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-92-87 (RQ-241). Request from Mike Driscoll, Harris County Attorney, 1001 Preston, Suite 634, Houston, concerning whether a district clerk may charge a fee for making certified copies of papers in a cause of action transferred to another court pursuant to Rule 89 of the Texas Rules of Civil Procedure and related questions. Summary of Opinion. A district clerk may charge a "reasonable" fee for making certified copies pursuant to Rule 89 of the Texas Rules of Civil Procedure. The costs for such services are taxed against the plaintiff. The clerk has no discretion to delay the transfer of a case under Rule 89 by refusing to transfer the case file, even where the plaintiff fails to pay the fee for the clerk's services in making certified copies. TRD-9320535 LO-93-3 (ID#-17346). Request from Robert Earley, Chairman, Committee on Energy, Texas House of Representatives, Austin, concerning whether Article 42.131, sec.6, the Code of Criminal Procedure, extends the benefits of attorney general legal representation to community supervision and corrections departments. Summary of Opinion. The Code of Criminal Procedure, Article 42.131, extends legal representation by the attorney general to employees of community supervision and corrections departments but does not extend such legal representation to community supervision and corrections departments themselves. TRD-9320536 LO-93-4 (RQ-113). Request from Louise Waddill, R.N., Ph.D., Executive Director, Board of Nurse Examiners, Austin, concerning whether a state agency may contract with a private vendor to solicit advertisements for an agency newsletter. Summary of Opinion. The Board of Nurse Examiners does not possess sufficient authority to contract with a private vendor to solicit and secure advertising for a newsletter to be produced by the board. TRD-9320537 LO-93-5 (ID#-18353). Request from Bill Turner, District Attorney, Brazos County, Bryan, concerning whether a county commissioner or other members on the county commissioners court may vote to approve the sheriff's decision to hire the commissioner's nephew as a deputy sheriff. Summary of Opinion. Since members of the commissioners court have no authority over the hiring and firing of employees of the sheriff and are specifically prohibited from acting in any way to influence the employment of such persons, a sheriff is not precluded from hiring for the position of deputy sheriff the nephew of a county commissioner. TRD-9320538 LO-93-7 (RQ-350). Request from Craig D. Pedersen, Executive Administrator, Texas Water Development Board, Austin, concerning whether the Texas Water Development Board may accept monetary and in-kind donations from private businesses to offset the cost of issuing and agency newsletter, and related question. Summary of Opinion. The Water Code, sec.6.192, authorizes the executive administrator of the Water Development Board to solicit and accept donations from a private business, either monetary or in-kind, for the purpose of offsetting the costs of producing an employee newsletter. The Water Development Board is not authorized to print in its newsletter advertisements or discount coupons promoting the donor business. TRD-9320539 LO-93-8 (ID#-17955). Request from Travis J. Koehn, Criminal District Attorney, Austin County, Bellville, concerning whether there would be any illegality involved in a married couple's concurrent service in office as county commissioner and county auditor in Austin County. Summary of Opinion. of the spouse of one of the county commissioners to serve as county auditor does not violate the nepotism law, Texas Civil Statutes, Articles 5996a-5996h. A county commissioner does not violate his oath of office under the Local Government Code, sec.81.002, by virtue of having a community-property interest in a salary claim against the county held by his wife as county auditor. Chapter 171 of the Local Government Code does not prohibit a district judge's commissioner's spouse to serve as county auditor, nor does it prohibit the commissioner's and auditor's concurrent service merely because they are married to each other. Such concurrent service has serious ethical ramifications, however, because even the appearance of a conflict of interest can undermine the public's confidence in officials. This situation may violate the requirement of Title 22, sec.501.11, of the Texas Administrative Code, that a certified or registered public accountant "be independent with respect to the client in fact and in appearance." If the county auditor is certified or registered as provided in the Texas Administrative Code, the Texas State Board of Public Accountancy is empowered to issue an opinion upon written request concerning whether the public accountancy regulations of Title 22, Chapter 526, of the Texas Administrative Code apply to this situation. TRD-9320540 LO-93-9 (ID#-18585). Request from Terry Beals, D.V.M., Executive Director, Texas Animal Health Commission, Austin, concerning whether the General Appropriations Act authorizes the Texas Animal Health Commission to purchase pickup trucks and related question. Summary of Opinion. Article V, sec.19(2) of the General Appropriations Act, Acts 1991, 72nd Legislature, First Civil Statutes, Chapter 19, authorizes the commission to purchase pickup trucks and trucks for the conveyance of special equipment. The commission is not prohibited from using pickup trucks to transport employees. TRD-9320541 LO-93-10 (RQ-453). Request from William M. Hale, Executive Director, Texas Commission on Human Rights, Austin, concerning whether the Commission on Human Rights Act, Texas Civil Statutes, Article 5221k, authorizes local commissions to file civil actions in state district court. Summary of Opinion. The Commission on Human Rights Act, Texas Civil Statutes, Article 5221k, authorizes a local commission to file a civil action in state district court "to effectuate the purposes of [the act] if the federal government or state commission has referred the complaint