ATTORNEY GENERAL
Under provisions set out in the Texas Constitution, the Texas Government Code, 
Title 4,  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.

L096-043(ID# 34647).
Request from Johanna
 McCully-Bonner, General Counsel, Texas Department of Housing and Community
 Affairs, P.O.Box 13941, Austin, Texas 78711-3941, concerning whether the term
 "organization" in Government Code, sec.2306.028 includes a city.


Summary of Opinion. Section 2306.028 of the
 Government Code disqualifies an individual from serving as a public member
 of the Department of Housing and Community Affairs if the individual is 
employed
 by or participates in the management of a business entity or other organization
 regulated by the department or receiving funds from the department. The word
 "organization" in section 2306.028 of the Government Code, does not include
 a city, nor does it include governmental entities generally, such as political
 subdivisions, special districts, and state institutions of higher education.
 Section 572.051 of the Government Code provides that a state officer should
 not accept other employment that might reasonably be expected to require
 or induce him or her to disclose confidential information acquired by reason
 of being an officer. Nor should a state officer accept other employment or
 compensation that could reasonably be expected to impair his or her 
independence
 of judgment in the performance of the officer's official duties. Whether
 a board member's acceptance of a particular employment would violate these
 provisions is a fact question, to be decided by the board in the first 
instance.

LO96-044 (ID# 22504).
 Request from the Honorable Steven C. Hilbig, Bexar County Criminal District
 Attorney, 300 Dolorosa, Suite 5072, San Antonio, Texas 787205-3030, regarding
 whether the Bexar County Bail Bond Board is authorized to issue multiple
 licenses to an individual under V.T.C.S., Article 2372p-3.


Summary of Opinion. The Bexar County Bail
 Bond Board is not authorized to issue multiple licenses to an individual
 under V.T.C.S., Article 2372p-3.


LO96-045 (ID# 37383). Request from Jack W.
 Garison, Executive Director, Texas Department of Licensing and Regulation,
 P.O. Box 12157, Austin, Texas 78711, concerning whether elevators in a facility
 that serves as the residence of members of a religious order are required
 to meet the requirements set forth in Health and Safety Code chapter 754,
 subchapter B, and related question.


Summary of Opinion. To the extent that the
 conclusion in Letter Opinion Number 94-096 encompasses elevators, escalators,
 and related equipment in an industrial facility, the 1995 amendments to section
 754.014 of the Health and Safety Code have superseded the letter opinion.
 We therefore modify the conclusion reached in Letter Opinion Number 94-096
 as follows: Section 754.014 of the Health and Safety Code requires the 
commissioner
 of licensing and regulation to promulgate standards for the installation,
 alteration, operation, and inspection of all elevators designed to carry
 individuals in any commercial establishment, unless the building is "an 
industrial
 facility, . . . grain silo, radio antenna, bridge tower, underground facility,
 or dam, to which access is limited principally to employees of or working
 in that facility or structure." The term "commercial establishment" in section
 754.014(a)(2) thus does not encompass an industrial facility, nor does it
 encompass a private home. 

An elevator in a residential facility, which facility a religious order
 operates for its members on a not-for-profit basis, is subject to the 
regulations
 the commissioner of licensing and regulation promulgates pursuant to section
 754.014(a) of the Health and Safety Code if the facility is a commercial
 establishment. Generally, a residential facility is a commercial establishment
 if, pursuant to a contract, the residents pay a rental fee in exchange for
 their living space. Moreover, an elevator in a commercial establishment is
 subject to regulation only if the public uses the elevator.


LO96-046 (ID# 36043). Request from Jack E.
 Crump, Executive Director, Texas Commission on Jail Standards, P.O. Box 12985,
 Austin, Texas, 78701, regarding frequency of county jail inspections required
 of the Commission on Jail Standards under Government Code, sec.511.009
.
Summary of Opinion. Pursuant to sec.511.009(a)(11)
 of the Government Code, the Commission on Jail Standards must inspect each
 county jail once each twelve-month period. The commission need not inspect
 a county jail within 365 days of a previous inspection. 

