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-93-31 (RQ-513). Request from Libby Linebarger, Chairman, Committee on Public Education, Texas House of Representatives, Austin, concerning whether a legislator who serves as an independent contractor for an independent school district holds a "position of profit under this State". Summary of Opinion. A legislator is not as a matter of law prohibited by the Texas Constitution, Article XVI, sec.40, from acting in the capacity of "independent contractor" for a school district on a part-time basis. TRD-9324853 LO-93-32 (RQ-18190). Request from Betty Denton, Member, Texas House of Representatives, Austin, concerning whether the Department of Public Safety is authorized to require the presentation of an original Social Security card when a person applies for a new or a renewal driver's license. Summary of Opinion. The Department of Public Safety is authorized to require that an applicant for a driver's license supply his social security number and some documentation of that number. TRD-9324854 LO-93-34 (RQ-502). Request from Delwin Jones, Chairman, House Redistricting Committee, Texas House of Representatives, Austin, concerning whether the Lubbock County Hospital District may contribute funds for construction of an international cultural center at Texas Tech University. Summary of Opinion. The Lubbock County Hospital District does not have authority to contribute its funds for the construction of the international cultural center at Texas Tech University. TRD-9324855 LO-93-35 (RQ-324). Request from A. J. (Jack) Hartel, Liberty County Attorney, Liberty, concerning whether a navigation district may enter into a tax abatement agreement when a board member of the navigation district owns an interest in the property receiving the tax abatement. Summary of Opinion. The Chamber-Liberty Counties Navigation District is subject to chapter 171 of the Local Government Code, which governs conflicts of interest for local government officials. A district board member who possesses a "substantial interest" in real property that would be affected by a proposed tax abatement must follow the recusal procedures set forth in the Local Government Code, sec.171.004(a). Whether a member of the district board who owns an interest in property receiving a proposed tax abatement from the district possesses a substantial interest" depends upon the facts surrounding the transaction at issue. TRD-9324856 LO-93-36 (RQ-19069). Request from Tom Craddick, Chairman, House Committee on Ways and Means, Austin, concerning eligibility for participation in a poster contest sponsored by the Texas Dietetic Association and Associated Milk Producers, Inc. Summary of Opinion. No Texas statute or constitutional provision governs the regulation of a "nutrition poster contest" if the contest is based solely on skill. TRD-9324857 LO-93-37 (RQ-16363). Request from Luis V. Saenz, Cameron County District Attorney, Brownsville, concerning whether a teacher at Texas State Technical College is prohibited from serving as a Harlingen city commissioner. Summary of Opinion. The Texas Constitution, Article XVI, sec.40, bars a teacher employed by Texas State Technical College from serving as a city commissioner if he or she receives a salary from the city for doing so. Section 40 does not preclude such a state employee from serving as a city commissioner if he or she renounces the salary. A city commissioner who accepts a position of employment with the state does not automatically forfeit his or her position, and may continue in both positions, if he or she renounces the salary, and the monies the city commissioner receives as expenses do not exceed the actual expenses he or she incurs. TRD-9324858 LO-93-38 (RQ-19119). Request from Bill Moore, Johnson County Attorney, First Floor Courthouse, Cleburne, concerning authority of a juvenile court to designate county space as a juvenile processing office, pursuant to the Family Code, sec.52.025. Summary of Opinion. Title 3 of the Family Code does not preclude a juvenile court from designating more than one office or room as a juvenile processing office in each police facility and sheriff's office within the court's jurisdiction. TRD-9324859 LO-93-39 (RQ-18191). Request from Betty Denton, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether the use of the "Denver boot" by a municipal police department constitutes an unconstitutional taking of property without due process. Summary of Opinion. The use by cities of the Denver boot is not unconstitutional per se. TRD-9324860 LO-93-40 (RQ-16323). Request from Robert Earley, Chairman, Committee on Energy, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether it is permissible for a gas or electric utility company to waive deposits for United States Navy personnel. Summary of Opinion. Texas