to the commission or has deferred jurisdiction over the subject matter of the complaint to the commission." TRD-9320542 Opinions DM-196 (RQ-436). Request from Lionel R. Meno, Commissioner, Texas Education Agency, Austin, concerning whether the prekindergarten program established by the Education Code, sec.21.136, is part of elementary education under Texas law, and related questions. Summary of Opinion. The prekindergarten program created by the Education Code, sec.21.136, must be a part of the "public free schools" under Texas law because prekindergarten students are entitled to the benefits of the available school fund; under Article VII, sec.5, of the Texas Constitution, the available school fund can be used only for the support of the public free schools. The state bases the funding it provides to local school districts on the district's weighted average daily attendance and its tax base; we can find nothing in Texas law that permits the state to make distinctions between federally-connected children and other children with regards to funding for the prekindergarten program. Texas school districts are permitted to enroll any four year old in prekindergarten classes. However, the statute requires the districts to establish a prekindergarten program when they identify 15 or more children who meet the criteria in the Education Code, sec.21.136(b). TRD-9320543 DM-197 (RQ-53). Request from Marvin J. Titzman, Executive Director, Texas Surplus Property Agency, San Antonio, concerning whether the Texas Surplus Property Agency is authorized to obtain fire and casualty insurance to protect agency buildings, and related questions. Summary of Opinion. State agencies may not purchase property insurance without legislative authorization. The Texas Surplus Property Agency does not have authority to spend appropriated funds to purchase property insurance to cover its warehouses. TRD-9320544 DM-198 (RQ-125). Request from Lawrence R. Jacobi, Jr., P.E., General Manager, Texas Low-Level Radioactive Waste Disposal Authority, Austin, concerning whether sec.sec.402.272(a), 402.2721, or 402.273(b) of the Health and Safety Code requires the Texas Low-Level Radioactive Waste Disposal Authority to impose waste disposal fees or planning and implementation fees sufficient to reimburse the general revenue fund for interest on amounts received from the fund for interest on amounts received from the fund to finance the pre-operation expenses of the low-level radioactive waste disposal site. Summary of Opinion. The Health and Safety Code, sec.sec.402.272(a), 402.273(b), and 402.2721, require the Texas Low-Level Radioactive Waste Disposal Authority to recover as part of the planning and implementation fee or waste disposal fee the interest expense associated with amounts received from the general revenue fund to finance the pre-operation expenses of the low-level radioactive waste disposal site. TRD-9320545 DM-199 (RQ-214). Request from Eddie Cavazos, Chairman, Committee on Insurance, Texas House of Representatives, Austin, concerning whether the additional money generated from the increase in the motor vehicle registration fee authorized by Texas Civil Statutes, Article 6702.1, sec.4.202(a), as amended by House Bill 2 of the 72nd Legislature, must be distributed to the Cameron County Tax Assessor-Collector or to the Cameron County general fund. Summary of Opinion. Fees collected by the county tax assessor-collector pursuant to Texas Civil Statutes, Article 6702-1, sec.4. 202(a), must be deposited in the general fund of the county. The fees so deposited are dedicated to the office of the county tax assessor-collector to compensate that office for expenses relating to the administration of the motor vehicle registration laws. The commissioners court may not divert such fees to other purposes. The commissioners court must appropriate as much of these funds as it determines are reasonably necessary to compensate the office of count tax assessor-collector for that office's administration of motor vehicle registration laws. TRD-9320546 DM-200 (RQ-424). Request from John B. Holmes, Jr., Harris County District Attorney, Houston, concerning whether a juvenile court is required to hold a hearing prior to waiving its exclusive original jurisdiction in a truancy case and transferring the case to a justice of the peace pursuant to the Family Code, sec.54.021, and related questions. Summary of Opinion. The Family Code, sec.54.021, does not require a juvenile court to hold a hearing prior to waiving its exclusive original jurisdiction in a case under sec.51.03(b)(2) of the Family Code and transferring the case to a justice of the peace. A child brought into court under sec.51.03(b)(2) of the Family Code is entitled to representation by an attorney at all stages of the proceedings. If the child or the child's parents are unable to afford counsel, the court to represent the child. In general, tardiness to class does not invoke proceedings under either sec.51.03(b)(2) of the Family Code or sec.4.25 of the Education Code. TRD-9320547 DM-201 (RQ-465). Request from Bob Bullock, Lieutenant Governor of Texas, Austin, concerning whether authority of the Texas Department of Health to enact rules regarding nursing facilities. Summary of Opinion. The Texas Board of Health is authorized to enact regulations requiring an applicant for a license to operate a nursing facility to disclose certain information regarding the applicant's prior involvement in the operation of nursing facilities. Additionally, the board is authorized to enact regulations that will empower the Texas Department of Health to deny a license based on information the department has received regarding the applicant's prior involvement in the operation of nursing facilities. TRD-9320548 DM-202 (RQ-334). Request from Jim Tallas, Chairman, Committee on Financial Institutions, Texas House of Representatives, Austin, concerning whether the Public Funds Investment Act, Texas Civil Statutes, Article 842a-2, authorizes cities, counties, and certain other