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-93-59 (ID#-20331). Request from John Whitmire, Chairman, Committee on Criminal Justice, Texas State Senate, Austin, concerning whether a salaried municipal police officer may serve simultaneously as a salaried municipal judge in a different city. (ID# 20331). Summary of Opinion. A police officer employed by a municipality is not as a matter of law prohibited from serving as a municipal judge in a different city, either within the same county or in another county. TRD-9329290 LO-93-60 (ID#-19756). Request from Michael J. Guarino, Criminal District Attorney, Galveston County, Galveston, concerning whether the College of the Mainland is required to pay an impact fee assessed by the Galveston Drainage District Number Two under Chapter 395 of the Local Government Code. (ID#-19756). Summary of Opinion. The Local Government Code, sec.395.022, does not give the College of the Mainland the choice to pay or not pay an impact fee imposed by the Galveston Drainage District Number Two. The Local Government Code, sec.395.016(e), authorizes the district to collect the impact fee when the College of the Mainland expansion uses the district's storm sewer system. TRD-9329291 LO-93-61 (ID#-16558). Request from Talmadge Heflin, House of Representatives, Austin, concerning whether the word emancipation is used in the Family Code and whether an unemancipated minor may register a car in her name. (ID#-16558). Summary of Opinion. The word emancipation is not used in the Family Code. Rather, Chapter 31 of the code provides for a formal court proceeding for the removal of disabilities of minority. The effect of a removal of disabilities for general purposes is to make the minor an adult in the eyes of the law, with capacity to contract. Parental emancipation of a minor, or the other hand, does not remove the minor's contractural incapacity. Emancipation does, however, shield from the parents' creditors' claims any property acquired thereafter by the minor. TRD-9329292 LO-93-62 (ID#-20391). Request from Keith Oakley, Chair, Committee on Public Safety, Texas House of Representatives, Austin, concerning whether individuals employed by a sheriff pursuant to the Local Government Code, sec.85. 005, to ensure the safekeeping of prisoners are "county law enforcement officials" for purposes of the Texas Constitution, Article III, sec.52e, and related question. (ID#-20391). Summary of Opinion. A jailer or guard employed by a sheriff under the Local Government Code, sec.85.005, is a "county law enforcement official" for purposes of Article III, sec.52e, of the Texas Constitution. The mandatory salary payments required under this constitutional provision may not be reduced to account for any federal tax consequences applicable to a particular individual. TRD-9329293 LO-93-63 (RQ-554). Request from Ken Armbrister, Chair, Committee on Intergovernmental Relations, Texas State Senate, Austin, concerning whether lawyers can execute bail bonds or act as sureties on such bonds for persons who are not their clients. (RQ-554). Summary of Opinion. In a county that has a county bail bond board, a Texas lawyer may execute or act as a surety on a bail bond for a person who is not his or her client in the same matter only if the lawyer is licensed as a bail bondsman under Texas Civil Statutes, Article 2372p-3. TRD-9329294 LO-93-64 (ID#-20936). Request from Allen Hightower, Chair, Committee on Corrections, Texas House of Representatives, Austin, concerning whether the Student Service Fee Advisory Committee of Sam Houston State University is subject to the Open Meetings Act. (ID#-20936). Summary of Opinion. The Student Service Fee Advisory Committee of Sam Houston State University is not subject to the Open Meetings Act because it does not have supervision or control over the public business it conducts; the committee merely submits recommendations for final approval by the Board of Regents. TRD-9329295 LO-93-65 (ID#-16194). Request from Andy J. McMullen, District Attorney, 220th Judicial District, Hamilton, concerning when, if ever, an application for a place on a party primary ballot, filed with the party's county chairman, becomes a "governmental record" for purposes of the Penal Code, sec.37.01. (ID#-16194). Summary of Opinion. An application for a place on a party primary ballot for a public office, filed with the party's county chairman, may be deemed to have become a "governmental record" for purposes of the definition of that term in the Penal Code, sec.37.01(1)(B), as "anything required by law to be kept by others for information of government," at the time it was executed. TRD-9329296 LO-93-66 (ID#-20035). Request from Libby Linebarger, Chair, Public Education Committee, Texas House of Representatives, Austin, concerning whether motions adopted by the Board of Trustees of the Employees Retirement System of Texas were subject to the rule- making and notice provisions of the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. (ID#-20035). Summary of Opinion. Because certain motions adopted by the Employees Retirement System of Texas appear to have been supplanted by ERS rules, see Employee Retirement System (17 TexReg 7495) (1992), adopted (18 TexReg 1289) (1993) (to be codified at 34 TAC Chapter 83), and because recent legislation repealed the Insurance Code, Article 3.50-2, sec.3A, see Acts 1993, 73rd Legislature, Chapter 791, sec.56(3) (effective September 1, 1993), the question whether the motions were rules subject to the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a, is moot. TRD-9329297 LO-93-67 (RQ-584). Request from Jack W. Garison, Executive Director, Texas Department of Licensing and Regulation, Austin, concerning whether sec.11(a) of the Boxing and Wrestling Act, Texas Civil Statutes, Article 8501-1, authorizes the Texas Department of Licensing and Regulation to