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-93-9 (ID#-18585).
Request from Terry Beals, D.V.M., Executive Director, Texas Animal Health 
Commission, P.O. Box 12966, Austin, concerning whether the General 
Appropriations Act authorizes the Texas Animal Health Commission to purchase 
pickup trucks and related questions.
Summary of Opinion.
The General Appropriations Act, Article V, sec.19(2), Acts 1991, 72nd 
Legislature, First Called Session, 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-9322002
LO-93-11 (RQ-302).
Request from Mike Driscoll, Harris County Attorney, 1001 Preston, Suite 634, 
Houston, concerning whether the Harris County Flood Control District has a 
right-of-way to build flood control works across Harris County roads, and 
related questions.
Summary of Opinion.
The Harris County Flood Control District is authorized to build flood control 
works across Harris County roads and highways subject to limits in the law 
governing the flood control district and applicable regulations adopted under 
Section 2 of the Harris County Road Law. Harris County may not construct roads 
across property controlled by the district, without the written concurrence of 
the district. Local Government Code, sec.272.001(b)(6) requires that land owned 
by a political subdivision of the state, such as the district, may be conveyed 
to another "governmental entity that has the power of eminent domain," such as 
the county, provided the property is appraised and transferred for no less than 
fair market value. Article III, Section 52 of the Texas Constitution does not 
prohibit quid pro quo contracts between political subdivisions designed to carry 
out a shared governmental purpose.
TRD-9322003
LO-93-12 (ID#-17933).
Request from Genevieve G. Stubbs, Associate General Counsel, Texas A&M 
University System, College Station, concerning whether the Texas A&M University 
System may contract with a law firm that has, as one of its partners, a member 
of the Texas A&M University System's board of regents and related questions.
Summary of Opinion.
The common-law rules pertaining to conflict of interest preclude the Texas A&M 
University System (TAMUS) from contracting with a law firm in which one of the 
members of the board of regents of TAMUS is a partner. Any services the law firm 
performed for TAMUS after the regent became a partner were performed pursuant to 
a void agreement, and TAMUS may not pay the law firm for such services. 
Furthermore, because a partner has an indirect interest in the law firm's 
profits and losses, neither the  fact that the regent did not receive a salary 
from the law firm during the period that the law firm performed services for 
TAMUS, nor the fact that the regent will receive no direct monetary remuneration 
from these services at all, alter the analysis or the result.
TRD-9322004
LO-93-13 (RQ-450).
Request from Ken Armbrister, Chairman, Intergovernmental Relations Committee, 
Texas State Senate, P.O. Box 12068, Austin, concerning whether the Texas Racing 
Commission may require a Class 2 racetrack licensee that has had its license 
reinstated pursuant to the Texas Racing Act, sec.6.19, Texas Civil Statutes, 
Article 179e, to pay an annual fee.
Summary of Opinion.
The Texas Racing Commission
may not, pursuant to the Texas Racing Act, sec.6.19(b), Texas Civil Statutes, 
Article 179e, require a Class 2 racetrack licensee whose license the 
commissionhas reinstated in accordance with sec.6.19(a) to pay an annual fee.
TRD-9322005
LO-93-14 (ID#-18028).
Request from Ashley Smith, Chairman, Committee on Higher Education, Texas House 
of Representatives, P.O. Box 2910, Austin, concerning whether application of 
affirmative vote requirement in the Local Government Code, sec.212.015, to a 
proposed replat satisfying all zoning requirements is lawful.
Summary of Opinion.
The Local Government Code, sec.212.015(c), as amended by Senate Bill 1075, Acts 
1989, 71st Legislature, Chapter 345, sec.3, does not violate the provisions of 
Article II, Section 1, and Article III, Section 1, of the Texas Constitution 
which prohibit the legislature from delegating its legislative powers to private 
parties.
TRD-9322006
LO-93-15 (ID#-18042).
Request from Kim Brimer, Chairman, Committee on Business and Industry, Texas 
House of Representatives, P.O. Box 2910, Austin, concerning the construction of 
a recently enacted statute which regulates the keeping of "dangerous dogs."
Summary of Opinion.
A dog's commission of an unprovoked act against another animal may be sufficient 
to satisfy the definition of "dangerous dog" under the Health and Safety Code, 
sec.822.041, so long as the attack causes "a person to reasonably believe that 
the dog will attack and cause bodily injury to that person."
TRD-9322007
LO-93-16 (ID#-18159).
