ATTORNEY GENERAL 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 may be 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. To request copies of opinions, phone (512) 462-0011. To inquire about pending requests for opinions, phone (512) 463-2110. Letter Opinions LO-95-001 (ID #27010). Request from Lyndon Olson, President Brazos River Authority, P.O. Box 7555, Waco, Texas 76714-7555 concerning whether an employee of a state university may be compensated for service on the board of directors of the Brazos River Authority. Summary of Opinion. A professor at a state-supported university is an employee of the state. Thus, pursuant to article XVI, section 40 of the Texas Constitution, he is not barred from serving as a member of the Board of Directors of the Brazos River Authority, a local governmental district within that provision. If he does serve, he may not receive the "fees of office" established as compensation for that position pursuant to sec.50.059 of the Water Code. TRD-9504331 LO-95-002 (ID #26895). Request from Honorable Joe F. Grubbs, County and District Attorney, Ellis County Courthouse, Waxahachie, Texas 75165-3759, concerning propriety of Ellis County Treasurer's making payments from the county treasury without prior approval by the commissioners court and related questions. Summary of Opinion. The Ellis County Treasurer may not properly make payments from the county treasury without prior approval by the commissioners court. If he does so, he is subject to personal liability for such payments if they are not subsequently ratified by the commissioners court. TRD-9504332 LO-95-003 (RQ-773). Request from Honorable Debra Danburg, Chair, Committee on Elections, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether the term "corporation" in sec.22(a) of the Veterinary Licensing Act, Texas Civil Statutes, Article 8890, refers to a nonprofit or municipal corporation. Summary of Opinion. The term "corporation" in section 22(a) of the Veterinary Licensing Act, Texas Civil Statutes, Article 8890, does not refer to a nonprofit corporation organized under the Texas Non-Profit Corporation Act, Texas Civil Statutes, Article 1396-1.01 to -11.01, or to a municipal corporation. TRD-9504333 LO-95-004 (ID #30789). Request from Janie D. Fields, Executive Director, Children's Trust Fund of Texas Council, 8929 Shoal Creek Boulevard, Suite 200, Austin, Texas 78757-6854, concerning whether the children's trust fund created pursuant to Chapter 74 of the Human Resources Code may be abolished under sec.403.094 of the Government Code, and related questions. Summary of Opinion. Under sec.403.094 of the Government Code, the dedicated revenue source for the children's trust fund set forth in sec.118.022 of the Local Government Code will cease to exist on August 31, 1995, unless the legislature takes certain action before that date. The children's trust fund, and the corpus of that fund as of August 31, 1995, are not subject to abolition under sec.403.094 and will continue to exist after that date. The children's trust fund is excepted from sec.403.095(b) of the Government Code by operation of subsection (b)(2). TRD-9504334 LO-95-005 (RQ-697). Request from DeAnn Friedholm, Interim Commissioner, Texas Health and Human Services, Commission, P.O. Box 13247, Austin, Texas 78711 concerning whether the Texas Health and Human Services Commission has statutory authority to pursue Medicaid estate recoveries in accordance with 42 U.S.C. section 1396p(b)(1). Summary of Opinion. The Texas Health and Human Services Commission does not have authority to pursue "Medicaid estate recoveries" in accordance with 42 U.S.C. sec.1396p(b)(1). Legislation that is consistent with 42 U.S.C. sec.1396p(b)(1) and regulations adopted under that provision must be in effect by July 1, 1995, if the commission is to comply with requirements of the federal Medicaid program. TRD-9504335 LO-95-006 (ID# 31742). Request from Honorable Keith Oakley, Chair, House Committee on Public Safety, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a public school district must obtain a payment bond on a public work contract for more than $25,000 that its insurer makes, under authority of the insurance contract between it and the insurer, with the prime contractor on a public work consisting of repairs to be performed on damaged school district property. Summary of Opinion. A public school district must obtain a payment bond on a public work contract for more than $25,000 that its insurer makes, under authority of the insurance contract between it and the insurer, with the prime contractor on a public work consisting of repairs to be performed on damaged school district property. TRD-9504336 LO-95-007 (ID #28637). Request from Honorable Bill Ratliff, Chair, Committee on Education, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning disposition of debts and assets in the dissolution of the Morris County Hospital District. Summary of Opinion. duty to provide indigent health care shifts back to the county upon dissolution of the Morris County Hospital District is when the district's board of directors, after the election to dissolve the district, orders the dissolution. Costs incurred by the county thereafter in providing care should not be considered the responsibility of the district. That the costs of the district's redistributing unused tax funds to taxpayers exceeds the amount of