Civil Statutes, Article 1438, prohibits a gas or electric utility company from discriminating against any person "in the charge for such gas, electric current or power, or in the service rendered under similar and like circumstances." The determination whether a gas or electric utility company's practice of waiving a deposit for United States Navy personnel violates this provision involves questions of fact and is therefore not amenable to the opinion process. For example, if the Navy has agreed to guarantee the bills of its personnel, then one might conclude that naval personnel and civilian consumers do not receive service "under similar and like circumstances." TRD-9324861 LO-93-41 (RQ-19089). Request from Kenny Marchant, Chairman, Committee on Investments and Banking, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether a retired individual who is receiving retirement benefits from the Teacher Retirement System may be compensated as an elected member of a municipal governing body. Summary of Opinion. Nothing in Article XVI, sec.40 acts to bar a retired individual who is receiving retirement benefits from the Teacher Retirement System from simultaneously receiving compensation as an elected member of a city council. TRD-9324862 LO-93-42 (RQ-20029). Request from Allen Place, Chairman, Committee on Criminal Jurisprudence, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether a home-rule city may reimburse its officials in a fixed amount for expenses incurred. Summary of Opinion. Unless an individual otherwise receives all or part of his compensation from funds of the state, he is not prohibited from accepting a "fixed monthly expense allowance," without regard to expenses actually incurred, for service on a city commission. TRD-9324863 LO-93-43 (RQ-19317). Request from S. E. Seely, El Paso County Auditor, 500 East San Antonio Street, Room 406, El Paso, concerning whether the County of El Paso may use the county law library fund to maintain statutes and reporters located in the chambers of district and county courts. Summary of Opinion. Under the Local Government Code, Chapter 323, Subchapter B, it is permissible for a county to use the county law library fund to purchase statutes and reporters to be located in the chambers of district and county courts and thereafter maintain them, provided that the materials are convenient and readily accessible to litigants. If the materials were purchased with general funds of the county, the county law library fund cannot be used to maintain them unless the commissioners court transfers the materials to the county law library collection. It is for the commissioners court to decide in its discretion whether to use the county law library fund for this purpose. TRD-9324864 LO-93-44 (RQ-16460). Request from David J. Freeman, Executive Secretary, Texas Racing Commission, P.O. Box 12080, Austin, concerning whether the Texas Racing Act, Article 7, Texas Civil Statutes, Article 179e, requires an individual investor in a licensed pari-mutuel racetrack to be licensed. Summary of Opinion. The Texas Racing Act, sec.7.02, Texas Civil Statutes, Article 179e, requires an individual who invests in a racetrack with pari-mutuel wagering to receive a license from the Texas Racing Commission. TRD-9324865 LO-93-45 (RQ-17260). Request from Dwight P. McDaniel, Sabine County Attorney, P.O. Box 1090, Hemphill, concerning effects of redistricting on incumbent justices of the peace in Sabine County. Summary of Opinion. Pursuant to Article V, sec.18(c) of the Texas Constitution a justice of the peace in office on the effective date of a change of precinct boundaries does not lose his office but rather serves in the new precinct where the justice of the peace resides on the effective date of the change for the term to which the justice of the peace was elected or appointed. After election or redistricting, a justice of the peace need not continue to reside in the precinct in which he serves in order to retain office in that precinct so long as he continues to reside in the county in which he serves. TRD-9324866 LO-93-46 (RQ-432). Request from Gary Compton, Chairman of the Board, Texas Youth Commission, P.O. Box 4260, Austin, concerning whether Article VII, sec.9 of the Texas Constitution grants the Parrie Haynes Ranch, which was willed "to the State Orphan Home of Texas to help orphan children," to the asylum fund established by that constitutional provision. Summary of Opinion. Article VII, sec.9 of the Texas Constitution does not require the Parrie Haynes Ranch, property willed to the State Orphans Home for the benefit of orphan children, to be placed in the asylum fund established by that provision. TRD-9324867 Open Records Decisions ORD-614 (RQ-430). Request from Fred S. Brinkley, Jr., R.Ph., Executive Director/Secretary, Texas State Board of Pharmacy, 