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-93-47 (RQ-280). Request from Mike Driscoll, Harris County Attorney, Houston, concerning procedures for the sale of county real property acquired by Harris County for road purposes but no longer needed for road purposes. Summary of Opinion. Under the facts presented, Harris County's sale of a tract of land acquired but never used for a road purposes is governed by sec.31-E(1) of the Harris County Road Law. Such sale is not subject to sec.263.001 and sec.263.002 of the Local Government Code, which require the commissioners court to sell real property at a public auction with notice to the public, subject to certain exceptions. Nor is the sale subject to sec.263. 007 of the Local Government Code, authorizing counties to sell and lease property by a sealed bid procedure, or to sec.272.001 of the Local Government Code, authorizing political subdivisions to sell land by a sealed bid procedure. The terms "abutting or adjoining landowners" in sec.31- E(1) of the Harris County Road Law mean landowners whose property touches the unneeded right-of-way that the county wishes to sell. The commissioners court has discretion to adopt a reasonable procedure to sell the unneeded right-of-way to "abutting or adjoining" landowners pursuant to sec.31-E(1) of the Harris County Road Law. TRD-9327338 LO-93-48 (ID-18188). Request from Betty Denton, Member, Texas House of Representatives, Austin, concerning regulations governing state funding of retirement programs provided for junior college faculty members. Summary of Opinion. If provisions allowing a different rate of state contributions to the Teacher Retirement System and the Optional Retirement System were challenged as violating the equal protection clause of the fourteenth amendment of the United States Constitution, a court would probably use the rational basis test to determine the validity of those provisions. TRD-9327337 LO-93-49 (RQ-531). Request from David Aken, San Patricio County Attorney, San Partricio County Courthouse, Sinton, concerning authority of the San Patricio County Commissioners Court to take certain actions in winding up the Taft Hospital District. Summary of Opinion. The San Patricio County Commissioners Court, in winding up the Taft Hospital District, is not required to delay declaring the hospital district dissolved until the statute of limitations has run on unknown claims against the hospital district. The commissioners court is not authorized to transfer the assets of the hospital district to another governmental agency. The term "current year" in sec.17(h) of the enabling act, which provides for the distribution of the proceeds of the liquidated assets of the hospital district, means the last year in which taxes were levied. Section 17(h) prohibits making the distribution to taxpayers who have failed to pay taxes, but requires that it be made to all taxpayers who have paid taxes prior to the date of distribution, even taxpayers who have paid only part of their tax liability. It is the responsibility of the commissioners court to make the distribution. Interest earned on assets of the hospital district must be disposed of with the hospital district's other remaining assets. The commissioners court is authorized to liquidate the hospital district's accounts receivable and delinquent taxes by selling them for due compensation, but may not forgive them. The commissioners court should not distribute the proceeds until all the accounts receivable and delinquent taxes are sold or have been collected. The commissioners court is not authorized to recoup any of its expenses in winding up the hospital district. TRD-9327336 LO-93-50 (ID-16818). Request from C. Thomas Camp, Executive Director, Texas State Board of Dental Examiners, Austin, concerning clarification of Attorney General Opinion DM-136(1992). Summary of Opinion. The American Dental Association (ADA) is a "health professional association" as that term is used in sec.85.204(b)(4) of the Health and Safety Code. The fact that the ADA has issued guidelines that "specifically call for state dental boards to review panels," has no bearing on the conclusion in Attorney General Opinion DM-136 (1992) that the board is not authorized to establish an expert review panel. Attorney General Opinion DM-136 does not address whether an expert review panel established in conformance with Subchapter I of Chapter 85 of the Health and Safety Code would be prohibited from releasing information to the board for disciplinary purposes, or whether "infection control" rules generally applicable to all dental health care workers exceed the board's authority. TRD-9327335 LO-93-53 (ID-19950). Request from Fred