such funds does not in itself preclude such distribution, especially if the district retains other assets from which the costs could be paid. TRD-9504337 LO-95-008 (ID #29868). Request from Honorable Hugo Berlanga, Chair, Committee on Public Health, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning disposition of a municipal health authority's assets upon dissolution. Summary of Opinion. The authority of a municipal health authority, under Health and Safety Code, Chapter 262, to transfer assets upon dissolution "to the municipality or to another person" is circumscribed by the public purpose requirements of article III, section 52 of the Texas Constitution. Whether a given transfer is sufficiently related to the public purposes of an authority-the provision and operation of hospitals-would involve fact questions. TRD-9504338 LO-95-009 (ID #28385). Request from David R. Smith, M.D., Commissioner of Health, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199, concerning whether the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments may promulgate rules establishing criteria for the licensure of nonindividual persons to fit and dispense hearing instruments. Summary of Opinion. Title 71, Texas Civil Statutes, Chapter 10A, does not authorize the State Committee of Examiners in the Fitting and Dispensing of Hearing Instruments to establish criteria for the issuance to a nonindividual of a temporary training permit, apprentice permit, or license to fit and dispense hearing instruments. TRD-9504339 LO-95-010 (ID #25758). Request from Honorable Jose R. Rodriguez, El Paso County Attorney, 500 East San Antonio, Room 203, El Paso, Texas 79901, concerning scope of performance bond requirement for developer participation contracts under Chapter 212, Subchapter C, Local Government Code, and related questions. Summary of Opinion. Developer must execute a performance bond for the total cost of improvements to be constructed pursuant to a developer participation contract under Local Government Code, Chapter 212, Subchapter C. The provisions of former Texas Civil Statutes, Article 5160, now Government Code, Chapter 2253 which require a performance bond on public works contracts only where the latter are in excess of stated amounts, are inapplicable to the bond requirement under Chapter 212, Subchapter C. If a developer participation contract does not comply with the requirements of Chapter 212, Subchapter C, but calls for expenditures of municipal funds in excess of the amount stated in Local Government Code, Chapter 252, and is not within any of the listed exceptions to the chapters requirements, the contract must be let in compliance with the notice, bidding, and other requirements of Chapter 252. TRD-9504340 LO-95-011 (ID #25694). Request from Dr. James Corbin, Chair, Texas Antiquities Committee, P.O. Box 12276, Austin, Texas 78711-2276, concerning whether the Fort Bend Flood Control Water Supply Corporation is a political subdivision and whether its development actions are subject to the Texas Antiquities Code. Summary of Opinion. The Fort Bend Flood Control Water Supply Corporation, established under Texas Civil Statutes, Article 1434a, and incorporated under the Nonprofit Corporation Act, is not a "political subdivision" of the state within sec.191.092 of the Natural Resources Code. Land owned by the water supply corporation is not subject to the requirements of Natural Resources Code sec.191.093. TRD-9504341 LO-95-013 (ID #29417). Request from Honorable James D. Ross, Midland County Auditor, 200 West Wall, Midland, Texas 79701, concerning whether county funds may be used as "flash money" in a "drug sting" operation. Summary of Opinion. The expenditure of county funds for "flash money" in a "drug sting" operation is not unauthorized as a matter of law. TRD-9504342 LO-95-014 (ID #25651). Request from James A. Collins, Executive Director, Texas Department of Criminal Justice, P.O. Box 99, Huntsville, Texas 77342-0099, concerning whether the Texas Department of Criminal Justice ("TDCJ") may release certain information about inmates incarcerated in the Institutional Division of TDCJ to the Texas Council on Family Violence, Inc.. Summary of Opinion. The Texas Council on Family Violence, Inc., a nonprofit corporation, is not a state agency. The disclosure of confidential information by the Department of Criminal Justice to the TCFV would not be an authorized interagency sharing of data between state agencies. Senate Concurrent Resolution Number 26 of the Seventy-second Legislature does not establish the Texas Council on Family Violence, Inc., as an agent of the governor for the purpose of gathering confidential information. TRD-9504343 LO-95-015 (ID #26437). Request from Honorable John W. Berry, Karnes County Attorney, 101 North Panna Maria, Suite 10, Karnes City, Texas 78118, concerning effect of nepotism statute, Government Code, Chapter 573, when mayor's wife who furnished contractual services becomes part-time employee and then is offered full-time employment. Summary of Opinion. An individual who provided janitorial services to a city under agreement was continuously employed by the city for purposes of the nepotism law. Since her contract work for the city predated her husband's election as mayor by more than six months, sec.573.062(a) of the Government Code permitted her to continue to perform services for the city after her