collect a 3.0% gross receipts tax on proceeds the promoter obtains from the sale of television rights. Summary of Opinion. Section 11(a) of the Boxing and Wrestling Act, Texas Civil Statutes, Article 8501-1, does not authorize the Texas Department of Licensing and Regulation to collect a 3.0% gross receipts tax on proceeds the person conducting the boxing match obtains from the sale of the right to televise the match. TRD-9329298 LO-93-68 (ID#-18456). Request from Carlos A. Pereda, Jr., Maverick County Auditor, Eagle Pass, concerning whether a county commissioner who has been removed from office for a felony conviction that is overturned on appeal is entitled to receive the cash equivalent of premiums for health insurance covering the commissioner that the county would have paid if it had not terminated the commissioner's insurance while his case was pending and the amount of past contributions the county has made on his behalf to his retirement plan. Summary of Opinion. A county commissioner who has been removed from office for a felony conviction that is overturned on appeal is not entitled to compensation for health- insurance premiums that would have been paid had his insurance not been terminated. Because the commissioner withdrew all of the accumulated contributions credited to his individual account in the employees saving fund after being removed from office, the Government Code does not support the commissioner's claim of entitlement to any matching contributions that the county did make or should have made to the County and District Retirement System for his benefit. The question of whether a county commissioner who has been removed from office for a felony conviction that is overturned on appeal is entitled to receive compensation for health-care costs that would not have been incurred if his health insurance had not been terminated or the amount of past contributions the county has made on his behalf to his retirement plan involves issues of fact and therefore is beyond the scope of the opinion process. TRD-9329299 LO-93-69 (ID#-20337). Request from Homer R. Goehrs, M.D., Executive Director, Texas State Board of Medical Examiners, Austin, concerning access of members of the Texas State Board of Medical Examiners to the agency's personnel and investigative files. Summary of Opinion. A member of the Texas Board of Medical Examiners (the board) has an inherent right of access to agency personnel and investigative files. A majority of the board by rule may not restrict a member's right of access to these records absent express statutory authority to do so. The board is not precluded, however, from providing board members with a legal opinion that explains the risks inherent in their examination of investigative records. TRD-9329300 LO-93-70 (RQ-581). Request from Libby Linebarger, Chair, Public Education Committee, Texas House of Representatives, Austin, concerning applicability of doctrines of dual office holding and incompatibility of office to members of the board of directors of the Edwards Aquifer Authority. Summary of Opinion. Because sec.1.09(f) of the Act creating the Edwards Aquifer Authority, Acts 1993, 73rd Legislature, Chapter 626, provides that a member of the EAA board of directors receives no compensation for service on the board, the constitutional prohibition against dual office holding does not preclude the member from holding, in addition to the position on the EAA board, a "civil office of emolument." The governing body of an entity that is authorized to make an appointment to the board of directors of the EAA may not appoint one of its own members to that position. An appointed member of the EAA board may not be employed by the EAA in any other capacity. Whether membership on the EAA board is inconsistent or in conflict with any other office or employment requires the determination of facts that have not been presented to us and that, in any event, could not be addressed in the opinion process. TRD-9329301 LO-93-71 (ID#-21786). Request from Jack Herrington, District and County Attorney, Red River County Courthouse, Clarksville, concerning clarification of Attorney General Opinion DM-233 (1993). Summary of Opinion. Attorney General Opinion DM-233 (1993) is clarified to reflect our understanding that the United States Department of Justice has interpreted sec.1761(a) of Title 18, United States Code, to exempt from the prohibition against the transportation in interstate commerce of prison-made goods only those goods, wares, or merchandise made by convicts or prisoners who are participating in a nonfederal prison work pilot project certified under subsection (c). Title 18, sec.1761 of the United States Code does not, however, apply to goods manufactured within the prison industries program of the Texas Department of Criminal Justice because such goods are transported only within the State of Texas. Furthermore, because goods manufactured within the TDCJ's prison industries program are transported only within the State of Texas, the prison industries program cannot be certified under sec.1761(c) of Title 18, United States Code. TRD-9329302 LO-93-72 (ID#-18775). Request from Mike Driscoll, Harris County Attorney, Houston, concerning whether a member of the state militia is exempt by virtue of the Government Code, sec.431.083, from payment of the optional county motor vehicle registration fee found in Texas Civil Statutes, Article 6675a-9a. Summary of Opinion. The exemption from any "road or street tax" granted in the Government Code, sec.431.083, to officers and enlisted persons complying with their military duties in the state military forces does not apply to the optional county motor vehicle registration fee provided for in Texas Civil Statutes, Article 6675a-9a. TRD-9329303 LO-93-73 (RQ-574). Request from Bill Turner, Brazos County District Attorney, Brazos County