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-93-83 (ID# 20116).
 Request from Mike Driscoll, Harris County Attorney, Houston, concerning whether 
a county must be reimbursed for the cost of audit services performed for a 
county department of education under Texas Civil Statutes, Article 2929g-1.
 Summary of Opinion.
The provisions of Texas Civil Statutes, Article 2929g-1 [Texas Education Code. 
Auxiliary Laws] that certain county auditors render auditing services to certain 
county departments of education would be unconstitutional if the expenses of the 
auditor's services were not reimbursed by the county department of education 
receiving the services.
TRD-9332295
LO-93-84 (ID# 19049).
 Warren Chisum, Chairman, Committee on Environmental Regulation, Texas House of 
Representatives, Austin concerning sharing of "co-management fees" between 
optometrists and ophthalmolgists.
Summary of Opinion.
An ophthalmologist does not violate sec.161.091 of the Health and Safety Code 
merely by co-managing a patient with an optometrist and thereby consenting to 
have Medicare pay a fee to the optometrist. To violate this provision, the 
ophthalmologist would also have to intentionally or knowingly offer to pay 
remuneration to "any person, firm, association of persons, partnership, or 
corporation for securing or soliciting patients or patronage."
TRD-9332296
LO-93-85 (ID# 19675).
 Request from Judith Zaffirini, Chair, Committee on Health and Human Services, 
Texas State Senate, Austin, concerning whether the practice of reflexology falls 
within the definition of "massage therapy"" in Texas Civil Statutes, Article 
4512k, and related questions.
Summary of Opinion.
Whether reflexology techniques constitute "massage therapy" as defined in Texas 
Civil Statutes, Article 4512k, is a question of fact and therefore is not an 
appropriate subject for an opinion from this office. The Advisory Council on 
Massage Therapy ("advisory council") does not have authority to promulgate a 
rule establishing that reflexology is "massage therapy." A determination by the 
advisory council that reflexology is "massage therapy" does not affect the 
duties of the Texas Department of Health to administer Article 4512k and 
investigate possible violations of that statute. A person convicted of 
practicing "massage therapy" without a registration must wait five years to be 
registered and must complete the educational and experiential requirements and 
pass the state examination in order to obtain a registration certificate. The 
Department of Health has discretion to refuse to register, for a period of no 
more than five years, an applicant who admits to, but has not been convicted of, 
practicing "massage therapy" without a registration in violation of Article 
4512k.
TRD-9332297
LO-93-86 (ID# 21028).
 Request from Stephen H. Smith, District Attorney, 119th Judicial District of 
Texas, San Angelo, concerning whether the filing, by a person or entity not 
authorized to conduct banking business, of an assumed name certificate for a 
purported bank violates Article 342-902 of the Texas Banking Code of 1943, Texas 
Civil Statutes, Article 342-101 to 342-1113.
Summary of Opinion.
The filing of an assumed name certificate that indicates only disjunctively that 
a person not authorized to conduct a banking business currently is conducting a 
banking business or intends to conduct such a business in the future does not 
violate Article 342-902 of the Banking Code as a representation to the public 
that one is conducting a banking business.
TRD-9332298
LO-93-87 (RQ-558).
Request from Merrill L. Hartman, Chair, Court Reporters Certification Board, 
Austin, concerning whether a court reporter is authorized to sell a copy of a 
deposition transcript to a company which operates a computerized database.
Summary of Opinion.
There is no statute or rule prohibiting or authorizing a shorthand reporter to 
sell a copy of a deposition transcript to a company which operates a 
computerized data base, or any person or entity other than the deponent, a party 
to the proceeding, or a party's attorney, without leave of court. This question 
would be more appropriately addressed by supreme court rule or by the court with 
jurisdiction over a particular case.
TRD-9332299
LO-93-88 (ID# 18550).
 Request from Janice M. Caldwell, Dr. P.H., Executive Director, Texas Department 
of Protective and Regulatory Services, Austin, concerning removal of criminal 
record subject to expunction order from agency files.
Summary of Opinion.
The provisions of Chapter 55 of the Code of Criminal Procedure, authorizing the 
expunction of certain arrest records, control over the provisions of the Open 
Records Act, Texas Civil Statutes, Article 6252-17a, to the extent of conflict. 
After entry of an expunction order, the release, dissemination, or use of the 
expunged records and files for any purpose is prohibited. On receipt of an 
expunction order, an official or agency named in the order must return all 
records and files subject to the order to the court, or, if removal is 
impracticable, obliterate all portions of the records or file that identify the 
petitioner. Since the Texas Department of Protective and Regulatory Services is 
not named in an expunction order applicable to an arrest record in its files, it 
is not required or authorized by Chapter 55 of the Code of Criminal Procedure to 
remove the arrest record from its files. It may, however, be able to arrange for 
its destruction pursuant to sec.441.035(e) of the Government Code.