husband's election. Pursuant to sec.573.062(b) of the Government Code, the nepotism law did not prevent the city commission from approving a change in her status and compensation to that of a part-time employee, if the mayor did not participate in the deliberations or voting on such action. The nepotism law does not prevent the city commission from approving a change in her status and compensation from part-time to full- time employee, if the mayor does not participate in the deliberations or voting on this action. TRD-9504344 LO-95-016 (ID #29256). Request from Honorable Robert Hill Trapp, Criminal District Attorney, San Jacinto County, P.O. Box 430, Coldspring, Texas 77331, concerning whether a person must be a resident of a rural fire prevention district in order to be eligible board of fire commissioners under sec.794.033 of the Health and Safety Code. Summary of Opinion. a rural fire prevention district board of fire commissioners under sec.794.033 of the Health and Safety Code is a county officer for purposes of Article XVI, sec.14 of the Texas Constitution, and therefore must reside in the county in which the district is located but need not reside in the district. This conclusion does not apply to a board member of sec.794.033, who must be a resident of the district pursuant to the terms of that subsection. TRD-9504345 LO-95-017 (ID #25341). Request from Honorable Paul Sadler, Chair, Committee on Public Education, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a municipality is responsible for preparing an accurate map of municipal boundaries after the municipality has annexed territory. Summary of Opinion. Section 41.001(a) of the Local Government Code requires a municipality to prepare a map indicating the boundaries of the municipality. If a municipality annexes territory, section 41.001(b) requires the municipality immediately to correct the map to include the annexed territory. TRD-9504346 LO-95-018 (ID #29262). Request from Honorable Allen Ray Moody, Edwards County Attorney, P.O. Box 707, Rocksprings, Texas 78880, concerning procedure for setting annual salaries of elected county officers. Summary of Opinion. Given the failure to provide notice of the proposed salary increases prior to the adoption of the county budget for the 1995 fiscal year as required by sec.152.013 of the Local Government Code, Edwards County elected officers are not entitled to the salary increase. With this exception, the remainder of the county budget, assuming that it was adopted in conformity with statutory requirements, remains in effect. TRD-9504347 LO-95-019 (ID #31827). Request from Honorable Keith Oakley, Chair, House Committee on Public Safety, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether terms of an agreement between a public employer and a collective bargaining agent representing fire fighters pursuant to Local Government Code, Chapter 174 prevail over provisions of Local Government Code, Chapter 143. Summary of Opinion. A city that has adopted Local Government Code, Chapters 143 and 174 may agree with the collective bargaining agent representing its fire fighters to include provisions on entry-level employment in the collective bargaining agreement that will prevail over Local Government Code, sec.143.026, if the agreement specifically provides that its provisions prevail over the statute. TRD-9504348 LO-95-020 (ID #30360). Request from Honorable Tim Curry, Tarrant County Criminal District Attorney, Justice Center, 401 West Belknap, Fort Worth, Texas 76196-0201, concerning whether state nepotism laws prohibit an elected district official from hiring the son of his former spouse's sister. Summary of Opinion. Title 5, Government Code, Chapter 573, the prohibition against nepotism, does not prohibit an elected official from hiring the son of his former spouse's sister. TRD-9504349 LO-95-021 (ID #30383). Request from Todd K. Brown, Executive Director, Texas Workers' Compensation Commission, Southfield Building, MS-4D, 400 South IH-35, Austin, Texas 78704, concerning whether the Workers' Compensation Commission may promulgate a rule defining "separate business entity" for purposes of Labor Code, Chapter 407. Summary of Opinion. The Texas Workers' Compensation Commission may adopt a rule to define "separate business entity" for purposes of Labor Code, Chapter 407 if such a rule is necessary for the implementation and enforcement of Title 5, Subtitle A of the Labor Code. The commission's rule must comport with the relevant statutory provisions. TRD-9504350 LO-95-022 (ID #31810). Request from Honorable Hugo Berlanga, Chair, Committee on Public Health, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a member of the legislature is precluded by Article XVI, sec.40 of the Texas Constitution from working as an independent contractor on a part-time basis for a county government. Summary of Opinion. Article XVI, section 40 of the Texas Constitution, as interpreted by Letter Opinion Number 93-31 (1993), does not preclude a legislator from working as an independent contractor on a part-time basis for a county government. TRD-9504353 LO-95-023 (ID #32338). Request from Honorable Allen D. Place, Jr., Chair, Criminal Jurisprudence Committee, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768- 2910, concerning whether sec.12.36 of the Education Code prohibits the president of a school board from accepting employment as an attorney