Courthouse, Bryan, concerning whether a home-rule city may give a preference to a local engineering firm in awarding a contract for professional engineering services. Summary of Opinion. The Professional Services Procurement Act, Texas Civil Statutes, Article 664-4, prohibits a home-rule city from giving a preference to a local engineering firm in awarding a contract for professional engineering services. TRD-9329304 LO-93-74 (RQ-379). Request from David R. Smith, M.D., Commissioner, Texas Department of Health, Austin, concerning whether, pursuant to the Health and Safety Code, sec.161.032, the records and proceedings of the Committee on Maternal and Child Health, a committee of the Texas Medical Association, are confidential and exempt from discovery, even under court subpoena, and related questions. Summary of Opinion. Because the opinion process cannot be used to overrule or construe a court order, we decline to consider whether, under the Health and Safety Code, sec.161.032 and the Medical Practices Act, sec.5.06(j), Texas Civil Statutes, Article 4495b, the records and proceedings of the Texas Medical Association's Committee on Maternal and Child Health are subject to court subpoena. TRD-9329305 from Stephen H. Smith, District Attorney, 119th Judicial District of Texas, Tom Green County Courthouse, San Angelo, concerning whether a person who presents forged proof of automobile liability insurance in a proceeding under Texas Civil Statutes, Article 6701h, may be prosecuted under the Penal Code, sec.37.09(a). Summary of Opinion. A person who produces in court forged proof of automobile liability insurance in a proceeding under Texas Civil Statutes, Article 6701h, may not be prosecuted under the Penal Code, sec.37.09(a). Such a person may be prosecuted under Texas Civil Statutes, Article 6701h, sec.32(b). TRD-9329306 LO-93-76 (ID#-20341). Request from Senfronia Thompson, Chair, Committee on Judicial Affairs, Texas House of Representatives, Austin, concerning whether the Family Code, sec.sec.51.14-51.16, require the Department of Public Safety to destroy or seal records of crimes committed by juveniles prior to 1975, and related question. Summary of Opinion. The Department of Public Safety is authorized to maintain and disseminate information relating to juvenile offenses which came into its possession prior to the enactment of Chapter 51 of the Family Code in 1973. Section 51.16 of the Family Code does not require the department to seal or destroy juvenile records. TRD-9329307 LO-93-77 (ID#-16369). Request from Jack W. Garison, Commissioner, Texas Department of Licensing and Regulation, Austin, concerning construction of "newspaper" exception to Texas Civil Statutes, Article 5221a-7. Summary of Opinion. the mere fact that a business enterprise includes among its activities the publication of a "newspaper of general circulation or other publication" does not exempt it generally from regulation under Texas Civil Statutes, Article 5221a-7. TRD-9329308 LO-93-78 (ID#-20909). Request from Bill Turner, Brazos County District Attorney, Brazos County Courthouse, concerning whether a county clerk may collect a records management and preservation fee on a document filed in an adverse probate action. Summary of Opinion. A clerk of a county court must impose and charge a records management and preservation fee of $5.00 upon the filing of a document that initiates an adverse probate action. The clerk may not impose a records management and preservation fee on documents filed during the pendency of the adverse probate action. The total records management and preservation that fee that the clerk of a county court must charge upon the filing of an adverse probate action is $5.00; the clerk may not assess a fee of $5.00 per page. TRD-9329309 LO-93-79 (ID#-16575). Request from Mike Driscoll, Harris County Attorney, Houston, concerning the establishment of a "wildlife hotline" in Harris County and related question. Summary of Opinion. A county is authorized to engage in the care, treatment and protection of wildlife at a county park which is unrelated to the operation of a zoo. Furthermore, a county may contract with a private entity to operate a "wildlife hotline" in a county park. TRD-9329310 LO-93-80 (ID#-18978 and ID#-18979). Request from Marvin J. Titzman, Executive Director, Texas Surplus Property Agency, San Antonio, concerning reconsideration of Attorney General Opinions JM- 417 (1985) and JM-497 (1986). Summary of Opinion. The statutes that required the result of Attorney General Opinion JM-417 (1985) have not changed since that opinion was issued, leaving the opinion valid. The Texas Surplus Property Agency was included in the 1992-1993 General Appropriations Act and was thus made subject to the general rider in that act governing state agency workers' compensation payments. The change in the law changes the result of Attorney General Opinion JM-497 (1986). TRD-9329311 LO-93-81 (ID#-18361). Request from Charles D. Travis, Executive Director, Employees Retirement System of Texas, Austin, concerning whether, under particular circumstances, a member of the Judicial Retirement System Plan One is entitled to receive the 10% annuity increase described in sec.834. 