TRD-9332300
LO-93-89 (ID# 20522).
 Request from Joe F. Grubbs, Ellis County and District Attorney, Ellis County 
Courthouse, Waxahachie, concerning authority of a district clerk to impose 
certain fees in a proceeding for the forfeiture of contraband.
 Summary of Opinion.
The district clerk lacks authority to require the county to pay costs of court.
TRD-9332301
LO-93-90 (ID# 19572).
 Request from Bryan Davis, County Attorney, Nacogdoches, concerning whether a 
county generally may incur debt by executing a vendor's lien note for the 
purchase of real property. Commissioners courts do not have a general power to 
purchase real property. Whether a county may purchase real property depends on 
whether the purchase falls within a power expressly conferred by law. Nor do 
commissioners courts have a general power to incur debt. Their power to incur 
debt may be granted expressly or, generally, by necessary implication from a 
grant of a power to do something that requires the creation of debt. The power 
to issue negotiable instruments that would deprive the county of a defense 
assertable against the original creditor cannot be implied by necessity.
TRD-9332302
LO-93-91 (ID# 21878).
 Request from J. Lynn Owens, Reeves County Auditor, Pecos, concerning whether, 
under sec.113.901 of the Local Government Code, a county auditor may refuse to 
issue a requisition if the county already has ordered or received the goods 
requisitioned and related question.
Summary of Opinion.
For purposes of sec.113.901 of the Local Government Code, a "purchase" is 
completed upon the transfer of title to the goods from the vendor to the buyer, 
in accordance with sec.2.401(b) of the Business and Commerce Code. Section 
113.901 does not authorize a county auditor to refuse to issue a requisition to 
any county officer upon request, even if the county officer already has 
purchased the supplies or materials. Pursuant to sec.113.901, a county auditor 
may refuse to approve an account for a purchase of supplies or materials if the 
vendor did not receive the original copy of the properly signed requisition 
before the county officer made the purchase.
TRD-9332303
LO-93-92 (RQ-591).
Request from John Pouland, Executive Director, General Services Commission, 
Austin, concerning effect of certain amendments to the Texas prevailing wage 
statute, Texas Civil Statutes, Article 5159a, and related questions.
Summary of Opinion.
 Nothing in the recent amendments to the Texas prevailing wage rate statute 
alters the reasoning or result of Attorney General Opinion DM-25 (1991). 
Generally, when choosing an area in which to perform a prevailing wage rate 
survey, a public body should choose the political subdivision most nearly 
corresponding to the location of the work. For the purpose of this statute, a 
council of governments is a political subdivision. The public body may not omit 
any classes of workers or rates for prevailing wages from its contracts. 
Agencies required or authorized by the statute to conduct prevailing wage 
surveys may contract with the General Services Commission for the commission to 
conduct such surveys.
TRD-9332304
LO-93-93 (RQ-601).
Request from Robert T. Jarvis, Grayson County Attorney, Grayson County Justice 
Center, Sherman, concerning whether an independent school district may award 
scholarships out of its general fund to its top graduates based solely on 
academic ranking.
 Summary of Opinion.
Prior to instituting a program to award scholarships from the general fund to 
graduates based on academic ranking, the board of trustees of an independent 
school district must determine in the first instance whether, under Article III, 
sec.52(a) of the Texas Constitution, such a program serves a public purpose, and 
whether the independent school district has placed sufficient controls on 
program to ensure that the public purpose is carried out. Likewise, pursuant to 
sec.20.48 of the Education Code, the board of trustees must determine, in the 
first instance, whether the awarding of such scholarships is "necessary in the 
conduct of the public schools." As this office stated in Attorney General 
Opinion JM-1265 (1990) at 4, "[t] he encouragement and motivation of students in 
academic achievement would seem to be an appropriate function of the public free 
schools." Thus, a school board might find the use of local school funds to 
provide college scholarships to be "necessary in the conduct of the public 
schools" for purposes of sec.20. 48 of the Education Code as well as structured 
to further the achievement of a legitimate public purpose.
TRD-9332305
LO-93-94 (RQ-548).
Request from Mike Driscoll, County Attorney, Harris County, Houston, concerning 
fees for issuing and "serving" a writ of income withholding for child support.
Summary of Opinion.
Under sec.14.45(h) of the Family Code, a district clerk may assess one fee not 
to exceed $15 for issuing and delivering a writ of income withholding. See Acts 
1993, 73rd Legislature, Chapter 417, sec.4 (effective September 1, 1993). The 
fee for issuing and delivering a writ of income withholdings is no different if 
the person seeking the writ is being assisted by the Harris County Domestic 
Relations Office.