with a law firm in which other attorneys represent a textbook publishing company. Summary of Opinion. Section 12.36 of the Education Code prohibits only an attorney who is in an agency, or fiduciary, relationship with a textbook publishing company selling textbooks in Texas from holding a position as a trustee of an independent school district. Section 12.36 does not prohibit an attorney who works for the same law firm as the attorney or attorneys representing the textbook publishing company from holding office on the board of trustees of an independent school district if the textbook publishing company has established an agency relationship with other specific attorneys in the firm, as opposed to the firm as a whole. Thus, sec.12.36 does not prohibit the president of the board of an independent school district from becoming an employee of a law firm in which one or more other attorneys represent a textbook publishing company selling textbooks in Texas where the textbook publishing company has designated a particular attorney or attorneys in the firm, other than the school board president, as its agent. TRD-9504354 Open Records Decisions ORD-632 (RQ-649). Request from Melissa Winblood, Assistant City Attorney, City of El Paso, 2 Civic Center Plaza, El Paso, Texas 79901-1196 concerning availability of the emergency medical services records of deceased persons and related questions. Summary of Opinion. The term "personal representative," as that term is used in Health and Safety Code, sec.773.093 signifies "personal representative" as defined in Probate Code, 3(aa). A governmental body may not require a person seeking records under Health and Safety Code, sec.773.093 to produce letters testamentary or of administration when such letters, upon the city's request, have not been offered, but rather the governmental body must accept other evidence establishing an individual's personal representative status. TRD-9504374 Opinions DM-320 (RQ-651). Request from Doyne Bailey, Administrator, Texas Alcoholic Beverage Commission, P.O. Box 13127, Austin, Texas 78711-3127, concerning whether justice courts have jurisdiction of prosecutions for violations of Alcoholic Beverage Code, sec.sec.106.02, 106.04, and 106.05. Summary of Opinion. Section 19 of Article V of the Texas Constitution grants jurisdiction to justice courts in criminal matters in which the only possible sanction is a fine. Therefore, the justice courts do not have jurisdiction of prosecutions under Alcoholic Beverage Code, sec.sec.106. 02, 106.04, and 106.05 because those sections provide for the nonfine sanction of alcohol awareness education and because the legislature has not granted to the justice courts jurisdiction of prosecutions in which such a sanction may be imposed. TRD-9504355 DM-321 (RQ-686). Request from Rebecca E. Forkner, Executive Director, Texas State Board of Examiners of Psychologists, 9101 Burnet Road, Suite 212, Austin, Texas 78758, concerning whether a person who practices psychotherapy, hypnosis for health care purposes, hypnotherapy, or biofeedback without a license violates the Psychologists' Certification and Licensing Act, Texas Civil Statutes, Article 4512c. Summary of Opinion. A person who, for compensation, practices psychotherapy, hypnosis for health care purposes, hypnotherapy, or biofeedback without a license under the Psychologists' Certification and Licensing Act, Texas Civil Statutes, Article 4512c, violates that act unless such practice falls within one of the exceptions set out in the act. The act authorizes the Texas State Board of Examiners of Psychologists to take action to enjoin such violations, as well as other actions against violators authorized by law. TRD-9504356 DM-322 (RQ-368). Request from D. C. "Jim" Dozier, Executive Director, Texas Commission on Law Enforcement, Officer Standards and Education, 1033 La Posada, Suite 240, Austin, Texas 78752, concerning whether a constable who has not met the licensure requirements of the Commission on Law Enforcement Officer Standards and Education may run for re-election and related questions. Summary of Opinion. Government Code, sec.415.053 does not preclude a constable running for re- election to the office of constable in the same or, provided he or she satisfies the statutory residence requirements, a different precinct even if the constable did not, within two years of the date the constable took office in a previous term, obtain from the Commission on Law Enforcement Officer Standards and Education a license to serve as a peace officer. Likewise, sec.415.053 does not preclude a county commissioners court to the office of constable although that person during a previous term as constable, failed, within two years of the date he or she took office, to become licensed to serve as a peace officer. Section 415.053 provides the re-elected two years from the date he or she assumed office to obtain from the Commission on Law Enforcement Officer Standard and Education a license to serve as a peace officer. The members of a commissioners court are not subject to prosecution for violating sec.415.065 of the Government Code for appointing to the office of constable an individual who failed, during a previous term serving as constable, to become licensed in accordance with sec.415.053 of the Government Code. Once such an appointee assumes office, he or she is not subject to prosecution under sec.37.11 