Section 511.009(a)(11) does not require the commission to adopt an inspection
 year that corresponds to the calendar year. The commission may adopt an 
inspection
 year that corresponds to a fiscal year.


LO96-047 (ID# 35255). Request from Janie
 D. Fields, M.P.A., Executive Director, Children's Trust Fund of Texas Council,
 8929 Shoal Creek Boulevard, Suite 200, Austin, Texas, 78757-6854, regarding
 whether the legislature may impose certain restrictions on expenditures of
 the Children's Trust Fund of Texas Council and related questions.


Summary of Opinion. The Children's Trust
 Fund of Texas Council, established by chapter 74 of the Human Resources Code,
 administers a program of grants for prevention of child abuse and neglect.
 Funding for the council's work derives from marriage license fees dedicated
 by statute to the children's trust fund in the treasury and transferred from
 the trust fund to an operating fund for appropriation by the legislature.
 The legislature is not required to appropriate from the operating fund to
 the council the full amount of revenue that may be transferred to operating
 fund.


LO96-048 (ID# 36115). Request from Mike
 Moses, Commissioner of Education, Texas Education Agency, 1701 North Congress
 Avenue, Austin, Texas 78701-1494, concerning whether the board of trustees
 of an independent school district must hold both "open" and "closed" meetings
 within the boundaries of the district.


Summary of Opinion. Section 26.007(b) of
 the Education Code requires both open and closed meetings of a school district
 board of trustees to be held within the boundaries of the school district.

LO96-049 (ID# 38147). Request from the Honorable
 Fred Hill, Chair, Committee on Urban Affairs, Texas House of Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, regarding whether a city council
member may vote or decide on a zoning matter regarding the subdivision in
 which the member resides.


Summary of Opinion. Under chapter 171 of
 the Local Government Code, a city council member may not vote or decide on
 a zoning matter regarding the subdivision in which the member owns a residence
 if it is reasonably foreseeable that the action on the matter will have a
 special economic effect on the value of the member's residence, distinguishable
 from its effect on the public.


LO96-050 (ID# 38613). Request from Rebecca
 E. Forkner, Executive Director, Texas State Board of Examiners of 
Psychologists,
 333 Guadalupe, Suite 2-450 Austin, Texas 78701, concerning duties of the
 Psychological Associate Advisory Committee to the State Board of Examiners
 of Psychologists.


Summary of Opinion. The Psychological Associate
 Advisory Committee is a part of the State Board of Examiners of Psychologists,
 and subject to that body's general rules and regulations. Its authority to
 recommend rules to the State Board of Examiners of Psychologists is limited
 to those areas concerning psychological associates expressly listed in section
 19A(l) of article 4512, V.T.C.S. It has no authority to develop or recommend
 rules concerning any other persons regulated by the board.


LO96-051 (ID# 37464). Request from Kenneth
 H. Ashworth, Commissioner, Texas Higher Education, Coordinating Board, P.O.
Box 12788, Austin, Texas 78711, concerning whether a community college may
 deduct outstanding cellular telephone charges from an employee's salary.

Summary of Opinion. Section 659.002(a) of
 the Government Code prohibits a community or junior college, such as Lee
 College, from contracting with an employee to allow the college to deduct
 from the employee's salary any outstanding cellular telephone charges that
 the employee may incur. Education Code section 22.002 authorizes a community
 college employee to assign an interest in his or her salary only for an 
existing
 indebtedness.


LO96-052 (ID# 38812). Request from the Honorable
 William R. Ratliff, Chair, Education Committee, Texas State Senate, P.O.
Box 12068, Austin, Texas 78711, concerning whether the husband of the curriculum
 coordinator of the Upper Northeast Texas Tech Prep Consortium may serve on
 the governing board of the Northeast Texas Community College District and
 related questions.


Summary of Opinion. Chapter 573 of the Government
 Code does not apply to a member of the governing board the Northeast Texas
 Community College District whose wife is the curriculum coordinator of the
 Upper Northeast Texas Tech Prep Consortium, of which the college district
 is a member, unless the governing board of the college district has the 
authority
 to hire the curriculum coordinator. Chapter 171 of the Local Government Code
 does not prevent the Tech Prep curriculum coordinator's husband from serving
 on the governing board of the college district.