TRD-9332306
LO-93-95 (RQ-560).
Request from James Warren Smith, Jr., County Attorney, Frio County, Pearsall, 
concerning whether a policy requiring certain probationers to conform to a dress 
and hair code is prohibited by either the Texas Constitution or the United 
States Constitution.
Summary of Opinion.
The determination whether a condition of probation such as a dress and hair code 
violates the right to free expression under the state or federal constitution 
depends upon whether the condition is primarily designed to meet the ends of 
rehabilitation and protection of the public and is reasonably related to such 
ends. Whether the condition satisfies these criteria will depend upon the facts 
of each individual case. Such a condition is not necessarily constitutional in 
each and every case.
TRD-9332307
LO-93-96 (ID# 21290).
 Request from Ronald Earle, Travis County District Attorney, Austin, concerning 
whether a district attorney may simultaneously hold a compensated teaching 
position with a state university.
Summary of Opinion.
A district attorney is not prohibited, either by Article XVI, sec.40, of the 
Texas Constitution, or by the common-law doctrine of incompatibility, from 
simultaneously holding a compensated teaching position with a state university.
TRD-9332308
LO-93-97 (RQ-422).
Request from David Counts, Chair, Natural Resource Committee, Texas House of 
Representatives, Austin, concerning whether a city may annex that portion of a 
municipal utility district lying within its extraterritorial jurisdiction, and 
related questions.
Summary of Opinion.
Section 43.075 of the Local Government Code permits but does not require that 
the governing bodies of a municipal utility district (MUD) consisting of two 
separate, noncontiguous areas of land in the extraterritorial jurisdiction of 
two municipalities, and a municipality seeking to annex one of those areas, may 
agree to a division and allocation of powers, duties, and functions of the 
district. In the absence of such an agreement, sec.43.075(g) of the Local 
Government Code provides that the city may not duplicate the MUD's services 
within the area previously served by the MUD. Section 43.075 does not require by 
its terms that the MUD cease to exist upon annexation. Double taxation by the 
MUD and the city is not constitutionally impermissible. In the event that 
annexation impairs the MUD's ability to issue bonds, sec.43.0715 of the Local 
Government Code would require the city to compensate landowners and developers 
in the MUD. Should the city refuse to pay such compensation, the proposed 
partial annexation could not go forward.
TRD-9332309
LO-93-98 (ID# 21823).
 Request from Richard J. Miller, Bell County Attorney, Belton, concerning 
whether Bell County is responsible for maintenance of a drainage ditch on   
private land reflected in a rural subdivision plat approved by the commissioners 
court, where the ditch never has been maintained by the county and where 
flooding from the ditch is not the result of drainage from, or improvements to, 
a county road.
Summary of Opinion.
Bell County is not responsible for maintenance of a drainage ditch on private 
land reflected in a rural subdivision plat approved by the commissioners court, 
where the ditch has not been dedicated to public use and never has been 
maintained by the county and where flooding from the ditch is not the result of 
drainage from, or improvements to, a county road.
TRD-9332310

Open Records Decision
(ORD-620) (RQ-354).
Request from Peter Potemkin, Executive Director, Texas Workers' Compensation 
Insurance Facility, Austin, concerning whether, under sec.552.101 or sec.552.110 
of the Open Records Act, the Texas Workers' Compensation Insurance Facility may 
withhold from required public disclosure the guidelines it uses to determine the 
percentage of the estimated premium it will require an applicant to pay as a 
deposit, and related questions.
Summary of Opinion.
Sections 552.101, 552.110, and 552.111 of the Open Records Act, Chapter 552 of 
the Government Code, Acts 1993, 73rd Legislature, Chapter 268, sec.1, sec.46 
(nonsubstantive codification of former Texas Civil Statutes, Article 6252-17a) 
do not authorize the Texas Workers' Compensation Insurance Facility to withhold 
from required public disclosure the guidelines the facility uses to determine 
the percentage of the estimated premium it will require an applicant for 
workers' compensation insurance to pay as a deposit.
TRD-9332294
   
Opinions
DM-254 (RQ-579).
Request from Gonzalo Barrientos, Chair, Committee on Nominations, Texas State 
Senate, Austin, concerning whether an unincorporated association insurance 
carrier is eligible to serve as a corporate surety pursuant to Texas Civil 
Statutes, Article 5160.A.
Summary of Opinion.
The conclusion in Attorney General Opinion JM-923 (1988) that "the legislature 
requires a corporate surety when public work is concerned" is affirmed. Thus, an 
unincorporated association insurance carrier is ineligible to serve as a 
corporate surety pursuant to Texas Civil Statutes, Article 5160.A.