of the Penal Code for impersonating a public servant. Additionally, once the appointee assumes office, he or she may invoke the peace officer exception, Penal Code sec.46.03(a)(6), to sec.46.02 of the Penal Code, which criminalizes the intentional, knowing, or reckless carrying of certain weapons. TRD-9504357 DM-323 (RQ-676). Request from D. C. "Jim" Dozier, Executive Director, Texas Commission on Law Enforcement, Officer Standards and Education, 1033 La Posada, Suite 240, Austin, Texas 78752, concerning whether the Texas Commission on Law Enforcement Officer Standards and Education may establish requirements for the revocation of licenses of law-enforcement officers elected under the Texas Constitution, including sheriffs and constables, and related question. Summary of Opinion. Government Code, sec.415.053 and sec.415.060 do not conflict irreconcilably. Rather, sec.415.060 requires the Texas Commission on Law Enforcement Officer Standards and Education to establish procedures by which it may revoke the license of a nonconstitutional law-enforcement officer who has violated the statute or a rule promulgated pursuant to a statute. On the other hand, sec.415.053 requires TCLEOSE to establish requirements for the revocation of a license belonging to a law-enforcement officer elected under the constitution, including a sheriff and a constable. TCLEOSE must establish requirements for the revocation of a peace officer license belonging to a constable or sheriff, but the requirements may not apply to a constable who was elected prior to September 1, 1985, or to a sheriff who took office prior to January 1, 1994. TRD-9504358 DM-324 (RQ-489). Request from Honorable Mike Driscoll, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas 77002-1891, whether a justice of the peace may contract with his or her employees to assume liability for shortages, and related questions. Summary of Opinion. A justice of the peace is strictly liable for paying to the county treasury fees and other funds actually collected by him, subject to statutory remedies. A justice of the peace may not free himself of his liability for collecting funds and paying them to the county treasury by attempting to transfer this liability to his employees, by agreement or delegation. However, if a justice of the peace must reimburse the county for shortages of public funds caused by an employee's negligence or misconduct, the employee is liable to the justice of the peace for the loss. The justice of the peace may require the employee to provide, as a condition of employment, a written acknowledgment and acceptance of liability for shortages in collections that are caused by the employee's own negligence or misconduct. Local Government Code, sec.154.025 does not authorize enforcement of this agreement by withholding the employee's salary warrant, nor do we find any provision for enforcing it by payroll deduction. TRD-9504359 DM-325 (RQ-680). Request from Honorable Senfronia Thompson, Chair Judicial Affairs Committee, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether Education Code, sec.21.939 restricts school districts from using local funds to employ persons to monitor the activities of and supply information to legislators and state administrative agencies. Summary of Opinion. The prohibitions set out in subsections (a) and (b) of Education Code, sec.21.939 on school districts' "employing" lobbyists or persons whose "primary duties" relate to proposed legislation or administrative action, apply regardless of whether a district's funds used to compensate such persons are from local or other sources. A school district does not itself possess the personal rights of free speech and equal protection under the state or federal constitutions. TRD-9504360 DM-326 (RQ-742). Request from Honorable Kim Brimer, Chair, Committee on Business & Industry, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether the legislature constitutionally may establish a guaranty association for the workers' compensation liabilities of political subdivisions in which the membership would be mandatory and as to which the funding would come through assessments imposed on the membership. Summary of Opinion. A proposal to establish a guaranty association, to require public insurance pools and public self-insurers to join the association, and to fund the association through assessments on the members would, if enacted, violate Article III, sec.52(a) of the Texas Constitution for two reasons. First, the obligation to pay assessments to a mutual insurance company, such as the guaranty association, constitutes an unconstitutional lending of credit. Second, membership in a mutual insurance company that operates on the basis of assessments is tantamount to holding stock in a corporation, association, or company. TRD-9504361 DM-327 (RQ-699). Request from Honorable John B. Holmes, Jr., Harris County District Attorney, 201 Fannin, Suite 200, Houston, Texas 77002-1901, concerning whether private security guards and off-duty peace officers are prohibited from carrying firearms on the premises of racetracks by Penal Code, sec.46.03. Summary of Opinion. Private security guards and off-duty peace officers are prohibited from carrying firearms on the premises of racetracks by Penal Code, sec.46.03. Peace officers, including investigators employed by the Texas Racing Commission, may carry firearms on the premises of racetracks while in the actual discharge of their official duties. See Penal Code, sec.46.03(b); Code of Criminal Procedure, Article 2. 