Request from John Fouts, District Attorney, 39th Judicial District, P.O. Box 
996, Haskell, concerning whether there exist any restrictions on the burial of 
non-human animals in a cemetery.
Summary of Opinion.
The Health and Safety Code, sec.713.027, authorizes a commissioners court in a 
county of fewer than 8,200 to determine whether non-human animals may be buried 
in a cemetery owned and operated by the county.
TRD-9322008
LO-93-17 (ID#-17139).
Request from Raymie Kana, County Auditor, Colorado County Courthouse, Third 
Floor, Columbus, concerning payments to spouse of county judge for expenses 
incurred in execution of contract under federal program.
Summary of Opinion.
A county judge does not violate the oath of office by virtue of the county's 
reimbursement of expenses incurred by the judge's spouse in furtherance of a 
contract between the county and the Texas Department of Human Services. If that 
reimbursement amounts to a "substantial interest in a business entity" under 
Local Government Code, Chapter 171, the judge must declare the interest and 
abstain from further participation in the matter.
TRD-9322009
LO-93-18 (RQ-475).
Request from Bill Sims, Chairman, Natural Resources Committee, Texas State 
Senate, P.O. Box 12068, Austin, concerning whether a court may assess fees and 
court costs in a proceeding under Texas Civil Statutes, Article 6701d, sec.143A, 
subsection (a)(1).
Summary of Opinion.
A court may not impose fees and court costs in a proceeding under Texas Civil 
Statutes, Article 6701d, sec.143A, subsection (a) (1).
TRD-9322010
LO-93-19 (ID#-17784, ID#-18531).
Request from John Vance, Dallas County District Attorney, Frank Crowley Courts 
Building, Dallas, concerning whether the minimum annual salary of statutory 
county judges established by the Government Code, sec.25.0005, includes 
contributions under the Federal Insurance Contributions Act.
Summary of Opinion.
The minimum annual salary of statutory county court judge referred to the 
Government Code, sec.25.0005(a), includes that portion of the judge's FICA 
contribution which is paid by the state or county.
TRD-9322011
LO-93-20 (RQ-499).
Request from David J. Freeman, Executive Secretary, Texas Racing Commission, 
P.O. Box 12080, 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.
Summary of Opinion.
The Texas Racing Commission lacks the authority to require that its licensees 
provide workers' compensation insurance.
TRD-9322012
LO-93-23 (RQ-74).
Request from Alfred F. Hurley, Chancellor, University of North Texas College of 
Osteopathic Medicine, P.O. Box 13737, Denton, concerning whether certain 
disabled individuals in a state university vocational training program are 
"employees" under Texas Civil Statutes, Article 8309g (relating to workers' 
compensation coverage).
Summary of Opinion.
Clients or patients of state institutions who are participating in a state 
university vocational training program are not state employees for the purposes 
of the state workers' compensation program, Texas Civil Statutes, Article 8309g, 
sec.1.
TRD-9322013

Opinions
DM-203 (RQ-490).
Request from Gonzalo Barrientos, Chairman, Committee on Nominations, Texas State 
Senate, P.O. Box 12068, Austin, concerning status of "recess guberatorial by 
other nominees before the senate has had the opportunity to confirm or reject 
them in a regular or special session."
Summary of Opinion.
an individual to a position while the legislature is in recess, that person
resigns the position before the legislature next convenes, is named to the 
position, there is no requirement that the name of the be submitted to the 
legislature. need not be validated by the legislature for any period in which 
that person held the position de jure.
TRD-9321995
DM-204 (RQ-457).
Request from Allen Ross Hightower, Chairman, Committee on Corrections, Texas 
House of Representatives, P.O. Box 2910, Austin, concerning authority of a 
county to improve certain subdivision roads and assess the cost of repairs 
against subdivisions.
Summary of Opinion.
Texas Civil Statutes, Article 6702-3, requires the commissioners court to 
propose separate assessments and hold separate elections in each subdivision. 
Article 6702-3, sec.(g), gives the commissioners court the authority to 
determine when the lien will be recorded after an assessment has been approved 
by a subdivision. If the costs of an improvement exceed the maximum assessment, 
the commissioners court may complete the improvement with non-assessment funds 
or propose a new assessment to complete the project and hold a new election 
according to the statutory requirements. The determination whether particular 
costs are assessable improvement costs or nonassessable administrative costs 
involves questions of fact which are not amenable to the opinion process and 
should be resolved by the commissioners court in the first instance.
TRD-9321996
DM-205 (RQ-491).