TRD-9332311
DM-255 (RQ-393).
Request from Mary Webb, Chair, Texas Agricultural Finance Authority, Austin, 
concerning whether the Texas Agricultural Finance Authority may use bond 
proceeds from the Texas Agricultural Fund to reimburse the Department of 
Agriculture for administrative expenses incurred on behalf of the authority.
Summary of Opinion.
The Texas Agricultural Finance Authority may use bond proceeds from the Texas 
Agricultural Fund to reimburse the Department of Agriculture for administrative 
expenses incurred on behalf of the authority.
TRD-9332312
DM-256 (RQ-538).
Request from William R. Ratliff, Chair, Education Committee, Texas State Senate, 
Austin, concerning whether an independent school district may provide free 
office space and other items to a private, non-profit foundation.
Summary of Opinion.
The Education Code, sec.23.26, authorizes the board of trustees of an 
independent school district to accept donations and other gifts from a private 
foundation, and to supply the foundation with office space and the use of other 
school property, assuming a school purpose is served. The question whether 
Article III, sec.52(a) of the Texas Constitution prohibits the board from 
supplying the foundation  with office space and the use of other school property 
depends upon whether this would serve a public purpose, appropriate to the 
function of an independent school district; whether adequate consideration would 
flow to the public; and whether the board would maintain sufficient controls 
over the foundation's activities, to ensure that the public purpose is actually 
achieved. The Local Government Code, sec.171.009, permits the trustee of an 
independent school district to serve as a director of a private, non-profit 
corporation which does business with the school district, provided he or she 
receives no compensation or other remuneration for doing so. The determination 
whether the Education Code, sec.23.201, prohibits the board of trustees of an 
independent school district from entering into a contract with a business entity 
for which a trustee serves on its board of directors without compensation or any 
other remuneration requires the resolution of factual issues and is therefore 
beyond the purview of the opinion process.
TRD-9332313
DM-257 (RQ-547).
Request from John A. Sickel, Criminal District Attorney, Van Zandt County, 
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.
Summary of Opinion.
The Local Government Code, sec.140.003, in directing an adult probation office, 
as a "specialized local entity," to deposit the funds it receives "in the county 
treasury of the county in which the entity has jurisdiction," means that such 
funds must be deposited with the county treasurer for placement in the county 
depository. The phrase "the funds the entity receives," as used in sec.140.003, 
subsection (f), means all funds from any source (except for any specific fund 
regarding which there may be a provision of law to the contrary). Section 
140.003, subsection (f), incorporates the requirements of sec.111. 092 
(regarding county auditor's budgetary oversight of warrant process) and 
sec.113.043 (prohibiting payment on check or warrant not countersigned by county 
auditor) of the Local Government Code and makes them generally applicable to 
payments made by specialized local entities. Subsections (f) and (g) of 
sec.140.003 incorporate sec.112.001 or sec.112.002 (regarding the county 
auditor's authority to prescribe an accounting system) and sec.112.006 
(regarding the county auditor's authority to determine whether a proposed 
expenditure is for a proper purpose) of the Local Government Code and make them 
applicable to the management of the funds of specialized local entities. 
Subsections (f) and (g) generally require the county auditor to determine 
whether a proposed expenditure of a specialized local entity is for a legal 
purpose to the same extent that the auditor is similarly responsible with 
respect to county finances. Subsections (f) and (g) generally permit but do not 
require the county auditor to prescribe accounting procedures for a specialized 
local entity.
TRD-9332314
DM-258 (RQ-602).
Request from Susan A. Spataro, CPA, CMA, Travis County Auditor, Austin, 
concerning whether unclaimed overpayments on property taxes escheat to the state 
or do they belong to Travis County after three years.
Summary of Opinion.
In the absence of authority to the contrary, unclaimed overpayments on property 
taxes belong to the county once the three-year period of reclamation has lapsed 
under sec.31.11 of the Tax Code. The funds may be transferred into the county's 
general fund account pursuant to Article VIII, sec.9 of the Texas Constitution.
TRD-9332315
DM-259 (RQ-507, ID#
18811). Request from Jack W. Garison, Executive Director, Texas Department of 
Licensing and Regulation, Austin, concerning whether a member of an appraisal 
review board may appear before the board either in a receiver or a registered 
property tax consultant without violating conflict-of-interest laws and related 
questions.
Summary of Opinion.