12(21). TRD-9504362 DM-328 (RQ-721). Request from Carl Mullen, Deputy Director, General Services Commission, P.O. Box 13047, Austin, Texas 78711-3047, concerning whether the General Services Commission has the authority to promulgate a rule to deem businesses owned by individuals with disabilities as "historically underutilized businesses" as that term is defined in Texas Civil Statutes, Article 601b, sec.1.02(3). Summary of Opinion. The General Services Commission does not have the authority to promulgate a rule to deem businesses owned by individuals with disabilities as "historically underutilized businesses" as that term is defined in Texas Civil Statutes, Article 601b, sec.1.02(3), because the legislature did not intend that term to refer to businesses other than those owned by persons who are socially disadvantaged because of their identification as members of groups defined by gender, race, or ethnicity. TRD-9504363 DM-329 (RQ-684). Request from Catherine A. Ghiglieri, Commissioner, Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705-4294, concerning whether state and private university debit card programs are subject to the Sale of Checks Act, Texas Civil Statutes, Article 489d, and related questions. Summary of Opinion. It is unlikely that a court would conclude that a university debit card program which does not involve the transfer of funds via written instruments is subject to the Sale of Checks Act, Texas Civil Statutes, Article 489d. It is also unlikely that a court would conclude that a university that offers a debit card program among its many and various activities engages in banking. Private universities are authorized to operate debit card programs, provided that the programs are consistent with the educational mission set forth in their corporate charters and do not violate the Sale of Checks Act or constitute unauthorized banking. Although we have found no statute which expressly authorizes a state university to operate a debit card program, we believe that it is likely that a court would probably construe the broad powers of a board of regents to impliedly authorize a state university do to so. TRD-9504364 DM-330 (RQ-696). Request from Honorable Clyde Alexander, Chair, Committee on Transportation, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, Whether a statutorily mandated sign furnished by a towing company to a parking facility constitutes "anything of value" in contravention of Texas Civil Statutes, Article 6701g-2, and a related question. Summary of Opinion. A sign of the sort required to be posted at a parking facility by Texas Civil Statutes, Article 6701g-2, is a thing of value for the purposes of sec.8 and sec.9 of that statute. The responsibility for posting such a sign rests, pursuant to sec.3 and sec.4 of the statute, on the owner of the parking facility concerned, rather than upon the towing company. TRD-9504365 DM-331 (RQ-644). Request from Honorable David H. Cain, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning whether a city's expenditures of community development block grant funds are subject to state competitive bidding laws. Summary of Opinion. Expenditures by a city of Federal Community Development Block Grant Funds on "contracts" exceeding the threshold amounts set out in the state's municipal competitive bidding laws and not falling within any of the exceptions to the bidding requirements set out there or elsewhere in state law are subject to competitive bidding. TRD-9504366 DM-332 (RQ-724). Request from Honorable Kenny Marchant, Chair, Committee on Investments and Banking, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768- 2910, concerning whether certain subordinated debt of a pawnshop must be included in the calculation of net assets for purposes of determining eligibility for a pawnshop license under the Texas Pawnshop Act, Texas Civil Statutes, Title 79, Chapter 51. Summary of Opinion. Assuming that under a subordination agreement, a bank forfeits its security priority as well as any rights it may have as an unsecured creditor to current assets of a pawnshop-borrower in the amount of $150,000, a subordination agreement would not render the pawnshop's current assets unavailable for use in the pawnshop business. Accordingly, debt that is subject to a lender's subordination agreement generally is not an applicable liability for the purpose of calculating the pawnshop's net assets under Texas Civil Statutes, Article 5069-50.02(g). TRD-9504367 DM-333 (RQ-750). Request from Honorable Mike Driscoll, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas 77002-1891, concerning Harris County Sheriff's authority to call up reserve deputy sheriffs to provide security personnel to separate governmental or private entities, and related questions. Summary of Opinion. Local Government Code, sec.85.004, which generally empowers a commissioners court to authorize the sheriff to to call them "into service if the sheriff considers it necessary to have additional officers to preserve the peace and enforce the law," does not in itself authorize the Harris County Sheriff to call a reserve deputy sheriff into service for the purpose of providing security personnel to a separate governmental or private entity that will pay the deputies on an employee