102(b) of the Government Code. Summary of Opinion. The Texas Constitution, Article V, sec.1-a(6)(C) , makes a retired judge sitting by assignment a judicial officer only for disciplinary purposes; it does not make a retired judge sitting by assignment a judicial officer for purposes of the Government Code, sec.834.102(b). Accordingly, the addition of the Texas Constitution, Article V, sec.1-a(6)(C), does not affect this office's conclusion in Attorney General Opinion H-1149 (1978), which declared that the 10% annuity increase the Government Code, sec.834.102(b), provides is unavailable to judges who retire from special assignment. Thus, a former judge who is a member of the Judicial Retirement System of Texas Plan One is ineligible to receive the 10% annuity increase described in sec.834.102(b) if the effective date of the member's retirement is one year or less from the date the member left a special assignment. TRD-9329312 LO-93-82 (ID#-22032). Request from John T. Montford, Chair, Finance Committee, Texas State Senate, Austin, concerning whether the attorney general may delegate the function of contracting with "eligible volunteer advocate programs" under the Family Code, sec.34.602, to the "statewide organization" selected by the attorney general for overall administration of the program pursuant to the Family Code, sec.34.603. Summary of Opinion. The Office of the Attorney General, as the successor agency to the Office of Court Administration for volunteer advocate programs for abused or neglected children, may contract with one "statewide organization" both to administer the overall program and to subcontract with various "eligible volunteer advocate programs." In accordance therewith, the "statewide organization" is eligible to receive up to 12% of funds appropriated for the overall program. TRD-9329313 Open Records Decisions ORD-616 (RQ-567). Request from Sonya Letson, County Attorney, Potter County, Amarillo, concerning availability under the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a, of a police "mug shot" taken in connection with a single identifiable arrest. Summary of Opinion. A "mug shot" taken in connection with an arrest for which the arrestee was subsequently convicted that does not relate to an active criminal investigation is not protected from public disclosure under the Texas Open Records Act, Texas Civil Statutes, Article 6252-17a, sec.3(a)(1) or sec.3(a)(8). TRD-99329255 ORD-617 (RQ-20). Request from William D. Gooch, Director and Librarian, Texas State Library, State Archives and Library Building, concerning Open Records procedures applicable to state agency records stored in Records Management Division records center. Summary of Opinion. The director and librarian of the Texas State Library is not the officer for public records with respect to records of a state agency held in the Records Management Division as part of that agency's records management program. Open records requests are properly made to the originating agency, rather than to the state library. TRD-9329256 ORD-618 (RQ-537). Request from Charles Karakashian, Jr., Assistant General Counsel, Texas Department of Public Safety, Austin, concerning whether Texas Civil Statutes, Article 21(j)(3), Article 6687b, in conjunction with sec.552.101 of the Government Code, prohibits the Texas Department of Public Safety from disclosing traffic conviction information contained within individual driver's license files. Summary of Opinion. A request to the Department of Public Safety (the department) for a list of individuals, including name, address, age, sex, and race, who were ticketed for traffic violations in specific cities is no longer available as the result of the enactment of Texas Civil Statutes, Article 6687b, sec.21(j)(3). That section specifically governs this request for information because it requires the department to create "a class-type listing from the basic driver's license record file." Section 21(j)(3) provides that the department is not authorized to provide such a "class-type listing." Thus, the statute effectively precludes access to this information although it is not deemed confidential by law. TRD-9329257 ORD-619 (RQ-458). Request from Susan M. Cory, General Counsel, Texas Workers' Compensation Commission, Austin, concerning whether the Labor Code, sec.402.083, makes confidential information regarding an employer's violations of the Texas Workers' Compensation Act. Summary of Opinion. The Texas Workers' Compensation Act, sec.402. 083(a), Labor Code makes confidential only information in or derived from a claim file that explicitly or implicitly discloses the identity of the employee filing the workers' compensation claim. Accordingly, information in or derived from a claim file that reveals the identity of an employer alleged to have violated the Texas Workers' Compensation Act and the nature of the violation may not generally be withheld pursuant to the Government Code, sec.552.101. Whether information explicitly or implicitly discloses the identity of an employee must be determined on a case-by-case basis. TRD-9329258 Opinions DM-237 (RQ-485). Request from Gonzalo Barrientos, Chairman, Committee on Nominations, Texas State Senate, Austin, concerning validity of a state licensing fee assessed on certified public accountants who are employed by the federal government. (RQ- 485). Summary of Opinion. The $200 fee increase mandated by the Public Accountancy Act of 1991 is not facially unconstitutional. TRD-9329259 DM-238 (RQ-211). Request from Burton F. Raiford, Interim Commissioner, Texas Department of Human Services, Austin, concerning whether Chapter 106 of the Human Resources Code requires a facility that submits the name of an employee for a criminal conviction check to terminate the employee if the check reveals convictions of certain offenses. (RQ-211). Summary of Opinion. Pursuant to the Human Resources Code, sec.106. 008(a), a facility that voluntarily obtains a criminal conviction check of an employee "licensed under other law" is required to terminate the employee in the event the check reveals a conviction of an offense listed under sec.106. 003(b). TRD-9329260 DM-239 (RQ-382). Request from David R. Smith, M.D., Commissioner of Health, Texas Department of Health, Austin, concerning whether students are "employees" for the purposes of the Texas Hazard Communication Act of the Health and Safety Code, sec.sec.502.001-502.016, which require employers to furnish "employees" with education, training, and information regarding hazardous chemicals at their work places. Summary of Opinion. Students are not "employees" for the purposes of the Texas Hazard Communication Act, Texas Health and Safety Code, sec.sec.502. 