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-92-83 (RQ-216).
Request from Charles E. Nemir, P.E., Executive Director, Texas State Board of 
Registration for Professional Engineers, Austin, concerning whether certain 
applicants for registration as professional engineers pursuant to Texas Civil 
Statutes, Article 3271a, must pay the $200 increase in registration fees imposed 
by sec.13B(a)(1) of that article.
Summary of Opinion.
The Texas Engineering Practice Act, Texas Civil Statutes, Article 3271a, 
sec.13B(c), does not exempt from the $200 increase in initial registration fees 
imposed by sec.13B(a)(1) an applicant for registration who qualifies for 
exemption from the act's registration requirements under sec.20(g) or sec.20(h). 
Section 13B(c) exempts only an individual already registered as a professional 
engineer from the $200 increase in annual renewal fees imposed by sec.13B(a)(2) 
of the act if he satisfies the qualification requirements of sec.20(g) or 
sec.20(h) of the act. TRD-9318664
LO-92-85 (RQ-360).
Request from Jimmy B. Wright, Lynn County Attorney, Tahoka, concerning whether a 
county legally may pay a county employee $200 per month in lieu of health 
insurance coverage if the employee has elected not to receive such coverage 
through the county's group health insurance plan, and related questions.
Summary of Opinion.
A county commissioners court is not authorized to offer county employees a 
choice between health insurance coverage and $200 per month.
TRD-9318665
LO-92-86 (ID#-17640).
Request from John T. Montford, Chairman, Finance Committee, Texas State Senate, 
Austin, concerning whether start-up costs for the Texas State Technical College 
System Extension Center in Marshall, may be financed by the issuance of bonds by 
the Marshall Economic Development Corporation.
Summary of Opinion.
The Marshall Economic Development Corporation may use proceeds of a sales and 
use tax collected pursuant to Texas Civil Statutes, Article 5190.6, sec.4A, to 
finance bonds for the start-up costs of the Texas State Technical College System 
Extension Center in Marshall, Texas, so long as the funds are used solely for 
technical-vocational training purposes.
TRD-9318666
LO-93-1 (RQ-380).
Request from Carl E. Lewis, County Attorney, Nueces County Courthouse, 901 
Leopard, Room 206, Corpus Christi, concerning whether a port commissioner's 
ownership of a company that hires the services of pilots as an agent for ships 
calling at the port disqualifies him from service on the
pilot board.
Summary of Opinion.
If a navigation and canal commissioner owns a shipping company that serves as a 
steamship agent and hires pilots as an agent for ships entering and leaving a 
port, then Texas Civil Statutes, Article 8248, prevents that commissioner from 
serving on the pilot board.
TRD-9318667
LO-93-2 (RQ-377).
Request from Mike Driscoll, Harris County Attorney, 1001 Preston Road, Suite 
634, Houston, concerning whether the Harris County Flood Control District may 
engage in wetland mitigation programs pursuant to the Wetlands Mitigation Act, 
Texas Civil Statutes, Article 5421u.
Summary of Opinion.
The Harris County Flood Control District is not a "political subdivision" within 
the meaning of the Wetlands Mitigation Act, Texas Civil Statutes, Article 5421u, 
and therefore is not authorized to establish a mitigation bank or to enter into 
contracts pursuant to the act. Section 6.06(a) of
the act requires a political subdivision to hold a public hearing before 
adopting a wetlands regulation program.
TRD-9318668

Open Records Decisions
ORD-611 (RQ-439).
Request from David C. Caylor, City Attorney, City of El Paso, El Paso, 
concerning whether documents relating to a police department's investigations of 
family violence are excepted from required public disclosure under the Open 
Records Act, Texas Civil Statutes, Article 6252-17a.
Summary of Decision.