Toler, Executive Director, Texas Commission on Law Enforcement Officer Standards and Education, Austin, concerning clarification and reconsideration of Attorney General Opinion DM-210 (1993). Summary of Opinion. Attorney General Opinion DM-210 (1993) construed sec.415.058 of the Government Code to Provide that an individual who has been convicted of a felony is qualified to be licensed as a peace officer or county jailer if that person subsequently has proven, in a court of law, his or her innocence. The completion of a probationary term, in and of itself, does not prove a defendant's innocence. Thus, sec.415.058 does not provide that a person who has successfully completed his or her probationary term but who has not subsequently proven his or her innocence is qualified to hold a license as a peace officer or county jailer. TRD-9327334 LO-93-54 (ID-20119). Request from Albert G. Valadez, District Attorney, Fort Stockton, concerning whether a sheriff may also serve as a volunteer fireman. Summary of Opinion. Nothing in Texas law prevents a sheriff from also serving as a member of a volunteer fire department. TRD-9327333 LO-93-55 (RQ-472). Request from Marcos Hernandez, Jr., Criminal District Attorney, Hays County Courthouse, San Marcos, concerning whether the Greater San Marcos Chamber of Commerce, the Greater San Marcos Economic Development Council, and the San Marcos Convention and Visitors Bureau are governmental bodies subject to the Texas Open Meetings Act, Texas Civil Statutes, Article 6252-17. Summary of Opinion. Neither the Greater San Marcos Chamber of Commerce, the Greater San Marcos Economic Development Council, nor the San Marcos Convention and Visitors Bureau are governmental bodies subject to the Texas Open Meetings Act, Texas Civil Statutes, Article 6252-17. TRD-9327332 LO-93-56 (ID-19594). Request from Joe F. Grubbs, Ellis County and District Attorney, Ellis County Courthouse, Waxahachie, concerning whether a municipality generally must comply with Subchapter C of Chapter 395 (sec.sec.395. 041-395.058) of the Local Government Code before enacting or imposing a water tap fee to pay for the installation of a water line to serve new development. Summary of Opinion. A general-law, home-rule, or special-law municipality generally must comply with Subchapter C of Chapter 395 (sec.sec.395. 041-395.058) of the Local Government Code before enacting or imposing a water tap fee to pay for the installation of a water line to serve new development. TRD-9327331 LO-93-57 (ID-19816). Request from James D. Ross, Midland County Auditor, Midland, concerning whether a commissioners court may award additional compensation to an employee for services already rendered. Summary of Opinion. The Texas Constitution, Article III, sec.53, prohibits the grant of supplemental income for contractual employees after commencement of their contracts. However, this prohibition does not preclude a commissioners court from approving the payment of back wages to which an employee was automatically entitled to receive. TRD-9327330 Open Records Decisions ORD-615 (RQ-496). Request from Ray Farabee, Vice Chancellor and General Counsel, The University of Texas System, Austin, concerning whether the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a, sec.3(a)(11) , exempts from public disclosure correspondencefrom 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. Summary of Opinion. Under the court's decision in Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408 (Tex App.-Austin 1992, no writ), section 3(a)(11) of the Texas Open Records Act must be interpreted in accordance with the settled construction of exemption 5 of the federal Freedom of Information Act, 5 United States Code, sec.552(b)(5), as of the time the Open Records Act was enacted. Consequently, sec.3(a)(11) excepts from required public disclosure only those internal agency memoranda consisting of advice, recommendations, and opinions that pertain to the policymaking functions of the governmental body at issue. Because the correspondence between university officials at issue here relates solely to an internal personnel matter involving a particular individual, and does not implicate the policymaking functions of the university system, it must be disclosed. TRD-9327339 Opinions DM-227 (RQ-202). Request from Kenneth H. Ashworth, Commissioner, Texas Higher Education Coordinating Board, Austin, concerning whether a member of a governmental body subject to the Open Meetings Act, Texas Civil Statutes, Article 6252-17, may review the tape of a closed meeting in which the member participated. Summary of Opinion. Neither the Open Meetings Act, Texas Civil Statutes, Article 6252-17, nor the Open Records Act, Texas