8505 Cross Park Drive, Suite 110, Austin, concerning application of the Texas Pharmacy Act, sec.27A, Texas Civil Statutes, Article 4542a-1, relating to program to aid impaired pharmacists and pharmacy students; availability of records under sec.27A. Summary of Opinion. The Texas Pharmacy Act, sec.27A(d), Article 4542a-1, does not prohibit the release of information indicating the status of a complaint, irrespective of whether the release of this information reveals that disciplinary action was instituted under sec.27A. The terms of "impaired" orders issued prior to June 18, 1983, are excepted from required public disclosure by the Open Records Act, sec.3(a)(1) in conjunction with the Texas Pharmacy Act, sec.27A(d). TRD-9324868 Opinions DM-216 (RQ-497). Request from Ben Campbell, Chairman, Committee on County Affairs, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether a school district's purchases of gasoline for use by an independent contractor in the provision of transportation services for the school district are exempt from the gasoline tax. Summary of Opinion. The school district exemption from the gasoline tax, Tax Code sec.153.104(7), applies to gasoline purchased directly by a school district and used by independent contractors solely for the provision of transportation services to the district. TRD-9324842 DM-217 (RQ-514). Request from, Marvin J. 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. Summary of Opinion. The Texas Surplus Property Agency, pursuant to the Government Code, sec.403.055 may request the comptroller to withhold warrants to an entity or institution that has failed to pay the agency accrued service and handling charges and fees. Thus, provided that the agency properly alleges to the comptroller the statutory basis of the debt, the comptroller is authorized to withhold such warrants. Whether the comptroller is authorized to withhold any warrant that is payable to an individual identified and certified as the principal officer or responsible employee of the entity or institution that is indebted to the agency is a question involving the resolution of facts; it is therefore outside the scope of the opinion process. TRD-9324843 DM-218 (RQ-466). Request from Tom Craddick, Chairman, Committee on Public Health, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether an additional sales and use tax under the Tax Code, sec.321. 101(b) may be used to finance a homestead exemption, whether an eligible city may simultaneously adopt sales and use taxes under Texas Civil Statutes, Article 5190.6, sec.4A and sec.4B and related questions. Summary of Opinion. A city is not authorized to use an additional sales and use tax under the Tax Code, sec.321.101(b) to finance a homestead exemption. A city that adopts a one-half cent sales and use tax under Texas Civil Statutes, Article 5190.6, sec.4B, may also adopt in the same election a combined one-half cent sales and use tax under sec.4A of that Article and the Tax Code, sec.321.101(b), assuming that the city is eligible to adopt a sales and use tax under these provisions and the overall sales and use tax rate would not exceed statutory limits. A city is not authorized to join a proposal to adopt a sales and use tax under sec.4B, and a combined sales and use tax under sec.4A and sec.321.101(b), on the ballot as a single ballot proposition. A city is not authorized to adopt a sales and use tax under sec.4B at a rate less than one- half of one percent. The fact that a municipal advisory board member is defined as a city officer in a city code or charter does not necessarily make him or her an officer for purposes of state law in general or Article 5190.6 in particular. The determination whether members of a particular municipal advisory board are city officers must be made on a case-by-case basis. TRD-9324844 DM-219 (RQ-492). Request from James E. "Pete" Laney, Speaker, Texas House of Representatives, P.O. Box 2910, Austin, concerning authority of the Board of Licensure for Nursing Home Administrators to charge and "collect a $10 fee for each administrator-participant in all education courses approved by the [board] for continuing education units". Summary of Opinion. The Board of Licensure for Nursing Home Administrators is not authorized to impose and collect a $10 fee from administrators or participants in courses conducted by outside sources and approved by the board as continuing education unit. TRD-9324845 DM-220 (RQ-325). Request from Ben W. Childers, Fort Bend County Attorney, 309 South Fourth Street Suite 621, Richmond, concerning whether the Fort Bend County Tax Assessor/Collector may collect additional taxes for change of use of agricultural land in light of the 1989 amendment to the Tax Code, sec.23.55(e). Summary of Opinion. The 1989 amendment of the Tax Code, sec.23.55(e) shifted the authority