(a)(1) unless it is in or derived from a claim file. Whether information about particular NLT injuries is protected under the common-law privacy doctrine as incorporated into the Open Records Act, sec.3(a)(1) must be determined on an individual basis. The commission may charge a fee for costs incurred in providing access to microfilmed NLT injury information in accordance with the Open Records Act, sec.9(b) and the rules promulgated by the General Services Commission. The commission may charge a reasonable fee for NLT injury information released as part of a record check or pre-employment check pursuant to Article 8308-2.39. TRD-9317794 DM-182 (RQ-300). Request from Bill G. Carter, Chairman, Public Safety Committee, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether Tax Code sec.154.101(h) and sec.155.041(h), establishing the Tax Code as the exclusive authority for the issuance of permits for engaging in business as a retailer of cigarettes and other tobacco products, preempt provisions of a city ordinance licensing tobacco product retailers (RQ-300). Summary of Opinion. A home-rule city ordinance, which establishes a licensing system for the retail sale of cigarettes and other tobacco products, is preempted by the Tax Code, sec.154.101(h) and sec.155.041(h), which provides that permits to engage in business as a retailer of cigarettes and other tobacco products shall be governed exclusively by the Tax Code. TRD-9317795 DM-183 (RQ-363). Request from James Warren Smith, Jr., Frio County Attorney, P.O. Box V, Pearsall, concerning whether a county commissioners court is authorized to promulgate regulations creating a "smoke-free" environment or designate restricted areas in county buildings or facilities for smoking (RQ- 363). Summary of Opinion. As the body responsible for the acquisition and maintenance of county buildings and facilities as well as the health and welfare of persons within the county, the commissioners court is authorized to regulate smoking within and on county property. TRD-9317796 DM-184 (RQ-239). Request from John Whitmire, Chairman, Intergovernmental Relations, Texas State Senate, P.O. Box 12068, Austin concerning whether the provisions of House Bill 799 of the 72nd Legislature apply to the procurement of brokerage and investment services by state agencies (RQ-239). Summary of Opinion. Texas Civil Statutes, Article 601b, applies to contracts for investment brokerage services of the Employees Retirement System and the Teacher Retirement System. The boards of trustees of these retirement systems must comply with the provisions of House Bill 799 of the 72nd Legislature when awarding such contracts. ERS and TRS are therefore required to make a good faith effort to assist disadvantaged businesses in obtaining at least 10% of the total value of contracts awarded for investment brokerage services. TRD-9317797 DM-185 (RQ-464). Request from Gonzalo Barrientos, Chairman, Committee on Nominations, Texas State Senate, P.O. Box 12068, Austin concerning whether a municipality may establish a program for economic development pursuant to the Local Government Code, sec.380.001, and related questions (RQ-464). Summary of Opinion. The Local Government Code, sec.380.001, which the legislature enacted pursuant to Article III, sec.52-a of the Texas Constitution, is constitutional. The legislature intended sec.380.001 to authorize municipalities to offer a range of incentives designed to promote state or local economic development. It is outside the scope of the opinion process to determine, however, whether a particular incentive or combination of incentives constitutes a "program to promote state or local economic development" for purposes of the Local Government Code, sec.380.001. A home-rule municipality may issue bonds to fund an economic development program that the municipality has established in accordance with sec.380.001, but only if two conditions are met. First, the bonds the municipality desires to issue must be in an amount and to the extent provided by the municipality's charter. Second, a majority of the duly qualified property tax-paying voters voting at an election held to consider the bond issue must have approved the issuance. TRD-9317798 DM-186 (RQ-395). Request from Thomas E. White, Hamilton County Attorney, P.O. Box 831, Hamilton, concerning whether the boundaries of the Hamilton Hospital District, described in the district's authorizing legislation as coextensive with certain commissioners precincts of Hamilton County, change in accordance with the county's subsequent redistricting of those commissioners precincts (RQ- 395). Summary of Opinion. The boundaries of the Hamilton County Hospital District, which are delineated in the district's enabling legislation, as amended, by reference to the boundaries of Hamilton County's commissioners precincts numbers 1, 2, and 4, are not changed as a result of the county's subsequent redistricting of said precincts, but remain coextensive with the boundaries of commissioners precincts 1, 2, and 4, as they existed at the time of the legislature's designation of the district's boundaries. TRD-9317799 DM-187 (RQ-233). Request from Marcus D. Taylor, Criminal District Attorney, Wood County, P.O. Box 689, Quitman, concerning whether property seized by the state pursuant to the Code of Criminal Procedure, Chapter 59, is exempt from property taxes (RQ-233). Summary of Opinion. Real property forfeited to the state pursuant to the Code of Criminal Procedure, Chapter 59, is exempt from ad valorem taxation. The exemption is effective as of the date title to the property vests in the state following a final judgment of forfeiture under Chapter 59, i.e., the date notice of lis pendens is filed describing the property. Code Criminal Procedure, Article 59.06(f). The tax exemption applies for as long as title rests with the state and the property is used for public purposes. TRD-9317800 DM-188 (RQ-18). Request from Dale W. Elliott, Potter County Attorney, 303 Courthouse, Amarillo, concerning tax exemptions for public property leased to private entities (RQ-18). Summary of Opinion. Property owned by the City of Amarillo consisting of an airport maintenance hangar that is leased to a private party for operation as such is exempt from ad valorem taxation if the property is used in direct support of the operation of the airport by the city. Buildings that are owned by the city are not tax-exempt if they are owned purely for the purpose of renting them to private commercial interests. An office complex owned by the Amarillo Independent School District and partially leased to private parties and other political subdivisions remains tax-exempt if the facility was acquired in its entirety for the purpose of conserving school district funds. Property acquired by the Amarillo Junior College District for purposes of future expansion and temporarily leased to private persons as storage units is tax-exempt. Property rented to students and employees of the junior college for residential housing also remains tax-exempt, but property rented for these purposes to persons who are not students or employees is subject to taxation. TRD-9317801