LO96-053 (ID# 38711). Request from the Honorable
 Tim Cone, Criminal District Attorney, Upshur County Justice Center, 405 North
 Titus Street, Gilmer, Texas 75644, whether a lease-purchase agreement between
 a county and an appraisal district is governed by section 292.001 or chapter
 263 and section 272.001 of the Local Government Code.


Summary of Opinion. A lease of a building
 that a county received by donation and does not use for county purposes is
 not a lease of excess county office space under Local Government Code section
 292.001(c); the requirements of Local Government Code chapter 263 would apply,
 precluding the county from merely accepting an offer to lease or purchase
 the building. In addition, if the transaction constitutes a sale, the 
requirements
 of Local Government Code section 272.001 would apply.


LO96-054 (ID# 38628). Request from Helen
 Campbell, Fire Fighters' Pension Commissioner, 3910 South IH-35, Suite 235
 Austin, Texas 78704, concerning whether a volunteer fire department may 
withdraw
 from the statewide volunteer fire fighters' pension system if the department
 does not intend to transfer its assets and liabilities from the pension system
 to another pension plan.


Summary of Opinion. A volunteer fire department
 may withdraw from the statewide pension system established under V.T.C.S.,
 Article 6243e.3 only if the fire department has designated or created a 
separate
 pension plan to replace the statewide pension system. Of course, the fire
 department also must withdraw in accordance with a majority vote of its 
volunteer
 fire fighters and within five years of joining the statewide pension system.

LO96-055 (ID# 36957). Request from the Honorable
 Pete P. Gallego, Chair, General Investigating Committee, Texas House of 
Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, regarding whether the holder of
 a special parking permit for the disabled is entitled to free parking in
 airport parking lots and garages.


Summary of Opinion. Under Transportation
 Code section 681.006(b), a vehicle owner who displays a special parking permit
for the disabled is exempt from paying a parking fee at an airport parking
 facility that a county, municipality, or joint board owns and operates, but
 only if a disabled individual is operating the vehicle or another person
 is operating the vehicle to transport a disabled individual. Additionally,
 a vehicle owner who displays a special parking permit for the disabled is
 exempt from paying a parking fee at an airport parking facility that a county,
 municipality, or joint board owns but that a third party operates under a
 contract with the governmental unit, but only if a disabled individual is
 operating the vehicle or another person is operating the vehicle to transport
 a disabled individual.


LO96-056 (ID# 35216). Request from the Honorable
 Steve Holzheauser, Chair, Energy Resources Committee, Texas House of 
Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, request from whether an elected
 official must file the statement required by article XVI, section 1 of the
 Texas Constitution as a prerequisite to performing his duties of office.

Summary of Opinion. An elected officer who
 has not filed with the Secretary of State the signed statement required by
 article XVI, section 1(b) of the Texas Constitution may nonetheless be shown
 to be a de facto officer, whose acts the law validates with respect to third
 parties and the public. Whether the de facto doctrine will apply in a given
 case is a fact question. The proper remedy to question the authority of a
 de facto public official is a quo warranto proceeding brought in the name
 of the state.


LO96-057 (ID# 38587). Request from the Honorable
 Kenny Marchant, Chair, Committee on Financial Institutions, Texas House of
 Representatives, P.O. Box 2910, Austin, Texas 78768-2910, regarding whether
 a municipal hospital authority is authorized under chapter 262 of the Health
 and Safety Code to lease real property to a private entity to operate a bank,
 restaurant, or drugstore.


Summary of Opinion. Under chapter 262 of
 the Health and Safety Code, a municipal hospital authority may lease real
 property to a private entity to operate a bank, restaurant, or drugstore
 if the board determines that the establishment "is related or essential to
 the operation of a health facility or system" and is "necessary or convenient"
 for the hospital. The lease must also comport with article III, section 52
 of the Texas Constitution.


LO96-058 (ID# 36466). Request from David
 R. Smith, M.D., Commissioner of Health, Texas Department of Health, 1100
 West 49th Street, Austin, Texas 78756-3199, regarding whether various testing
 committees or other entities that approve the contents of a licensing 
examination
 may meet in executive session to discuss test questions and answers.