or independent contractor basis. TRD-9504368 DM-334 (RQ-728). Request from Honorable D. August Boto, Cooke County Attorney, 3rd Floor, Courthouse, Gainesville, Texas 76240, concerning whether a victim of delinquent conduct by a child may be a person having a "legitimate interest in the proceeding" for purposes of sec.51.14(a)(4) of the Family Code, and related questions. Summary of Opinion. In some circumstances the public policy in favor of compensating property owners for the malicious destruction of their property may justify a juvenile court's determination that a victim of vandalism seeking access to court files and records under sec.51.14(a)(4) of the Family Code for use in a civil action for damages caused by the vandalism is a "person . . . having a legitimate interest" in a proceeding adjudicating a child to have engaged in delinquent conduct or conduct indicating a need for supervision. The provision in sec.51.14(a) that the "files and records of a juvenile court . . . are open to inspection only by [the persons and entities set forth in subsection (a)]" means that only those persons and entities may inspect juvenile files and records, not that those persons and entities may only inspect juvenile files and records. A grant of access to records under sec.51. 14(a)(4) does not include permission to copy the records unless the public interest requires that the requestor have copies. TRD-9504369 DM-335 (RQ-722). Request from Honorable Warren Chisum, Chair, Committee on Environmental Regulation, Texas of House of Representatives, P.O. Box 2061, Pampa, Texas 79066-2061, concerning whether an entity that contracts with an independent school district to provide educational services to the district under Education Code, sec.23.34 must comply with various statutory requirements imposed on school districts. Summary of Opinion. Education Code, sec.23.34 which permits school districts to contract with public or private entities to provide educational services, does not relieve school districts that enter into such contracts from complying with statutory requirements applicable to school districts. School districts must ensure compliance with statutory requirements when contracting with other entities under sec.23.34. TRD-9504370 DM-336 (RQ-748). Request from Bruce A. Levy, M.D., J.D., Executive Director, Texas State Board of Medical Examiners, P.O. Box 149134, Austin, Texas 78714-9134, concerning whether the Texas State Board of Acupuncture Examiners may promulgate a rule authorizing acupuncturists to hold themselves out as "doctor," "Oriental Medical Doctor," or "O.M.D." and related questions. Summary of Opinion. Subchapter F of the Medical Practice Act, Texas Civil Statutes, Article 4495b, authorizes the Texas State Board of Acupuncture Examiners to recommend to the Texas State Board of Medical Examiners rules authorizing acupuncturists to use certain titles. Conversely, the board may recommend a rule limiting acupuncturists' use of such titles. Of course, pursuant to sec.6.11(a)(7) of the Medical Practice Act, the Texas State Board of Acupuncture Examiners may not recommend to the Texas State Board of Medical Examiners a rule authorizing an acupuncturist to use the title "physician" or "surgeon" or a combination or derivative of those terms, nor may the board recommend a rule that is contrary to other law. Likewise, if, regardless of whether the board promulgates rules approving or limiting the titles an acupuncturist may use, an acupuncturist may not select a designation that contravenes Article 4459b, sec.6.11(a)(7) or any other law. A healing art practitioner's proper use of the title "doctor" under sec.4 of the Healing Art Identification Act, Texas Civil Statutes, Article 4590e, does not constitute a violation of Texas Civil Statutes, Article 4512p, sec.4. An acupuncturist may use the title "doctor" in accordance with sec.4 of the Healing Art Identification Act. However, the board may not recommend to the Texas State Board of Medical Examiners a rule regarding an acupuncturist's use of the title "doctor." Whether an acupuncturist's use of the titles "Oriental Medical Doctor" and "O.M.D." would mislead or tend to deceive the public so as to violate Article 4512p, sec.4, for example, sec.4(b)(5), is a question involving the determination of fact issues. The board may, of course, recommend to the Texas Board of Medical Examiners a rule limiting acupuncturists' use of the titles "Oriental Medical Doctor" and "O.M.D." TRD-9504371 DM-337 (RQ-624). Request from Honorable Sonya Letson, Potter County Attorney, 303 Courthouse, Amarillo, Texas 79101, concerning whether Local Government Code, sec.157.002 authorizes a county to provide medical coverage for district officers and related questions. Summary of Opinion. Local Government Code, sec.157.002(a)(2) does not prohibit a county from phasing out its provision of medical coverage to district officers by covering only those district officers who hold office as of a certain date. Unless a suspect class is involved, such a plan violates the equal protection clause of the 14th Amendment to the United States Constitution only if the county commissioners court lacks a legitimate purpose for phasing out medical coverage for district officers in this way and if the commissioners court's belief that distinguishing between incumbent and new office-holders will promote that purpose is