Request from David Smith, M.D., Commissioner, Texas Department of Health, 1100 
West 49th Street, Austin, concerning whether the Health and Safety Code, 
sec.142.005, applies to nonprofit corporations and related questions.
Summary of Opinion.
In the context of the Health and Safety Code, sec.142.005(a), "business entity 
that includes members that are not individuals" encompasses not only nonprofit 
corporations but also for-profit business entities that include members that are 
not individuals. Again in the context of sec.142.005(a), "corporation the shares 
of which are owned by another corporation" describes a corporation in which 
another corporation owns any of the shares. Section 142.005(a)(1) requires a 
foreign corporation to establish a Texas corporation if the corporation desires 
to be licensed to operate a home health agency in Texas.
TRD-9321997
DM-206 (RQ-484).
Request from Mary Sapp, Executive Director, Texas Department on Aging, P.O. Box 
12786, Austin, concerning whether the Human Resources Code, sec.101.063 provides 
immunity to volunteer ombudsmen in the Texas Department on Aging long-term care 
ombudsman program.
Summary of Opinion.
The Human Resources Code, sec.101.063, which provides that an ombudsman is not 
liable for civil damages or subject to criminal prosecution for good faith acts 
performed in the course of his or her official duties, applies to interns in the 
volunteer ombudsman program. The state ombudsman is entitled to legal 
representation from the Office of the Attorney General. This representation will 
only be provided in instances where the action is being sought against the 
individual in his official capacity.
TRD-9321998
DM-207 (RQ-428).
Request from Renee Higginbotham-Brooks, Chairman, Texas Alcoholic Beverage 
Commission, P.O. Box 13127, Austin, concerning whether the Opening Meetings Act, 
Texas Civil Statutes, Article 6252-17, permits a member of the Alcoholic 
Beverage Commission who is unable to attend a commission meeting in person to 
participate by live video transmission.
Summary of Opinion.
In the absence of specific legislative authorization, a governmental body 
subject to the Open Meetings Act, Texas Civil Statutes, Article 6252-17, may not 
permit a member who is unable to attend a meeting in person to participate via 
live video transmission.
TRD-9321999
DM-208 (RQ-473).
Request from John W. Segrest, Criminal District Attorney, McLennan County, 219 
North Sixth Street, Suite 200, Waco, concerning whether a person related to a 
district judge within the degree prohibited by the nepotism statute, Texas Civil 
Statutes, Article 5996a, can take employment with a community supervision and 
corrections department without causing a violation of the nepotism statute in 
light of the provisions of the Code of Criminal Procedure, Article 42.131.
Summary of Opinion.
The Code of Criminal Procedure, Article 42.131 requires the director of a 
community supervision and corrections department to hire the officers and other 
employees necessary to perform the professional and clerical work of the 
department. The judges in the judicial district that the community supervision 
and corrections department serves have no further authority to hire or to 
approve the director's hiring of additional department personnel. The word 
"employ," as used in the Code of Criminal Procedure, Article 42.131, sec.2(a) 
and sec.4, has two different meanings. In the context of sec.2(a), "employ" 
refers to the responsibility of the judicial district to compensate department 
personnel. However, in the context of sec.4, "employ" refers to the department 
director's obligation to hire necessary personnel. Because the judges have no 
authority to hire or approve the hiring of department personnel other than the 
director, no violation of the nepotism statute, Texas Civil Statutes, Article 
5996a, sec.1(a), occurs if the department director hires a person related within 
the third degree of consanguinity to one of the judges in that judicial 
district.
TRD-9322000
DM-209 (RQ-118).
Request from James L. Crouch, Executive Director, Public Utility Commission, 
7800 Shoal Creek Boulevard, Austin, concerning whether the former employee of 
the Public Utility Commission who goes to work for an affiliate of a regulated 
utility violates Texas Civil Statutes, Article 1446c, sec.6.
Summary of Opinion.
Texas Civil Statutes, Article 1446c, sec.6(i), provides that a former employee 
of the Public Utility Commission (PUC) may not be employed within one year after 
leaving the commission by a public utility that was in the scope of his official 
responsibility while he worked for the commission. This prohibition does not bar 
a former employee from working for the affiliate of such public utility within a 
year after his departure from the commission. Texas Civil Statutes, Article 
1446c, sec.6(d), prohibits an employee of the Public Utility Commission (PUC) 
from asking an officer of a regulated utility for employment with that utility 
or an affiliated interest of the utility. Section 6(e) prohibits an officer of a 
public utility or affiliated interest from offering employment to any employee 
of the commission. Whether any person has violated either of these provisions is 
a fact question. Senate Bill 1 of the 72nd Legislature adopted post-employment 
restrictions on the appearance before a regulatory agency by former state 
officers and employees of that agency. These provisions, codified as Texas Civil 
Statutes, Article 6252-9b, sec.7A, do not apply to former state officers or 
employees if their representation of a person before a state agency is 
restricted by other law. Since Texas Civil Statutes, Article 1446c, sec.6(j), 
places post-employment restrictions on appearances before the PUC by its former 
commissioners and employees, Texas Civil Statutes, Article 6252-9b, sec.7A, does 
not apply to these individuals.