001-502.016. Therefore, the act is not applicable to students in their capacity as students, except for the requirements of sec.502.004(e)(5) which requires that material safety data sheets must be maintained by the laboratory and made accessible to students. TRD-9329261 DM-240 (RQ-571). Request from William R. Ratliff, Chair, Education Committee, Texas State Senate, Austin, concerning construction of Senate Bill 1342, Acts 1993, 73d Legislature, Chapter 964, which prohibits a school district from contracting with a business entity in which a trustee or his spouse has a "significant interest". Summary of Opinion. Although the legislature, in enacting the Education Code, sec.23.201, did not specifically define the boundaries of the term "significant interest," it clearly intended thereby to proscribe self-dealing. Whether a particular set of circumstances are included within the meaning of "significant interest" requires the resolution of factual issues not appropriate to the opinion process. TRD-9329262 DM-93-241 (RQ-471). Request from Arnold W. Oliver, P.E., Executive Director, Texas Department of Transportation, Austin, and James E. (Jim) Nugent, Commissioner, Railroad Commission of Texas, Austin, concerning whether truckers hauling materials on and onto Texas Department of Transportation construction sites are required to be covered by workers' compensation insurance. (RQ-471). Summary of Opinion. Truckers hauling materials onto Texas Department of Transportation construction sites are required, under Texas Civil Statutes, Article 8308-3.23, to be covered by workers' compensation insurance. TRD-9329265 DM-242 (RQ-530). Request from Tracey Bright, County Attorney, Ector County Courthouse, Odessa, concerning whether an independent school district may, without violating the competitive bidding statutes, "act as its own general contractor" in letting bids for renovation and remodeling projects. (RQ-530). Summary of Opinion. Neither the Education Code, sec.21.901, nor the Local Government Code, sec.271.024, which apply to competitive bidding situations, apply to an independent school district that desires to perform certain work using its own employees. Accordingly, an independent school district may, without violating the Education Code, sec.21.901, and the Local Government Code, sec.271.024, "act as its own general contractor" in letting bids for renovation and remodeling projects. TRD-9329267 DM-243 (RQ-540). Request from O. H. "Ike" Harris, Chair, Committee on State Affairs, Texas State Senate, Austin, concerning whether a person who provides "common workers" to "third party users" under Texas Civil Statutes, Article 5221a-10, is an employer for purposes of providing workers' compensation and unemployment insurance. Summary of Opinion. Since September 1, 1991, a person who has provided common workers to third party users has been the "employer" of those common workers under Texas Civil Statutes, Article 5221a-10, regardless whether he or she obtained a license as required by the act. Such a person has been responsible for providing workers' compensation and unemployment insurance from September 1, 1991, to the present, to the extent required of employers by other law. TRD-9329268 DM-244 (RQ-536). Request from Tom Craddick, Chair, Ways and Means Committee, Texas House of Representatives, Austin, concerning whether there is a conflict of interest where a person serves simultaneously as a county commissioner and a manager of a corporation with which a community center created by that county has entered into a contract. Summary of Opinion. There is no conflict of interest where a person serves simultaneously as a county commissioner and a manager of a corporation with which a community center created by that county has entered into a contract. TRD-9329269 DM-245 (RQ-236). Request from Nancy F. Braswell, Smith County Auditor, Smith County Courthouse, Tyler, concerning whether defendants in criminal cases may be required to reimburse a county for the cost of employing interpreters, and related questions. Summary of Opinion. The Code of Criminal Procedure, Article 38.30, requires interpreters in criminal cases to be paid from county funds. A judge of a county court-at-law may not assess interpreters' fees either as costs or require payment as a condition of probation. TRD-9329281 DM-246 (RQ-378). Request from Luis V. Saenz, Cameron County District Attorney, Brownsville, concerning whether the County Purchasing Act, sec.sec.262.021-262.035 of the Local Government Code, applies to purchases made with funds generated by forfeitures under Chapter 59 of the Code of Criminal Procedure. Summary of Opinion. The County Purchasing Act (the act), sec.sec.262. 021-262.035 of the Local Government Code, applies to purchases made out of the special fund in the county treasury for the benefit of the office of the attorney representing the state as provided by the Code of Criminal Procedure, Article 59.06. The commissioners court has a ministerial duty to initiate the competitive bidding process upon receipt of a request from the prosecutor or law enforcement agency and may not refuse all bids received for the purpose of preventing an expenditure out of the special fund. Letter Opinions Numbers 88-112 and 89-30 should be disregarded to the extent that they would suggest a contrary conclusion. TRD-9329282 DM-247 (RQ-469). Request from Wiley L. Cheatham, District Attorney, 24th Judicial District, Cuero, concerning whether the provisions of the Code of Criminal Procedure, Article 59.06(c), directing that certain forfeited property be deposited in a "special fund in the county treasury," require that such funds be deposited