Pursuant to sec.41.69 of the Tax Code, a member of an appraisal review board may 
not participate in the determination of a taxpayer protest before the appraisal 
review board in which the member, receiver of a tract of property in the 
appraisal district, represented a property owner because the member has, as a 
matter of law, a direct personal or pecuniary interest in the outcome of the 
protest. Similarly, sec.41.69 of the Tax Code precludes a member of an appraisal 
review board from participating in the determination of a taxpayer protest if 
the member performed property tax consulting services in the protest because the 
member therefore has a direct personal or pecuniary interest in the 
determination of the protest. Section 171.004(a) of the Local Government Code 
requires a member of an appraisal district board who has performed property tax 
consulting services in a taxpayer protest before the appraisal district board to 
disclose the nature and extent of the member's interest, but only if the member 
has a substantial interest in a business entity or real property involved in the 
matter. The determination of whether an appraisal district board member has such 
a substantial interest involves the resolution of facts; it is therefore outside 
the scope of the opinion process.
TRD-9332316
DM-260 (RQ-244).
Request from Ashley Smith, Chair, Committee on Higher Education, Texas House of 
Representatives, Austin, concerning whether an independent school district may 
use various assets to create an endowment fund.
Summary of Opinion.
The board of trustees of a school district may establish an endowment fund for 
educational purposes with money willed or donated for that purpose. The school 
board may not place the proceeds from the sale of land owned by the district in 
an endowment fund. This office will not issue an advisory opinion on whether a 
school district may allocate current local tax revenues to an endowment fund for 
the future support of the district's schools while the constitutionality of the 
school financing system remains the subject of litigation.
TRD-9332317
DM-261 (RQ-419).
Request from James R. Wilson, Director, Texas Department of Public Safety, 
Austin, concerning constitutionality of provisions of Texas Civil Statutes, 
Article 6701h,  sec.4A, pertaining to impoundment of out-of-state vehicles 
involved in accidents where proof of financial responsibility is not shown, and 
related questions.
Summary of Opinion.
Texas Civil Statutes, Article 6701h, sec.4A, providing for impoundment of 
vehicles not registered in Texas where such vehicles are involved in accidents 
and proof of financial responsibility is not shown, is not on its face violative 
of constitutional commerce and equal protection provisions. The Department of 
Public Safety must afford opportunity for hearings under the Administrative 
Procedure Act, former Texas Civil Statutes, Article 6252-13a, now codified at 
Title 10, Chapter 2001 of the Government Code, Acts 1993, 73rd Legislature, 
Chapter 268,  sec.1, in setting security amounts required to be submitted in 
order to obtain the release of impounded vehicles. Texas Civil Statutes, Article 
6701h, on its face requires security of at least $1,000 in such circumstances. 
Where a hearing on the amount of security to be required is sought, the 
department should be prepared to offer oral testimony in order to afford 
opportunity for cross-examination.
TRD-9332318
DM-262 (RQ-518).
Request from Mike Driscoll, Harris County Attorney, Houston, concerning whether 
a constable may, to collect delinquent child support payments, seize and sell 
personal property that sec.sec.42.001, 42. 002, and 42.0021 of the Property Code 
otherwise exempt from execution and seizure if the constable is acting pursuant 
to a writ of execution and related questions.
Summary of Opinion.
Pursuant to a writ of execution issued to collect child support arrearages, 
attorney fees, and interest, a constable may seize only that personal property 
of the obligor that sec. sec.42.001, 42.002, and 42.0021 of the Property Code do 
not exempt from execution. Rule 309 of the Texas Rules of Civil Procedure 
authorizes any holder of a child support lien to foreclose on the lien, 
regardless of whether the lien attached upon the filing of an abstract of 
judgment or a child support lien notice. On the other hand, sec.14.979(a) of the 
Family Code requires a claimant to foreclose on the child support lien only if 
the lien attached by virtue of the filing of a child support lien notice that 
was not based on a valid, final court judgment finding the obligor in arrears 
and determining the amount of the arrearage. Section 14.979(a) does not require 
a claimant to foreclose on a child support lien that is predicated upon the 
filing of an abstract of judgment or a child support lien notice based upon a 
valid, final court judgment. Thus, if, prior to the issuance of the writ of 
execution, the claimant obtained an abstract of judgment and filed it for record 
in the appropriate county clerk's office thereby creating a child support lien, 
the constable may seize all of a child support obligor's nonhomestead real 
property and all of the obligor's personal property. Likewise, if a claimant 
chooses to institute foreclosure proceedings upon a child support lien 
predicated upon the filing of an abstract of judgment, the constable may seize 
all of a child support obligor's nonhomestead real property and all of the 
obligor's personal property.
TRD-9332319
DM-263 (RQ-580). Request from David R. Smith, M.D., Commissioner, Texas 
Department of Health, Austin, concerning whether House Bill 241, Acts 1993, 73rd 
Legislature, Chapter 251, prohibits the Texas Department of Health from 
requiring an examination for recertification of emergency medical service 
personnel.
Summary of Opinion.