TRD-9322001

Requests for Opinions
(RQ-511). Request from Benny M. Mathis, Jr., Executive Director, Structural
Pest Control Board, 9101 Burnet Road, Suite 201, Austin, concerning whether 
provisions of the City of Greenville regulation of pesticides ordinance are 
preempted by the Structural Pest Control Act, Texas Civil Statutes, Article 
135b-6.
(RQ-512). Request from Mike Driscoll, Harris County Attorney, 1001 Preston, 
Suite 634, Houston, concerning whether a justice of the peace may dismiss
a traffic charge if the defendant fails to complete a driver safety course 
authorized by Texas Code of Criminal Procedure, Article 45.54.
(RQ-513). Request from Libby Linebarger, Chair, Committee on Public Education, 
Texas House of Representatives, P.O. Box 2910, Austin, concerning whether a 
legislator who is employed part-time by an independent school district holds a 
"position of profit under this State."
(RQ-514). Request from Marvin Titzman, Executive Director, Texas Surplus 
Property Agency, P.O. Box 8120, San Antonio, concerning whether an entity or 
institution that owes service and handling charges and fees to the Texas Surplus 
Property Agency is "indebted to the state" for purposes of the Government Code, 
sec.403.055, and related questions.
(RQ-515). Requested from John Montford, Chairman, Senate Committee on Finance, 
Texas State Senate, P.O. Box 12068, Austin, and William Treacy, Executive 
Director, Texas State Board of Public Accountancy, 1033 La Posada, Suite 340, 
Austin, concerning authority of the Texas State Board of Public Accountancy to 
regulate non-licensees.
(RQ-516). Requested from David Cain, Chair, House Committee on Transportation, 
P.O. Box 2910, Austin, concerning construction of recent amendments to Texas 
Civil Practices and Remedies Code, regarding a municipality's award of a 
contract to a minority business enterprise.
(RQ-517). Request from Amy Johnson, Office of Public Insurance Counsel, 816 
Congress Avenue, Suite 1400, Austin, concerning whether the Office of Public 
Insurance Counsel is required to register with the Texas Ethics Commission as a 
lobbyist.
(RQ-518). Request from Mike Driscoll, Harris County Attorney, 1001 Preston, 
Suite 634, Houston, concerning whether a constable may seize and sell normally 
exempted personal property under a writ of execution to collect delinquent child 
support payments.
(RQ-519). Request from Roland Saul, Criminal District Attorney, Deaf Smith 
County, Texas, 235 East Third, Room 401, Hereford, concerning whether the City 
of Hereford may convey real property to the Deaf Smith County Hospital District.
(RQ-520). Request from Libby Linebarger, Chair, Committee on Public Education, 
Texas House of Representatives, P.O. Box 2910, Austin, concerning authority of 
the Foundation School Fund Budget Committee to revise its estimate of available 
revenue.
(RQ-521). Request from John Whitmire, Chair, Committee on Criminal Justice, 
Texas State Senate, P.O. Box 12068, Austin, concerning validity of a municipal 
referendum on zoning, and related questions.
(RQ-522). Request from Debra Danburg, Chair, Committee on Elections, Texas House 
of Representatives, P.O. Box 2910, Austin, concerning validity of a proposed 
ordinance of the City of Houston that would require certain establishments 
serving alcoholic beverages to offer condoms for sale.
(RQ-523). Request from Mike Driscoll, Harris County Attorney, 1001 Preston, 
Suite 634, Houston, concerning whether an appraisal review board may correct the 
market value of real property which receives productivity valuation under the 
Tax Code, Chapter 23.
(RQ-524). Request from John Hannah, Jr., Secretary of State, P.O. Box 12697, 
Austin, concerning authority of the Secretary of State to provide by rule that 
certain state funds may not be used to pay costs attributable to the normal 
operation of a voter registrar's office.
TRD-9321994