with the county treasurer for placement in the county depository, and related questions. Summary of Opinion. We reaffirm the holding of Attorney General Opinion DM-162 (1992) that the special fund created for the attorney representing the state by the Code of Criminal Procedure, Article 59.06(c)(1), must be deposited with the county treasurer for placement in the county depository. Article 59.06 is an exception to the requirement of the Local Government Code, sec.113.041 that disbursements be made by the county treasurer, the requirement of sec.113.042 of the same code that all payment instruments be endorsed by the county treasurer, sec.113.043's requirement that all checks and warrants be countersigned by the county auditor, sec.113.064's requirement that all payments be approved by the county auditor, and sec.140.003's requirement that "the county...disburse...the funds on behalf of the specialized local entity." Section 140.003 requires that the special forfeiture fund of a "specialized local entity" having jurisdiction in more than one county be kept in the "responsible county" designated by the district judges of those counties. The county auditor is required to comply with the Local Government Code, sec.112.005 and sec.112.007, in regard to forfeiture-fund transactions of county law enforcement agencies and county attorneys. The county auditor also is required to comply with sec.140.003, which incorporates sec.112.005 and sec.112.007, in regard to forfeiture-fund transactions of district attorneys and criminal district attorneys. Therefore, county law enforcement agencies and county, district, and criminal district attorneys may not keep exclusive records of their forfeiture-fund expenditures. The forfeiture funds collected from all the counties in a multicounty judicial district by the district attorney or criminal district attorney must be kept in the one county designated by the district judges in that district as responsible for managing that specialized local entity's funds. In a multicounty judicial district, before expending forfeiture funds to increase the salary of an employee, a district attorney or criminal district attorney must obtain the approval of all the counties that budget the salary of that employee. The commissioners courts of all the counties of a multicounty judicial district must conduct, separately or jointly, an annual audit of the forfeiture fund of the district attorney or criminal district attorney of that district. The county auditor of the responsible county in a multicounty district (as provided in the Local Government Code, sec.140.003 is required, and is the only county auditor that is authorized, to keep records of a district attorney's or criminal district attorney's forfeiture-fund transactions under the Local Government Code, sec.sec.112.005, 112.007, and 140. 003. In multicounty districts, the county auditors of the counties other than the responsible county do not have audit authority over the accounts of the district attorney or criminal district attorney under the Local Government Code, sec.115.0035; only the county auditor of the responsible county has such audit authority. When a peace officer seizes property pursuant to the Code of Criminal Procedure, Article 59.03, the employer of that peace officer is responsible for the safeguarding of that property and is obligated to reimburse the peace officer for reasonable expenses incurred in securing the property as long as the property remains in custody. TRD-9329283 DM-248 (RQ-532). Request from Fred Hill, Chair, Committee on Urban Affairs, Texas House of Representatives, Austin, concerning whether, under Chapter 143 of the Local Government Code, a police officer who has resigned his commission may rescind his resignation and be reinstated, and related questions. Summary of Opinion. Under Chapter 143 of the Local Government Code, once a police officer's resignation from a civil service position becomes effective by proper acceptance, the resignation may not be withdrawn even with the consent of the person who accepted the resignation. Therefore, a police officer in such circumstances may not be reinstated to his position because such an action is tantamount to a withdrawal of the resignation. Chapter 143 requires a police officer seeking reappointment after a voluntary and effective resignation from a police department to be treated as an applicant for a beginning position. Therefore, such an officer may be appointed and eventually promoted only by the methods applicable to all applicants for beginning positions, as provided in Subchapter B of Chapter 143, Local Government Code, sec.sec.143.021-143.038, and, to the extent applicable, Subchapter G of Chapter 143. Local Government Code, sec. sec.143.101-143.134. The DeSoto Civil Service Commission has jurisdiction to investigate the matter of the purported reinstatement of an officer who has voluntarily and effectively resigned. A police officer who was not appointed to his commission in accordance with Chapter 143 is not entitled to civil service status. Under Chapter 143 of the Local Government Code the police chief has the authority to remove a person who unlawfully holds a police officer position, and the civil service commission has only appellate jurisdiction to remove such a person, while under Chapter 66 of the Civil Practice and Remedies Code the attorney general or the district or county attorney is authorized to initiate a quo warranto proceeding to oust the person. Another source of authority to discharge the subject officer perhaps exists in a city charter provision authorizing the city council or the city's chief executive to discharge employees. TRD-9329284 DM-249 (RQ-544). Request from Daniel S. Ouellette, Chair, Texas State University System, Austin, concerning whether, under certain circumstances, a nonresident scholarship