House Bill 241, Acts 1993, 73rd Legislature, Chapter 251, does not prohibit the 
Texas Department of Health from requiring an examination for recertification of 
emergency medical service personnel.
TRD-9332320
DM-264 (RQ-191).
Request from Bruce Isaacks, Criminal District Attorney, Denton County, Denton, 
concerning whether the Denton County Bail Bond Board is authorized to set a 
limit on the value amount of bonds which a corporate surety may provide, and 
related questions under Texas Civil Statutes, Article 2372p-3.
Summary of Opinion.
There is no limit on the value of the bonds a corporate bail bondsman may issue. 
An irrevocable letter of credit is the only security a corporation must provide 
when its application for a bail bondsman's license is tentatively approved by 
the county bail-bond board. In counties with populations of 250, 000 or more, 
the credit amount must be at least $50,000; in counties with populations of less 
than 250,000, the credit amount must be at least $10,000.  The sheriff cannot, 
however, insist on credit for an unlimited time; the sheriff must accept a 
letter of credit even though it has a time limit. County bail-bond boards lack 
the authority to impose different or additional requirements for obtaining a 
bail bondsman's license. Therefore, a county bail-bond board cannot question the 
appraisal value or obtain an independent appraisal of the real estate an 
applicant for a bail-bondsman's license intends to convey in trust to the board 
as security. In addition, a county bail-bond board cannot require that the real 
estate be located in that county. On the other hand, a board must require a 
renewal application to contain a current appraisal of the real estate from each 
taxing unit and an appraisal from a real estate appraiser who meets the 
qualifications set out in Texas Civil Statutes, Article 2372p-3, sec.6(f)(2).
TRD-9332321
DM-265 (RQ-569).
Request from John D. Whitlow, Criminal District Attorney, Calhoun County, Port 
Lavaca, concerning whether the annual distribution of extra interest by the 
Texas County and District Retirement System to annuitants violates Article III, 
sec.52 of the Texas Constitution.
Summary of Opinion.
The annual distribution of extra interest by the Texas County and District 
Retirement System to annuitants pursuant to the Government Code, 
sec.845.310(e)(2), does not violate Article III, sec.52 of the Texas 
Constitution.
TRD-9332322
DM-266 (RQ-321).
Request from Rick Perry, Commissioner, Texas Department of Agriculture, Austin, 
concerning construction of the provisions of sec.52.012 and sec.52.085 of the 
Agriculture Code regarding agricultural cooperative marketing association member 
voting rights.
Summary of Opinion.
The Agriculture Code, sec.52.085(a), limits each member of a non-citrus-related 
cooperative marketing association to one vote. A citrus-related cooperative 
marketing association may, pursuant to sec.52.085(b), provide for a member 
association to have more than one vote; if such an association does so, however, 
it must not pay dividends on stock or membership capital in excess of 8.0% a 
year, in accordance with sec.52.012(a)(2) of the Agriculture Code.
TRD-9332323
DM-267 (RQ-566).
Request from Libby Linebarger, Chair, Public Education Committee, Texas House of 
Representatives, Austin, concerning whether conflicts of interest exist that 
would disqualify a spouse from serving in elected office when both spouses hold 
elected positions in local governmental bodies with overlapping jurisdictional 
boundaries and one jurisdiction is responsible for a portion of the annual 
budget of the other governmental body, and related questions.
Summary of Opinion.
A city is not a "business entity" for purposes of Chapter 171 of the Local 
Government Code. The prohibition of Article XVI, sec.40 of the Texas 
Constitution against dual office holding does not apply to a person who is both 
a director of a state conservation district and a mere employee of a 
conservation and reclamation district.
TRD-9332324
DM-268 (RQ-592).
Request from Nathan B. Rheinlander, Comal County Attorney, New Braunfels, 
concerning whether House Bill 2087 violates Article III, sec.52 of the Texas 
Constitution.
Summary of Opinion.
House Bill 2087, which amends the Local Government Code, sec.263.152, to 
authorize a county commissioners court to donate to civic or charitable 
organizations salvage and surplus property that it has been unable to sell by 
competitive bid or auction, does not on its face violate Article III, sec.52 of 
the Texas Constitution. The donation of a particular item may run afoul of this 
constitutional prohibition if the property is of value to the county and it is 
not donated for a public purpose for adequate consideration.
TRD-9332325
DM-269 (RQ-479).
Request from Jose R. Rodriguez, El Paso County Attorney, El Paso, concerning 
term of office of directors of the El Paso County Water Control and Improvement 
District (Westway), and related questions.
Summary of Opinion.
The term of directors of the El Paso Water Control District (Westway) is two 
years. The district's board of directors should select a uniform election date 
under Chapter 41 of the Election Code for the district's director elections. The 
extent to which acts of improperly elected directors are nevertheless valid 
involves fact questions which cannot be resolved in the opinion process.