to determine that a change of use of agricultural land has occurred and to notify the landowner of the determination from the Fort Bend County tax assessor/collector to the chief appraiser of the Fort Bend Central Appraisal District. The tax assessor/collector has the authority to collect the additional taxes at issue pursuant to the pre-amendment version of sec.23.55(e) only if the tax assessor/collector sent the landowner a statement for additional taxes and interest prior to September 1, 1989, the effective date of the amendment. TRD-9324846 DM-221 (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. Summary of Opinion. The City of Greenville regulation of pesticide ordinance provisions regarding notice are inconsistent with and therefore preempted by the Structural Pest Control Act, Texas Civil Statutes, Article 135b-6 (the Act). The ordinance provisions regarding the dissemination of educational materials and requiring professional pesticide applicators to submit certain reports are not inconsistent with the Act. TRD-9324847 DM-222 (RQ-478). Request from Jeffery D. Herrington, Criminal District Attorney, Anderson County Courthouse, 500 North Church Street, Palestine, concerning whether a child support obligee may modify a child support order by filing with a district clerk a limited power of attorney authorizing a corporation to receive child support payments paid through the district clerk's office along with a request that the clerk send the child support payments to that corporation. Summary of Opinion. Unless the Family Code, sec.14.08(h), applies, a district clerk must pay child support payments to the person designated in the existing child support order or in that portion of a divorce decree providing for child support. Thus, a district clerk must continue to pay the obligee designated in the court order even though the obligee has filed with the clerk a limited power of attorney authorizing a corporation to receive the child support payments to that corporation. TRD-9324848 DM-223 (RQ-362). Request from Bryan M. Perot, Executive Officer, Polygraph Examiners Board, P.O. Box 4087, Austin, concerning whether Texas Civil Statutes, Article 6252-9b, sec.7A(a), prohibits a former member of the Polygraph Examiners Board from appearing before the board in connection with sponsoring a polygraph intern. Summary of Opinion. Texas Civil Statutes, Article 6252-9b, sec.7A(a) , prohibits a former member of the Polygraph Examiners Board from sponsoring a polygraph intern before the second anniversary of the date the person ceased to be a member of the board. TRD-9324849 DM-224 (RQ-463). Request from Mike Driscoll, Harris County Attorney, Houston, concerning whether the Harris County Bail Bond Board is authorized to issue more than one bail bond license to a corporate surety, and related question. Summary of Opinion. Texas Civil Statutes, Article 2372p-3, authorizes the Harris County Bail Bond Board to issue multiple license to a corporate surety. In an election of the bail bondsmen's representative to the board, a corporate surety is entitled to cast only one vote. TRD-9324850 DM-225 (RQ-420). Request from Clem R. Cannon, Karnes County Auditor, 200 East Calvert, Karnes City, concerning liability for costs of health care provided to indigent inmates of the Karnes County Jail. Summary of Opinion. Subject to the given caveats, the Karnes County Hospital District is responsible for the costs of medical care provided to its indigent residents incarcerated in the Karnes County Jail. Other hospital districts or public hospitals are responsible for such costs with respect to their indigent residents incarcerated in the Karnes County Jail. The county of residence of an indigent inmate of the Karnes County Jail who does not reside in a hospital district or public hospital service area is responsible for the costs of his medical care. TRD-9324851 DM-226 (RQ-498). Request from John W. Segrest, Criminal District Attorney, McLennan County, 219 North Sixth Street, Suite 200, Waco, concerning whether the Local Government Code, sec.381.004, creates an exemption to competitive bidding requirements and related questions. Summary of Opinion. The determination whether a particular county policy is "legal" is beyond the purview of the opinion process. The Local Government Code sec.381.004, does not violate the equal protection clause of the fourteenth amendment of the United States Constitution. The determination whether a particular county program violates the fourteenth amendment's equal protection clause would require the resolution of factual matters, such as determinations regarding the county's reasons for adopting the program and the verity of those reasons, that are not amenable to the opinion process. TRD-9324852 Requests for Opinions (RQ-535). Request from Honorable John F. Miller, Jr., Bowie