recipient is eligible for resident tuition rates under the Education Code, sec.54.064, and related questions. Summary of Opinion. A nonresident scholarship recipient is ineligible for resident tuition under the Education Code, sec.54.064(a), if the scholarship does not comply with the criteria that the Texas Higher Education Coordinating Board has developed to determine whether a scholarship is a competitive academic scholarship, unless the criteria exceed or are inconsistent with sec.54.064(a). The board's promulgation of sec.21.31 of Title 19, Texas Administrative Code, which provides that "[a] competitive academic scholarship that qualifies the holder [for resident tuition rates] shall be awarded for the purpose of encouraging academic excellence in the academic program in which the student is enrolled," does not exceed the board's authority under the Education, Code, sec.54.064(a), nor is it inconsistent with the Education Code, sec.54.064(a). Furthermore, we cannot conclude that sec.21. 31 of Title 19 of the Texas Administrative Code is invalid as a matter of law based on the fact that the board, in its order finally adopting the rule, cited inappropriate statutes as authorizing the board to promulgate the rule. TRD-9329285 DM-250 (RQ-86). Request from Mike Driscoll, Harris County Attorney, Houston, concerning questions relating to service of process in justice courts under the Texas Rules of Civil Procedure. Summary of Opinion. Pursuant to rule 536 of the Texas Rules of Civil Procedure, the clerk of a justice court must serve citation by mail or publication if asked to do so. Rule 536 of the Texas Rules of Civil Procedure permits any sheriff, constable or any person authorized by law or any person authorized by court order who is at least eighteen years old to serve process in justice court cases by registered or certified mail. Rule 116 authorizes service by publication in justice court cases by the sheriff or any constable of any county in Texas or the clerk of the court in which the case is pending. Pursuant to the Local Government Code, sec.118.121 and sec.118.122, the justice court clerk may charge a fee of $15 for service of process by registered or certified mail. The justice court clerk may collect advance payment for the expense of postage for serving process by mail unless another statute exempts the party from paying such costs. TRD-9329286 DM-251 (RQ-563). Request from O. H. "Ike" Harris, Chair, State Affairs, Texas State Senate, Austin, concerning whether a school district's board of trustees may conduct termination hearings of a teacher in executive session when a teacher specifically requests a public hearing. Summary of Opinion. A board of trustees of a school district may not convene in executive session for a termination hearing of a teacher when the teacher specifically requests that the hearing be open to the public pursuant to the Open Meetings Act, sec.2(g), and the Education Code, sec.13.112. TRD-9329287 DM-252 (RQ-495). Request from Warren Chisum, Chair, Committee on Environmental Regulation, Texas House of Representatives, Austin, concerning whether the Texas Constitution, Article IX, sec.1 authorizes the legislature to consolidate two existing counties. Summary of Opinion. The Texas Constitution, Article IX, sec.1, does not authorize the legislature to consolidate two existing counties. TRD-9329288 DM-253 (RQ-556). Request from David Cain, Chair, Committee on Transportation, Texas House of Representatives, Austin, concerning whether a home-rule city has authority to regulate outdoor displays and signs at pawn-shops, and related questions. Summary of Opinion. Articles 5069-51.17B(p) and 5069-51.17B(r) of the Pawnshop Act, Texas Civil Statutes, Article 5069-51.01 et seq., preempt any regulation by the City of Dallas of outdoor signs, displays, or storage at pawnshops, because these matters have been delegated to the Consumer Credit Commissioner by the legislature. However, the Pawnshop Act does not purport to exempt such establishments from laws of general application such as the Dallas city regulations concerning high weeds and landscaping. TRD-9329289 Requests for Opinions (RQ-577). Request from Herbert L. Prouty, General Counsel, El Paso Water Utilities Public Service Board, El Paso, concerning whether the ten-day requirement in the Open Records Act, sec.7, may be waived, and related questions. (RQ-578). Request from John T. Montford, Chair, Senate Finance Committee, Texas State Senate, Austin, and Peggy Rosson, Member, Texas State Senate, Austin, concerning authority of the Texas Higher Education Coordinating Board to construe the "financial need" requirements of House Bill 1356, Acts 1993, 73rd Legislature, which amends the Hazelwood Act, sec.54.203, Education Code. (RQ-579). Request from Roberto Gutierrez, Texas House of Representatives, Austin, concerning whether an unincorporated association insurance carrier is eligible to serve as a corporate surety pursuant to Texas Civil Statutes, Article 5160.A, reconsideration of Attorney General Opinion JM-923 (1988) in light of statutory amendments. (RQ-580). Request from David R. Smith, M.D., Commissioner, Texas Department of Health, Austin, concerning effect of House Bill 241, Acts 1993, 73rd Legislature, on the authority of the Texas Department of Health to regulate the process of recertification of EMS personnel. (RQ-581). Request from Libby Linebarger, Chair, Committee on Public Education, Texas House of Representatives, Austin, concerning constitutionality of Senate Bill 1477, Acts 1993, 73rd Legislature, which transfers all property held by the Edwards Underground Water District to the Edwards Aquifer Authority. (RQ-582). Request from Dick Durbin, Administrator, Texas Alcoholic Beverages Commission, Austin, concerning whether a holder of a permit to sell alcoholic beverages may possess a firearm for purposes