TRD-9332326
DM-270 (RQ-525).
Request from O. H. "Ike" Harris, Chair, Committee on State Affairs, Texas State 
Senate, Austin, regarding the number of vacation days to which police officers 
and fire fighters are entitled in a city with a population of more than 30,000.
Summary of Opinion.
A fire fighter and a police officer in a city of greater than 30,000 is entitled 
to the number of vacation days granted under either subsection (b) or subsection 
(c) of the Local Government Code, sec.142.0013, whichever is greater.
TRD-9332327
   
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 sec.7 of the Open Records Act may be waived, and related 
questions.
(RQ-578). Request from Honorable John T. Montford, Chair, Senate Finance 
Committee, Texas State Senate, Austin, and Honorable 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 Honorable 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 Honorable 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 3.0% gross receipts tax on 
proceeds the promoter obtains from the sale of television rights.
(RQ-585). Request from Honorable Barry L. Macha, Criminal District Attorney, 
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 Honorable Frank H. Bass, Jr., Montgomery County Attorney, 
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, concerning whether certain "sensitive information" 
regrading prisoners is available to the public under the Open Records Act, Texas 
Civil Statutes, Article 6252-17a.
(RQ-588). Request from Honorable Fred Hill, Chairman, Committee on Urban 
Affairs, Texas House of Representatives, Austin, concerning authority of the 
Texas Natural Resource Conservation 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 sec.3(a)(11) of the Open Records Act, Texas 
Civil Statutes, Article 6252-17a.
(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 on House Bill 560, Acts 1993, 73rd 
Legislature, on determination of the "prevailing wage" for public work projects.
(RQ-592). Request from Honorable 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, General Counsel, 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 Honorable 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 Honorable Warren Chisum, Chair, Committee on 
Environmental Regulation, Texas House of Representatives, Austin, concerning 
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 Honorable Warren Chisum, Chair, Committee on 
Environmental Regulation, Texas House of Representatives, 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 sec.552.111 and sec.552.024 of the Texas Open Records Act.
(RQ-599). Request from Joella R. McPherson, C.P.A., Randall County Auditor, 
Canyon, concerning 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 Honorable Robert T. Jarvis, County Attorney of
Grayson County, Sherman, concerning whether a school district
may fund scholarship to its highest ranking graduates.
(RQ-602). Request from Susan Spataro, Travis County Auditor, Austin, concerning 
whether unclaimed overpayments on property taxes escheat to the county or to the 
state after three years.
(RQ-603). Request from Nora Linares, Director, Texas Lottery Commission, Austin, 
concerning whether the Bingo Enabling Act, Texas Civil Statutes, Article 179d, 
requires a person to hold a commercial lessor's license if the person leases 
premises to an authorized organization licensed to conduct bingo.
(RQ-604). Request from Honorable Hugo Berlanga, Chair, Committee on Public 
Safety, Texas House of Representatives, Austin, concerning meaning of "honorable 
discharge" for purposes of college tuition exemption for veterans under 
sec.54.203 of the Education Code.
(RQ-605). Request from Honorable O. H. "Ike" Harris, Chair, Committee on State 
Affairs, Texas State Senate, Austin, concerning whether a public funds 
investment pool may purchase United States government securities by writing 
covered call contracts and covered put contracts.
(RQ-606). Request from Honorable John T. Montford, Chairman, Senate Finance
Committee, Texas State Senate, Austin, concerning whether a county is required 
to accept warrantless arrestees from a municipal policy department, and related 
questions.
(RQ-607). Request from Honorable Allen Place, Chairman, Committee on Criminal 
Jurisprudence, Texas House of Representatives, Austin, concerning whether a 
licensed peace officer may be employed to perform traffic control part-time on a 
construction site, and related questions.
(RQ-608). Request from Honorable David Counts, Chairman, Committee on Natural 
Resources, Texas House of Representatives, Austin, concerning authority of a 
municipal utility district to impose "standby charges".
(RQ-609). Request from Honorable Ken Armbrister, Chairman, Committee on 
Intergovernmental Relations, Texas State Senate, Austin, concerning whether 
certain lectronic, electromechanical, and mechanical contrivances are now 
excluded from the definition of "gambling device" under the Penal Code.
(RQ-610). Request from Honorable William R. Ratliff, Chairman, Education 
Committee, Texas State Senate, Austin, concerning whether a county school 
administration may retain a lobbyist pursuant to sec.21.939 of the Education 
Code.