Records held by law enforcement agencies regarding violence between family 
members are not excepted as a matter of law from required public disclosure by 
the Open Records Act, Texas Civil Statutes, Article 6252-17a, sec.3(a)(1) or 
sec.3(a)(8). To withhold records regarding violence between family members under 
the concept of common-law privacy, a governmental body must demonstrate that the 
information is highly intimate and embarrassing and of no legitimate public 
interest. To withhold records regarding violence between family members, other 
than the information generally found on the first page of the offense report, 
under sec.3(a)(8), a law enforcement agency must demonstrate that the case is 
still under active investigation or that release of the information would unduly 
interfere with law enforcement or prosecution.
TRD-9318669
ORD-612 (RQ-462).
Request from Robert J. Provan, General Counsel, Texas State University System, 
Board of Regents, Austin, concerning whether arrest and offense reports filed 
with state university campus police departments are excepted from required 
public disclosure pursuant to Open Records Act, sec.3(a)(14) and sec.14(e).
Summary of Decision.
 The arrest and incident reports created and maintained by state university 
campus police departments are not education records within the meaning of the 
federal Family Educational Rights and Privacy Act, as amended by the Higher 
Education Amendments of 1992, 20 United States Code, sec.1232g(4)(B)(ii),
and therefore such police reports are not excepted from required public 
disclosure by Open Records Act sec.14(e). Open Records Decision Numbers 342 
(1982) and 205 (1978) ruling that such records are education records and 
excepted by sec.14(e) are superceded. Such records are not "student records" 
within the meaning of Open Records Act, sec.3(a)(14).
TRD-9318670
ORD-613 (RQ-451).
Request from James R. Wilson, Director, Texas Department of Public Safety, 
Austin, concerning whether, under Texas Civil Statutes, Article 179e, sec.2.16, 
an applicant for a racetrack license has a right of access to a background check 
on himself or herself.
Summary of Decision.
The Texas Racing Act, Texas Civil Statutes, Article 179e, sec.2.16, provides the 
subject of a background investigation that the Department of Public Safety has 
conducted with a right of access to all information that DPS has compiled or 
maintained in the course of the investigation. The subject's right of access is 
not limited to discovery in the course of litigation, rather, the subject has a 
right to access the information pertaining to DPS' investigation of his or her 
background at any time.
TRD-9318671
   
Opinions
DM-189 (RQ-400).
Request from Todd K. Brown, Executive Director, Texas Workers' Compensation 
Commission, Austin, concerning whether the former workers' compensation laws 
authorize the Industrial Accident Board or its successor to pay for the cost of 
agency ordered medical examinations of claimants.
Summary of Opinion.
The long-standing construction by the Industrial Accident Board and its 
successor, the Workers' Compensation Commission, of the provisions of Texas 
Civil Statutes, Article 8307, sec.4(a), as leaving to the state agency the 
responsibility for paying the cost of board or commission ordered physical 
examinations of claimants is reasonable.
TRD-9318672
DM-190 (RQ-459).
Request from Bill Sims, Chairman, Natural Resources Committee, Texas State 
Senate, Austin, concerning whether the Texas Structural Pest Control Act,
Texas Civil Statutes, Article 135b-6, exempts city employees who perform pest 
control services from its licensing requirements.
Summary of Opinion.
The Texas State Structural Pest Control Act, Texas Civil Statutes, Article 135b-
6, requires a city employee who engages in the business of structural pest 
control to obtain a noncommercial applicator license. The act exempts from its 
licensing requirements city employees who are hired primarily to perform other 
services provided that they do not use methods prohibited by state law or rule 
or by rule of the United State Environmental Protection Agency, restricted-use 
pesticides or state-limited-use pesticides, or who use household pest control 
chemicals in vacant or residential, office, retail, or industrial buildings 
owned and occupied by the city.
TRD-9318675
DM-191 (RQ-468).
Request from David Cain, Chairman, Transportation Committee, Texas House of 
Representatives, Austin, concerning whether the withdrawal and reconsideration 
of Attorney General Opinion DM-17 (1991).
Summary of Opinion.