County Criminal District Attorney, P.O. Box 3030, Bi-State Justice Center, Texarkana, concerning whether a commissioners court is authorized to regulate industrial landfill sites located outside the boundaries of a municipality. (RQ-536). Request from Honorable Tom Craddick, Committee on Ways and Means, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether a county commissioner may contract for the sale of goods and services to a community center established under Chapter 534, Subchapter A, Health and Safety Code. (RQ-537). Request from Mr. Charles Karakashian, Jr., Assistant General Counsel, Texas Department of Public Safety, 5805 North Lamar Boulevard, Box 4087, Austin, concerning whether information regarding traffic tickets issued by various cities, including the name, address, age, gender, and race of the ticketed individuals, is subject to disclosure under the Texas Open Records Act, Article 6252-17a. (RQ-538). Request from Honorable Bill Ratliff, Chair, Committee on Education, Texas State Senate, P.O. Box 12068, Austin, concerning whether a school district may establish and fund an education foundation, and related questions. (RQ-539). Request from Honorable Bill Ratliff, Chair, Committee on Education, Texas State Senate, P.O. Box 12068, Austin, concerning the levy and collection of property taxes by a county education district, and related questions. (RQ-540). Request from Honorable O. H. "Ike" Harris, Chair, Committee on State Affairs, Texas State Senate, P.O. Box 12068, Austin, concerning implementation of Texas Civil Statutes, Article 5221a-10 which provides for the regulation of "temporary worker employers" by the Texas Department of Licensing and Regulation. (RQ-541). Request from Mr. John R. Hale, Commissioner, Credit Union Department, 914 East Anderson Lane, Austin, concerning authority of a credit union to engage in certain kinds of indirect lending, and related questions. (RQ-542). Request from Mr. Jerry R. Hoodenpyle, Rohne, Hoodenpyle, Lobert, Myers and Scott, P.C., 1323 West Pioneer Parkway-Spur 303, Arlington, concerning whether the Arlington Chamber of Commerce and the Arlington Economic Development Foundation are subject to the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a. (RQ-543). Request from Mr. W. Dickinson Yale, Jr., Coats, Rose, Yale, Holm, Ryman and Lee, 800 First City Tower, 1001 Fannin, Houston, concerning whether handwritten notes taken by individual board members of a county authority during a meeting of the authority constitute information subject to the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a. (RQ-544). Request from Mr. Daniel S. Ouellette, Chairman, The Texas State University System, 333 Guadalupe, Box 3810, Austin, concerning whether non- resident scholarship students are eligible for resident tuition rates under certain circumstances. (RQ-545). Request from Mr. Kenneth H. Ashworth, Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, concerning whether and how an independent school district may withdraw from participation in a junior college district. (RQ-546). Request from Mr. G. Chadwick Weaver, Assistant City Attorney, City of Midland, 300 North Loraine, Room 320, P.O. Box 1152, Midland concerning whether there is an "informer's privilege" under Texas Open Records Act, Texas Civil Statutes, Article 6252-17a. (RQ-547). Request from Honorable John A. Sickel, Van Zandt County Criminal District Attorney, 202 North Capitol Street, Canton, concerning whether the Local Government Code, sec.140.003, requires a specialized local entity to deposit its funds in the county's bank account or permits the specialized local entity to deposit its funds in its own bank account in the county's depository bank, and related questions. (RQ-548). Request from Honorable Mike Driscoll, Harris County Attorney, 1001 Preston, Suite 634, Houston, concerning fees for issuing and serving a writ of income withholding. (RQ-549). Request from Mr. Charles Karakashian, Jr., Assistant General Counsel, Texas Department of Public Safety, 5805 North Lamar Boulevard, Box 4087, Austin, concerning availability of unsolved murder investigation file under the Texas Open Records Act, sec.3(a)(8). (RQ-550). Request from Ms. Gretchen Kuehn Bohnert, Assistant City Attorney of Houston, P.O. Box 1562, Houston, concerning availability under the Texas Open Records Act, sec.3(a)(6), of drafts of proposed legislation relating to certain local hotel facilities and related documents held by the city. (RQ-551). Request from Honorable Mike Driscoll, Harris County Attorney, 1001 Preston, Suite 634, Houston, concerning whether copyrighted software documentation acquired by a hospital district pursuant to a licensing agreement is excepted from public disclosure by the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a, sec.3(a)(4) and sec.3(a)(10). TRD-9324841