Civil Statutes, Article 6252-17a, precludes a governmental body from releasing to a member of the governmental body the certified agenda or tape recording of a closed meeting in which the member participated. A governmental body may implement a procedure for providing access to the certified agenda by a member of the governmental body, and should do so in an open meeting. TRD-9327348 DM-228 (RQ-204). Request from Tracey Bright, Ector County Attorney, County Courthouse, Odessa, concerning whether a county commissioner may raise an issue for discussion after the commissioners court has taken final action on it and related questions. Summary of Opinion. The commissioners court may continue to discuss an issue in a subsequent meeting even though it has previously taken final action on it, provided the topic of discussion has been properly noticed. Authority to prepare the agenda for a meeting is vested in the commissioners court as a whole, and not in the county judge. An individual commissioner may place items of his choosing on the agenda. The commissioners court may adopt reasonable rules consistent with relevant statutes and constitutional provisions to govern its meetings. If the court wishes its meetings to be governed by the provisions of a treatise that are consistent with law, it must vote to formally adopt those provisions as its controlling authority. TRD-9327347 DM-229 (RQ-522). Request from Debra Danburg, Chair, Committee on Elections, Texas House of Representatives, Austin, concerning whether a proposed City of Houston ordinance, which would require that condoms be available for sale in "business premises upon which alcoholic beverages are sold for on-premises consumption," is preempted by state law. Summary of Opinion. A proposed City of Houston ordinance, which would require "business premises upon which alcoholic beverages are sold for on-premises consumption" to make condoms available for sale, would impose "stricter standards on premises or businesses required to have a license or permit...than are imposed on similar premises or businesses that are not required to have such a license or permit," contrary to subsection (a) of section 109.57 of the Alcoholic Beverage Code, and would therefore be preempted by state law. TRD-9327346 DM-230 (RQ-512). Request from Mike Driscoll, Harris County Attorney, Houston, concerning whether the Code of Criminal Procedure, Article 45.54, permits a justice of the peace to dismiss a complaint against a defendant who has failed to successfully complete a driving safety course. Summary of Opinion. Article 45.54 of the Code of Criminal Procedure does not permit a justice of the peace to dismiss a complaint against a defendant who has failed to successfully complete a driving safety course. TRD-9327345 DM-231 (RQ-408). Request from Fred S. Brinkley, Jr., R.Ph., Executive Director/Secretary, Texas State Board of Pharmacy, Austin, concerning whether a quorum of a licensing board attending a licensee disciplinary hearing conducted by the State Office of Administrative Hearings may make findings of fact, conclusions of law, and vote on discipline without receiving from the State Office of Administrative Hearings a proposal for decision. TRD-9327344 DM-232 (RQ-519). Request from Roland Saul, Criminal District Attorney, Deaf Smith County, Hereford, concerning whether the City of Hereford is authorized to convey a city park to the Deaf Smith County Hospital District. Summary of Opinion. In order to convey a city park to the Deaf Smith County Hospital District, the City of Hereford need not adhere to the procedures set forth in the Local Government Code, sec.253.001, the Local Government Code, sec.272.001, however, prohibits the conveyance of the land to the hospital district for less than fair market value. In addition, Chapter 26 of the Parks and Wildlife Code may apply to the proposed conveyance. TRD-9327343 DM-233 (RQ-504). Request from Jack Herrington, District and County Attorney, Clarksville, concerning whether the Texas Department of Criminal Justice may operate a work program facility that produces goods and services that are marketed for profit or exempted under the Federal Private Industry Enhancement Program and related question. Summary of Opinion. Section 1761(a) of Title 18, United States Code, excepts from the federal prohibition against the transportation in interstate commerce of prison-made goods those goods inmates or prisoners manufactured in a prison industries program that the Texas Department of Criminal Justice operates pursuant to Chapter 497, Subchapter A of the Government Code. Chapter 497, Subchapter C of the Government Code does not authorize the TDCJ to own and operate a work