This opinion overrules Attorney General Opinion DM-17 (1991). After the 1987 
amendments to the Open Meetings Act, a "meeting" subject to the act includes a 
briefing session in which a quorum of members of the governmental body is 
present and meets with a third party, other than an employee, about the public 
business or policy over which the body has jurisdiction. However, Texas Civil 
Statutes, Article 6252-17, sec.2(r), as added by Acts 1987, 70th Legislative 
Chapter 549, sec.2, continues to exclude from the definition of meeting briefing 
sessions between the members of a governmental body and that body's employees. 
Therefore, the members of a governmental body may consult with their employees 
in private, but may not consult with other third parties in private.
TRD-9318676
DM-192 (RQ-2127).
Request from John Sharp, Comptroller of Public Accounts, State of Texas, LBJ 
State Office Building, Austin, concerning refund of franchise tax collections to 
banking corporations, and related questions.
Summary of Opinion.
Former sec.403.105 of the Government Code, which created the local government 
corporate banking franchise tax fund and provided for its disbursement to local 
taxing units, did not violate the Texas Constitution, Article III, sec.51.
The Government Code, sec.403.105(o), which provides remedies in the event 
franchise taxes have been unlawfully or erroneously collected from a banking 
corporation, remains in effect for some purposes. A banking corporation that is 
entitle to tax credits or a refund for overpayment of franchise taxes may elect 
to claim the tax credits authorized by former sec.403.105 or pursue other legal 
remedies against the state, including the remedy of filing a claim for a refund 
under the Tax Code, sec.111.104. Article V, sec.30, of the current general 
appropriations act provides that money in the State Treasury that is subject to 
refund may be refunded from the fund into which the money was deposited, 
transferred, or otherwise credited. Article V, sec.30, constitutes an 
appropriation for the purposes of paying tax refunds. The comptroller interprets 
Article V, sec.30, as requiring him to draw refunds of tax from each fund in the 
treasury in the same ratio in which the tax will deposited in the fund. This 
long-standing interpretation of Article V, 30, and its predecessors is 
consistent with the language of that provision.
Section 403.55(g) permits the comptroller to deduct the amount of delinquent 
taxes a person owes under a tax administered or collected by the states from a 
state warrant owing that person, and issue a warrant for the difference.
TRD-9318677
DM-193 (RQ-403).
Request from Charles D. Travis, Executive Director, Employees Retirement System 
of Texas, Austin, concerning whether Texas Civil Statutes, Article 6813g, 
requires the Employees Retirement System of Texas to designate broad types of 
coverage or specific vendors of supplemental optional benefits programs and 
related questions.
Summary of Opinion.
Texas Civil Statutes, Article 6813g, requires the Employees Retirements System 
of Texas (ERS) to designate "supplemental benefits programs" for state employee 
wage deductions, provided it concludes that such programs "promote the interests 
of the state and state agency employees". The term "supplemental benefits 
programs" refers to particular vendors as opposed to broad types of coverage. 
Article 6813g requires the ERS to approve particular supplemental benefits 
programs provided by particular vendors. This provision impliedly authorizes the 
ERS to regulate or monitor supplemental benefits programs if it determines that 
this is necessary to promote the interests of the state and state agency 
employees.
This provision does not authorize the ERS to assess a fee to pay for its 
administrative costs against either vendors of supplemental benefits programs or 
participating employees.
TRD-9318678
DM-194 (RQ-441).
Request from Chet Brooks, Chairman, Committee on Health and Human Services, 
Texas State Senate, Austin, concerning whether a home rule city may sponsor a 
non-profit, no-share corporation, and related questions.
Summary of Opinion.
The city's proposal to establish a non-profit, no-share corporation does not run 
afoul of the Texas Constitution, Article III, sec.52 or Article XI, sec.3. The 
common-law doctrine prohibiting the holding of incompatible offices does not 
preclude a city commissioner from serving as a director of the proposed 
corporation. The common-law doctrine prohibiting conflicts of interest does not 
preclude a city commissioner from serving on the corporation's board of 
directors because Chapter 171 of the Local Government Code expressly permits a 
city commissioner to do so, provided he or she receives no compensation or other 
remuneration.