Summary of Opinion. Testing committees of
 the Department of Health that review and approve the contents of licensing
 examinations are not authorized to meet in executive session under the Open
 Meetings Act, Government Code, chapter 551, to discuss test questions and
 answers.


LO96-059 ID# (37779). Request from the Honorable
 Ron Wilson, Chair, House Committee on Licensing and Administrative Procedures,
 P.O. Box 2910, Austin, Texas 78768-2910, concerning whether the offense of
 criminal trespass, Penal Code section 30.05, may be committed on a bus.


Summary of Opinion. The offense of criminal
 trespass, as described in section 30.05, Penal Code, may not be committed
 on a bus.


LO96-060 (ID# 37938). Request from the Honorable
 James M. Kuboviak, Brazos County Attorney, 300 East 26th, Suite 325, Bryan,
 Texas 77803, concerning whether the district and statutory county courts
 of Brazos County may utilize a centralized filing system for misdemeanor
 cases, so that the county attorney may file a misdemeanor case to be tried
 in either the district or a statutory county court with the county clerk.

Summary of Opinion. Government Code, section
 25.0232(g) precludes the county clerk of Brazos County from accepting for
 filing misdemeanor cases over which the statutory county courts and the 
district
 court have concurrent jurisdiction. Rather, only the district clerk may accept
 for filing these misdemeanor cases.


LO96-060 (ID# 37938). Request from the Honorable
 James M. Kuboviak, Brazos County Attorney, 300 East 26th, Suite 325 Bryan,
 Texas 77803, concerning whether the district and statutory county courts
 of Brazos County may utilize a centralized filing system for misdemeanor
 cases, so that the county attorney may file a misdemeanor case to be tried
 in either the district or a statutory county court with the county clerk.

Summary of Opinion. Government Code, section
 25.0232(g) precludes the county clerk of Brazos County from accepting for
 filing misdemeanor cases over which the statutory county courts and the 
district
 court have concurrent jurisdiction. Rather, only the district clerk may accept
 for filing these misdemeanor cases.


LO96-061 (ID# 38145). Request from the Honorable
 Senfronia Thompson, Chair, Committee on Judicial Affairs, Texas House of
 Representatives, P.O. Box 2910, Austin, Texas 78768-2910, concerning whether
 a municipal utility district board member becomes ineligible to serve on
 the board if during the board member's term he or she no longer owns property
 in the district or is no longer a registered voter in the district.


Summary of Opinion. Water Code section 54.102
 lists qualifications a director of a municipal utility district must satisfy
 throughout the term of service on the board. A director who, during the term
 of office, divests him-or herself of an ownership interest in land subject
 to taxation in the district is no longer qualified to serve on the municipal
 utility district board so long as the director also may not vote in the 
district.
 Likewise, a director who owns no property in the district and who, during
 the term of office, loses the right to vote in the municipal utility district
 is no longer qualified to serve on the district's governing board. In both
 circumstances, the director automatically vacates his or her position on
 the board. 

Whether a particular member of a municipal utility district's governing
 board owns property that is subject to taxation in the district is a question
 of fact.


LO96-062 (ID# 36358). Request from the Honorable
 Harvey Hilderbran, Chair, Human Services Committee, Texas House of 
Representatives,
 P.O. Box 2910, Austin, Texas 78768-2910, concerning whether a church is 
entitled
 to an exemption from ad valorem taxes on property that it purchases in the
 middle of the tax year.


Summary of Opinion. Section 11.42(a) of the
 Tax Code requires a property owner and the real property in issue to be 
qualified
 for a tax exemption on January 1 of a tax year if the property is to be exempt
 from ad valorem taxation. A mid-year transfer of real property from a nonexempt
 owner to an exempt owner does not alter the taxable character of the property
 during that tax year unless other law explicitly provides to the contrary.
 Consequently, where a religious organization has purchased real property
 in May, the religious organization is liable for ad valorem taxes that accrue
 from May through December.


Issued in Austin, Texas, on June 19, 1996.

TRD-9608821

Suzanne Marshall


Special Assistant


Office of the Attorney General


Filed: June 19, 1996