program facility; such facilities may be owned only by a municipality or county and operated pursuant to a contract between the pardons and paroles division of the TDCJ and the municipality or county in which the work program facility is located. TRD-9327342 DM-234 (RQ-516). Request from David H. Cain, Chair, Committee on Transportation, Texas House of Representatives, Austin, concerning construction of recent amendments to the Civil Practice and Remedies Code, sec.106.001(c)(2), regarding a municipality's program to increase participation by minority business enterprises in public contract awards and related questions. Summary of Opinion. To the extent a conflict exists between two amendments to the Civil Practice and Remedies Code, sec.106.001(c)(2), enacted by the 72nd Legislature, Acts 1991, 72nd Legislature, Chapter 597, sec.56, at 2148 and Acts 1991, 72nd Legislature, Chapter 665, sec.1, at 2423, the latter provision prevails. The term "in-house audit" as used in subsection (c)(2) of sec.106.001 of the Civil Practice and Remedies Code means an audit performed by a municipality itself. Subsection (c)(2) does not limit a municipality to establishing a percentage goal for contracts awarded to minority business enterprises only for public construction contracts. It permits a municipality to set different goals for different categories of contracts. Subsection (c)(2) does not authorize a municipality to take into account minority business enterprises which are not located in the municipality in establishing the goal. Subsection (c)(4) of the Civil Practice and Remedies Code does not create an exemption from competitive bidding requirements. It does, however, authorize municipalities to refuse to accept bids from prospective bidders that fail to "meet uniform standards designed to assure a reasonable degree of participation by minority business enterprises." TRD-9327341 DM-235 (RQ-528). Request from Luis V. Saenz, Cameron County District Attorney, Cameron County Courthouse, Brownsville, concerning whether a delinquent tax penalty adopted by the Cameron County Commissioners Court under the Tax Code, sec.33.07, applies to delinquent taxes subject to installment agreements entered into under the Tax Code, sec.33.02, prior to July 1 of the year in which the taxes became delinquent. Summary of Opinion. A delinquent tax penalty adopted under sec.33.07 of the Tax Code does not apply to delinquent taxes subject to installment agreements entered into under the Tax Code, sec.33.02, prior to July 1 of the year in which the taxes became delinquent. TRD-9327340 Requests for Opinions (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). (RQ-552). Request from Gary W. Smith, City Attorney, Legal Department, P.O. Box 779, Galveston, concerning whether certain social security numbers are excepted from public disclosure under the Open Records Act, Texas Civil Statutes, Article 6252-17a, sec.3(a)(1), in conjunction with 42 United States Code, sec.405(c)(2)(B)(vii)(I). (RQ-553). Request from Honorable Gonzalo Barrientos, Chair, Senate Committee on Nominations, Texas State Senate, P.O. Box 12068, Austin, concerning authority of a municipality to contract with a municipal utility district for funding and construction of wastewater facilities, and related questions. (RQ-554). Request from Honorable Ken Armbrister, Chair, Committee on Intergovernmental Relations, Texas State Senate, P.O. Box 12068, Austin, concerning whether attorneys may advertise and provide bail bonds for persons who are not already their clients. (RQ-555). Request from Neal S. Manne, Member, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, concerning whether the Alcoholic Beverage Code, sec.5.05, prohibits a member of the Alcoholic Beverage Commission from investing in a mutual fund that may own securities having some connection to an "alcoholic beverage business." (RQ-556). Request from Honorable David Cain, Chair, House Committee on Transportation, Texas House of Representatives, P.O. Box 2910, Austin, concerning scope of a city's authority to regulate pawnshops, and related questions. (RQ-557). Request from E. T. Gibson, City Manager of Gonzales, P. O. Drawer 547, Gonzales, concerning whether a city's failure to meet the 10-day deadline for requesting an open records decision under the Texas Open Records Act, sec.7(a), waives any protection provided to the information by sec.3(a)(7) (attorney- client privilege). (RQ-558). Request from Merrill L. Hartman, Chair, Court Reporters Certification Board, P.O. Box 13131, Austin, concerning time at which a deposition becomes a public record. (RQ-559). Request from Honorable David Motley, Kerr County Attorney, Kerr County Courthouse, 700 East Main Street, Kerrville, concerning fees authorized by Chapter 71, Family Code, regarding application for and issuance of protective orders in cases of family violence. (RQ-560). Request from Honorable James Warren Smith, Jr., Frio County Attorney, Frio County Courthouse, Pearsall, concerning whether hair length and dress codes may be imposed on adult and juvenile probationers. (RQ-561). Request from Sandra C. Joseph, Open Records Request/Disclosure Officer, Comptroller of Public Accounts, P.O. Box 13528, Austin, concerning whether names of taxpayers are confidential under sec.sec.111. 