TRD-9318679
DM-195 (RQ-456).
Request from Tim Curry, Criminal District Attorney, Tarrant County, Justice 
Center, Fort Worth, concerning whether a proceeding to recover excess proceeds 
after a tax lien foreclosure requires a separate cause of action, and related 
question.
Summary of Opinion.
The Tax Code, sec.34.04(a), does not require a claimant to file a new lawsuit, 
separate from the underlying action to foreclose the tax lien, to recover excess 
tax proceeds. A claimant filing a petition to recover excess tax proceeds must 
serve a copy of the petition on the county or district attorney and all parties 
to the suit that ordered the sale in accordance with the Texas Rules of Civil 
Procedure, sec.21a.
TRD-9318680

Requests for Opinions
(RQ-473). Request from John W. Segrest, McLennan County Criminal District 
Attorney, 216 North Sixth Street, Suite 200, Waco, concerning whether a person 
related to a district judge within the degree prohibited by the nepotism law, 
Texas Civil Statutes, Article 5996a, may take employment with a community 
supervision and corrections department without causing a violation of the 
nepotism law in light of the provisions of Article 42.131 of the Code of 
Criminal Procedure.
(RQ-474). Request from Elizabeth S. Horn, Associate General Counsel, Dallas 
Housing Authority, 2525 Lucas Drive, Dallas, concerning whether the Open Records 
Act, Texas Civil Statutes, Article 6252-17a, sec.3(a) (1) or sec.3(a)(3), 
protects from disclosure answers to complaints alleging discriminatory housing 
practices in violation of the Federal Fair Housing Act, 42 United States Code, 
sec. sec.3601 et seq.
(RQ-475). Request from Bill Sims, Chair, Natural Resources Committee, Texas 
State Senate, P.O. Box 12068, Austin, concerning deferred adjudication 
proceedings under Texas Civil Statutes, Article 6701d, sec.143A, which 
authorizes a judge to permit certain defendants to complete a driver safety 
course in lieu of punishment.
(RQ-476). Request from David R. Smith, M.D., Commissioner, Texas Department of 
Health, 1100 West 49th Street, Austin, concerning impact of leave without pay 
provisions of the General Appropriations Act on Texas Civil Statutes, Article 
8307c, the Workers Compensation Act.
(RQ-477). Request from Robert Eckels, Chair Committee on County Affairs, Texas 
House of Representatives, P.O. Box 2910, Austin, concerning applicability of the 
Tort Claims Act, Chapter 101, Civil Practice and Remedies Code, to a regional 
transit authority created under Texas Civil Statutes, Article 1118y, and related 
questions.
(RQ-478). Request from Jeffrey D. Herrington, Criminal District Attorney, 
Anderson County, Anderson County Courthouse, 500 North Church Street, Palestine, 
concerning the effect of filing with a district clerk a limited power of 
attorney authorizing a corporation to receive child support payments.
(RQ-479). Request from Jose Rodriguez, El Paso County Attorney, Room 201, City-
County Building, El Paso, concerning the term of office of directors of the El 
Paso County Water Control and Improvement District (Westway), and related 
questions.
(RQ-480). Request from Michael E. Hines, Executive Director, Texas Commission on 
Fire Protection, P.O. Box 2286, Austin, concerning whether Chapter 419, 
Subchapter B, of the Government Code prohibits a fire department from employing 
part-time  fire fighters who have not been certified by the Texas Commission on 
Fire Protection.
(RQ-481). Request from Eddie Cavazos, Chairman, Committee on Insurance, Texas 
House of Representatives, P.O. Box 2910, Austin, concerning validity of rules 
adopted by the State Board of Insurance with regard to health maintenance 
organizations. (RQ-482). Request from Wayne Blevins, Ed.D., Executive Secretary, 
Teacher Retirement System of Texas, 1000 Red River Street, Austin, concerning 
authority of the Teacher Retirement System to make certain real estate-related 
investments.
TRD-9318663