unreasonable. Terminating medical coverage under sec.157.002(a)(2) for all district officers on a certain date violates the Americans with Disabilities Act, 42 U. S.C. Chapter 126, only if the termination discriminates on the basis of disability against a qualified individual. TRD-9504372 DM-338 (RQ-342). Request from Honorable Tim Curry, Criminal District Attorney, Justice Center, 401 West Belknap, Fort Worth, Texas 76196-0201, concerning whether an expanded county civil service system established under Local Government Code, sec.158.007 covers sheriff's and constable's deputies when the sheriff's department has not established a separate civil service system under Chapter 158, subchapter B, and whether a county civil service system has authority to adopt subpoena power. Summary of Opinion. In a county whose sheriff's department has not established a separate civil service system under subchapter B of Local Government Code, Chapter 158 a county civil service system resulting from an expansion election under Local Government Code, sec.158.007 does include deputy sheriffs and deputy constables. Local Government Code, sec.158.009 does not authorize a county civil service commission to endow itself with subpoena power by its own rule. TRD-9504373 Requests for Opinions (RQ-780). Request from The Honorable Daniel C. Rice, District Attorney, 9th Judicial District, 301 North Thompson, Suite 106, Conroe, Texas 77301-2824 concerning scope of the Open Record 27>s Act, Government Code, Chapter 552, applicable to particular information held by a district attorney. (RQ-781). Request from Susan Smith, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701-1494 concerning whether an independent school district may purchase, lease, rent, or use, for the purpose of transporting students, buses and other motor vehicles that do not meet federal standards, and related questions. (RQ-782). Request from William G. Burnett, P.E., Executive Director, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701-2483 concerning whether revenues recovered by the State of Texas as oil and gas royalties should be credited to the State Highway Fund. (RQ-783). Request from Dr. Ann Dixon, Superintendent, Somerset Independent School District, P.O. Box 278, Somerset, Texas 78069, concerning whether the Open Records Act applies to documentation of official communications and activities occurring at the workplace, where the documentation was prepared by a public employee on his or her own time for purposes of defending against possible allegations of wrongdoing and is being kept at the employee's residence. (RQ-784). Request from Honorable Kenneth H. Ashworth, Commissioner, Texas Higher Education Coordinating Board, P.O. Box 12788, Austin, Texas 78711, concerning whether the Coordinating Board is required to issue a partial release of a student loan judgment lien on real property which the judgment debtor claims as a homestead, and related questions. (RQ-785). Request from Honorable David Sibley, Chair, Economic Development Committee, P.O. Box 12068, Austin, Texas 78711 concerning whether a partial redistricting constitutes a "reapportionment" pursuant to Article III, section 3, of the Texas Constitution, and related questions. (RQ-786). Request from David W. Myers, Executive Director, Texas Commission for the Blind, P.O. Box 12904, Austin, Texas 78711, concerning use of an interpreter for deaf andhearing-impaired persons in administative and judicial proceedings. (RQ-787). Request from Ray Farabee, Vice Chancellor and General Counsel, The University of Texas System, 201 West Seventy Street, Austin, Texas 78701-2981, concerning meaning of the term "The Cold War" in Education Code, sec.54.203, for purposes of exempting veterans from payment of tuition and fees at a state institution of higher education. (RQ-788). Request from Linda Young, Executive Director, Texas Automobile Theft Prevention Authority, 4000 Jackson Avenue, Austin, Texas 78779-0001, concerning whether the Texas Automobile Theft Prevention Authority (ATPA) may grant to an insurance company a refund from the automobile theft prevention fund. (RQ-789). Request from Honorable Doyle Willis, Chair, Select Committee on Veterans Affairs, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether police officers of a home rule city must be "sworn in" every two years. (RQ-790). Request from Robert L. Dillard, III, Nichols, Jackson, Dillard, Hager & Smith, L.L.P., 1800 Lincoln Plaza, 500 North Akard, Dallas, Texas 75201, duty of governmental body to timely inform this office of changed circumstances when raising Government Code, sec.552.103. (RQ-791). Request from Carole Wayland, Acting Midland County Auditor, Midland County, 200 West Wall, Midland, Texas 79701, concerning whether a county attorney's "hot check fund" is subject to review by the county auditor. (RQ-792). Request from David R. Smith, M.D., Commissioner, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3199 concerning whether Family Code, sec.14.52(d) which requires bidders on state contracts to file sworn statements regarding child support obligations, is applicable to medicaid providers which operate in Texas. (RQ-793). Request from Commissioner Rick Perry, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, concerning authority of the Texas Department of Agriculture to implement a field citation program for assessment of administrative penalties. TRD-9504330