006, 151.027, and 171.026 of the Tax Code, and related questions; reconsideration of Attorney General Opinion H-223 (1974). (RQ-562). Request from John H. Specht, c/o Mr. Michael J. Tomsu, Vinson and Elkins, 816 Congress Avenue, Floor 17, Austin, concerning availability under the Texas Open Records Act, sec.3(a)(3), certain information resulting from a rate case when the hearings examiner has denied a request from discovery of information. (RQ-563). Request from Honorable O. H. "Ike" Harris, Chair, Senate Committee on State Affairs, Texas State Senate, P.O. Box 12068, Austin, concerning whether a teacher termination hearing held pursuant to Education Code, sec.13.112, must be public if so requested by the teacher, when the hearing will involve students' allegations of sexual harassment by the teacher. (RQ-564). Request from Honorable Sandy S. Gately, 52nd Judicial District Attorney, P.O. Box 919, Gatesville, concerning authority of a game warden to establish roadblocks and conduct searches there, and related questions. (RQ-565). Request from S. E. Seely, El Paso County Auditor, Room 406, County Courthouse Building, 500 East San Antonio Street, El Paso, concerning disposition of bail bond funds by a county. (RQ-566). Request from Honorable Libby Linebarger, Chair, House Committee on Public Education, Texas House of Representatives, P.O. Box 2910, Austin, concerning whether the spouse of a director of a state conservation district may serve on the city council of a municipality whose geographical boundaries overlap those of the conservation district. (RQ-567). Request from David Kemp, Assistant County Attorney, Potter County, 303 Courthouse, Amarillo, concerning availability under the Texas Open Records Act of a police "mug shot" of a person currently serving time in the criminal justice system for that offense. (RQ-569). Request from Honorable John D. Whitlow, Criminal District Attorney, Calhoun County, P.O. Box 1001, Port Lavaca, concerning authority of a statewide retirement system to award additional benefits to its annuitants. (RQ-570). Request from Honorable John Vance, Dallas County District Attorney, Frank Crowley Courts Building, 133 North Industrial Boulevard-LB 19, Dallas, concerning whether a probated sentence constitutes a "final conviction" under the Penal Code, sec.46.05, which prohibits, under certain circumstances, the possession of a firearm by a convicted felon. (RQ-571). Request from Honorable Bill Ratliff, Chair, Committee on Education, Texas State Senate, P.O. Box 12068, Austin, concerning construction of Senate Bill 1342, Acts 1993, 73rd Legislature, which prohibits a school district from contracting with a business entity in which a trustee or his spouse has a "significant interest." (RQ-572). Request from Honorable Charles D. Johnson, County Attorney, Dimmit County Courthouse, Carrizo Springs, concerning whether the county auditor oath of office provision, the Local Government Code, sec.84. 007(b), prevails over Chapter 171 of the Local Government Code. (RQ-573). Request from Honorable Travis S. Ware, Criminal District Attorney, Lubbock County, P.O. Box 10536, Lubbock, concerning validity of residence addresses given by signers of a petition for a local option liquor election where the city, stat, and zip code were omitted. (RQ-574). Request from Honorable Bill Turner, District Attorney, Brazos County, 300 East 26th Street, Suite 310, Brazos County Courthouse, Bryan, concerning whether a municipality may give "local preference" in awarding a contract under Texas Civil Statutes, Article 664-4, the Professional Services Procurement Act. (RQ-575). Request from Honorable Chris A. Wyatt, Coke County Attorney, P.O. Box 529, Robert Lee, concerning law enforcement authority of agents of a water district who are not peace officers. (RQ-576). Request from Charles Karakashian, Jr., Assistant General Counsel, Texas Department of Public Safety, 5805 North Lamar Boulevard, Box 4087, Austin, concerning whether notes and evaluations prepared before an employee promotional board are "test items" within the meaning of the Texas Open Records Act, sec.3(a)(22). TRD-9327329