of self-defense. (RQ-583). Request from Rick Perry, Commissioner, Texas Department of Agriculture, Austin, concerning whether there is any limitation on the amount of wine that may be sold directly to consumers by the holder of a winery permit who is operating under sec.27(d) of House Bill 1445, Acts 1993, 73rd Legislature. (RQ-584). Request from Jack W. Garison, Executive Director, Texas Department of Licensing and Regulation, Austin, concerning whether sec.11(a) of the Boxing and Wrestling Act, Texas Civil Statutes, Article 8501-1, authorize the Texas Department of Licensing and Regulation to collect a three percent gross receipts tax on proceeds the promoter obtains from the sale of television rights. (RQ-585). Request from Barry L. Macha, Criminal District Attorney, Wichita County Courthouse, Wichita Falls, concerning authority of the State Board of Education to withhold funding from a school district that is indebted to the Texas School for the Deaf and the Texas School for the Blind and Visually Impaired. (RQ-586). Request from Frank H. Bass, Jr., Montgomery County Attorney, Courthouse, Conroe, concerning whether a municipal utility district may divest itself of ownership and maintenance responsibility for storm sewer facilities. (RQ-587). Request from Office of the General Counsel, Texas Department of Criminal Justice, Austin, Attn: Elaine Martin, concerning whether certain "sensitive information" regarding prisoners is available to the public under the Open Records Act, Texas Civil Statutes, Article 6252-17a. (RQ-588). Request from Fred Hill, Chairman, Committee on Urban Affairs, Texas House of Representatives, Austin, concerning authority of the Texas Water Commission to require a municipality to obtain permission to regulate on-site sewage facilities. (RQ-589). Request from Ray Farabee, Office of the General Counsel, The University of Texas System, Austin, concerning whether a consultant's report concerning a university's overall faculty hiring and retention policies is excepted from public disclosure by the Open Records Act, Texas Civil Statutes, Article 6252-17a, sec.3(a)(11). (RQ-590). Request from Leonard W. Peck, Jr., Assistant General Counsel, Texas Department of Criminal Justice, Huntsville, concerning whether the Texas Department of Criminal Justice may deny a prisoner access to information on legitimate security grounds where the requested information would otherwise be available to the public under the Open Records Act. (RQ-591). Request from John Pouland, Executive Director, General Services Commission, Austin, concerning effect of House Bill 560, Acts 1993, 73rd Legislature, on determination of the "prevailing wage" for public work projects. (RQ-592). Request from Nathan B. Rheinlander, Comal County Attorney, New Braunfels, concerning whether House Bill 2087, Acts 1993, 73rd Legislature, authorizes a commissioners court to dispose of certain property by gift to a civic or charitable organization located in the county. (RQ-593). Request from Ray Farabee, The University of Texas System, Austin, concerning whether the M. D. Anderson Cancer Center Rotary House International is exempt from property taxes. (RQ-594). Request from Keith Oakley, Chair, Committee on Public Safety, Texas House of Representatives, Austin, concerning whether an election to repeal collective bargaining under Texas Civil Statutes, Article 5154c-1, may be held while a collective bargaining agreement is in effect. (RQ-595). Request from Warren Chisum, Chair, Committee on Environmental Regulation, Texas House of Representatives, Austin, concerning whether validity of two riders that require the implementation of a child welfare program by the Texas Department of Health, the Texas Department of Protective and Regulatory Services, and other state agencies. (RQ-596). Request from Alfred F. Hurley, Chancellor, University of North Texas, Denton, concerning what constitutes a "building or construction contract" under Texas Civil Statutes, Article 8308-3.23, for purposes of the requirement that certain companies which contract with the state, or a political subdivision thereof, must provide workers' compensation insurance for its employees. (RQ-597). Request from Warren Chisum, Chair, Committee on Environmental Regulation, Texas House of Representatives, P.O. Box 2910, Austin, concerning constitutionality under Article III, sec.52, of Senate Bill 826, which permits school districts to acquire school buildings by lease-purchase contracts paid with maintenance tax revenues. (RQ-598). Request from Patricia Ohlendorf, Vice Provost, University of Texas at Austin, Austin, concerning whether the home address and telephone number of a University of Texas student and employee must be disclosed as directory information or released from a University of Texas police report when the student/employee has elected to prohibit public access to the information pursuant to the Texas Open Records Act, sec.552.111 and sec.552.024. (RQ-599). Request from Joella R. McPherson, C.P.A., Randall County Auditor, Canyon, concerning whether authority of a county to regulate, as a "sexually oriented business," a nightclub that features topless or nude dancers. (RQ-600). Request from Charles D. Travis, Executive Director, Employees Retirement System of Texas, Austin, concerning responsibility for the 0.25% "incentive" payment on that portion of an annuitant's credit which is transferred from the Teachers Retirement System to the Employees Retirement System. (RQ-601). Request from Robert T. Jarvis, County Attorney of Grayson County, Sherman, concerning whether a school district may fund scholarships to its highest ranking graduates. (RQ-602). Request from Susan Spataro, Travis County Auditor, P.O. Box 1748, Austin, concerning whether unclaimed overpayments on property taxes escheat to the county or to the state after three years. TRD-9329254