(RQ-611). Request from David R. Smith, M.D., Commissioner, Texas Department of 
Health, Austin, concerning whether the Texas Board of Health is authorized under 
the Medical Radiologic Technologist Certification Act, Texas Civil Statutes, 
Article 4512m, to promulgate rules discontinuing general certification of 
medical radiologic technologists, and implementing a system of specialty 
certification in diagnostic radiography, nuclear medicine, and radiation 
therapy.
(RQ-612). Request from Ray Farabee, Office of the General Counsel, The 
University of Texas System, Austin, concerning whether the University of Texas 
System is empowered to limit the number of vendors offering benefits to eligible 
employees under the Optional Retirement System.
(RQ-613). Request from Honorable James M. Kuboviak, Brazos County Attorney, 
Brazos County Courthouse, Bryan, and Honorable Mike Driscoll, Harris County 
Attorney, Houston, concerning collection by county clerks of "security fee" 
authorized by Senate Bill 243, Acts 1993, 73rd Legislature, Chapter 818, at 
3261-62.
(RQ-614). Request from Honorable William R. Ratliff, Chairman, Senate Education 
Committee, Texas State Senate, Austin, concerning authority of a state licensing 
agency to require disclosure of social security numbers.
(RQ-615). Request from Herbert Carleston, Assistant Superintendent for Business, 
Pearland Independent School District, Pearland, concerning whether a school 
district must provide tax records to a requestor under the Texas Open Records 
Act in a specified form when doing so is less costly to the requestor.
(RQ-616). Request from Dennis R. Jones, M.S.W., M.B.A., Commissioner, Texas 
Department of Mental Health and Mental Retardation, Austin, concerning whether a 
community center established under the aegis of the Department of Mental Health 
and Mental Retardation may contract with a former member of its board of 
trustees.
(RQ-617). Request from David R. Smith, M.D., Commissioner, Texas Department of 
Health, Austin, concerning whether a licensed nursing facility providing 
comprehensive medical rehabilitation must also be licensed as a hospital under 
Chapter 241, Health and Safety Code.
(RQ-618). Request from Honorable John Vance, Dallas County District Attorney, 
Dallas, concerning whether the fees provided for in sec.51. 317 of the 
Government Code apply to the filing for a pre-indictment writ of habeus corpus.
(RQ-619). Request from Honorable Walt Sears, Jr., Franklin County Attorney, Mt. 
Vernon, concerning whether House Bill 859, Acts 1993, 73rd Legislature, Chapter 
473, which requires a public utility to maintain as confidential certain 
portions of its customer records under particular circumstances is applicable to 
the Franklin County Water District.
(RQ-620). Request from Catherine A. Ghiglieri, Commissioner, Texas Department of 
Banking, Austin, concerning authority of a state bank to sell insurance and 
annuities.
(RQ-621). Request from Honorable Wilhelmina Delco, Chair, General Investigating 
Committee, Texas House of Representatives, Austin, concerning whether the 
municipal hotel-motel tax may be used to provide access to disabled persons at 
historic sites, and related questions.
(RQ-622). Request from Michael E. Hines, Executive Director, Texas Commission on 
Fire Protection, Austin, concerning applicability of Senate Bill 383, Acts 1993, 
73rd Legislature, Chapter 398, at 1697-1700, to various advisory committees 
created to assist the Texas Commission on Fire Protection.
(RQ-623). Request from Honorable Rick Perry, Commissioner, Texas Department of 
Agriculture, Austin, concerning whether Texas Civil Statutes, Article 8613, 
which regulates the sale of motor vehicle fuel to disabled persons, is 
applicable to any vehicle that displays an appropriate "special device or 
disabled person identification card".
(RQ-624). Request from Honorable Sonya Letson, Potter County Attorney, Amarillo, 
concerning whether a county
is required to provide medical insurance and other benefits to district 
officers.
(RQ-625). Request from Jeannene Fox, Acting Administrator, Texas Alcoholic 
Beverage Commission, Austin, concerning whether, under sec.38(a) of the Bingo 
Enabling Act, Texas Civil Statutes, Article 179d, the Texas Alcoholic Beverage 
Commission (now the Texas Lottery Commission) may accept a written promise to 
pay required taxes in lieu of a bond guaranteed by a surety company, cash, an 
assignment of negotiable stocks and bonds, or other security "as the 
[commission] may deem sufficient to secure the payment of required taxes".
(RQ-626). Request from Honorable Roy C. Turcotte, Kenedy County Attorney, County 
Courthouse, Sarita, concerning jurisdiction for prosecution of an offense that 
occurs in another county, and related questions.
(RQ-627). Request from Jack W. Garison, Executive Director, Texas Department of 
Licensing and Regulation, Austin, concerning whether an arbitration agreement 
contravenes sec.18(a) of Article 5221f, the Manufactured Housing Standards Act, 
and related questions.
TRD-9332293