public entities to invest public funds in mutual funds holding only adjustable rate mortgages that United States agencies have issued. Summary of Opinion. The Public Funds Investment Act, Texas Civil Statutes, Article 842a-2, authorizes cities, counties, and certain other public and nonprofit entities to invest their funds and funds under their control in mutual funds holding only adjustable rate mortgages that obligate United States agencies provided that the mutual fund complies with sec.2(d) of the act, and provided that the entity invests no more of its money in the mutual fund than sec.2(d) permits. TRD-9320549 Requests for Opinions (RQ-492). Request from James E. "Pete" Laney, Speaker, Texas House of Representatives, Austin, concerning authority of the Board of Licensure for Nursing Home Administrators to impose a $10 fee for continuing education courses, and related questions. (RQ-493). Request from Mike Driscoll, Harris County Attorney, Houston, concerning whether a hospital district is required to release information confidential under the Health and Safety Code, sec.161.032, to the county medical examiner. (RQ-494). Request from Jim Mapel, Criminal District Attorney, Brazoria County, Angleton, concerning whether Chapter 143 of the Local Government Code applies to a municipality that has a paid police department and a volunteer fire department. (RQ-495). Request from Warren Chisum, Chair, Committee on Environmental Regulation, Texas House of Representatives, Austin, concerning procedure for the consolidation of two counties. (RQ-496). Request from Michael H. Corley, Office of the General Counsel, The University of Texas System, Austin, concerning whether the Texas Open Records Act, sec.3(a)(11), exempts from public disclosure correspondence from university professors to the chancellor and the department chair regarding the evaluation of a certain professor and the method and criteria used for such evaluation. (RQ-497). Request from Ben Campbell, Chairman, Committee on County Affairs, Texas House of Representatives, Austin, concerning whether a school district may avoid payment of the motor fuels tax imposed by Chapter 153, Tax Code, if it purchases gasoline for use by a contractor who is providing student transportation for the district. (RQ-498). Request from John W. Segrest, Criminal District Attorney, McLennan County, Texas, Waco, concerning whether a county may accord favored treatment to "socially responsible" bidders, and related questions. (RQ-499). Request from David J. Freeman, Executive Secretary, Texas Racing Commission, Austin, concerning whether the Texas Racing Commission has the authority to adopt rules requiring its licensees to provide workers' compensation insurance for the licensees' employees. (RQ-500). Request from Merri Schneider-Vogel, Bracewell & Patterson, Houston, concerning whether information related to certain bills for legal services provided to a school district is subject to public disclosure under the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a. (RQ-501). Request from Hugo Berlanga, Chairman, Committee on Public Health, Texas House of Representatives, Austin, concerning whether a county education district is barred from the capture of incremental tax revenues by a preexisting reinvestment zone created under the Texas Tax Increment Financing Act, Article 1066e, and related questions and whether the Lubbock County Hospital District may contribute funds to the construction of the Lubbock International Cultural Center. (RQ-502). Request from Delwin Jones, Chairman, Committee on Redistricting, Texas House of Representatives, Austin, concerning whether the Lubbock County Hospital District may contribute funds to the construction of the Lubbock International Cultural Center. (RQ-503). Request from Mark W. Stiles, Chairman, House Committee on Calendars, Texas House of Representatives, Austin, concerning whether an authorized lender may require a borrower to give a check as "collateral" prior to the "payment due" date, and related questions. (RQ-504). Request from Honorable Jack Herrington, District and County Attorney, Red River County, Texas, Clarksville, concerning authority of the Texas Department of Criminal Justice to operate a work program facility that produces good and services that are marketed for profit or exempted under the Federal Private Industry Enhancement Program. (RQ-505). Request from Charles S. Brack, County Attorney, Chambers County, Anahuac, concerning authority of a commissioners court to establish a civil process department that is not under the control of the sheriff. (RQ-506). Request from Mike Driscoll, Harris County Attorney, Houston, concerning whether a commissioners court is authorized to require a county purchasing agent to make purchases by and for a county-wide hospital district. (RQ-507). Request from Mike Driscoll, Harris County Attorney, Houston, concerning whether a member of an appraisal review board may represent taxpayers before that board under various circumstances. (RQ-508). Request from David Flores, Williamson County Auditor, Georgetown, concerning whether a county's single-employer, self-funded medical benefit plan is subject to Articles 1.24C, 3.51-9, or 21.53 of the Insurance Code, or to the federal Employee Retirement Income Security Act, 29 United States Code, sec.1002(40) (A), and related questions. (RQ-509). Request from Homer R. Goehrs, M.D., Executive Director, Texas State Board of Medical Examiners, Austin, concerning circumstances under which the Board of Medical Examiners may invoke Texas Civil Statutes, Article 6252-17, sec.2(e) the Texas Open Meetings Act, to convene in executive session. (RQ-510). Request from Carl Parker, Chairman, Committee on Economic Development, Texas State Senate, Austin, concerning constitutionality of the Tax Code, sec.11.29, which authorizes a tax exemption for land dedicated by easement as a disposal site for material dredged from the Intercoastal Waterway by or under the direction of the state or federal government. TRD-9320550