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.

Letter of Opinions

LO 96-103. David R. Smith, M.D., Commissioner,
 Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756, 
concerning
 regulation of kinesiotherapists under article 4512e, V.T.C.S., and related
 question (ID# 38920).


Summary. The Texas Department of Health does
 not have the authority to register kinesiotherapists.


LO 96-106. Request from Mr. Lawrence R. Jacobi,
 Jr., P.E., General Manager, Texas Low-Level Radioactive Waste Disposal 
Authority,
 7701 North Lamar Boulevard, Suite 300, Austin, Texas 78752, concerning 
authority
 of the Texas Low-Level Radioactive Waste Disposal Authority top exchange
 real property with a private individual. (ID# 38918)


Summary. Absent express statutory authority,
 the Texas Low-Level Radioactive Waste Disposal Authority may not exchange
 its land for land owned by a private party.


LO 96-107. Request from The Honorable Shane
Ann Green, Brewster County Attorney, P.O. Box 323, Alpine, Texas 79831, 
concerning
 whether the "resign-to-run" provision of the Texas Constitution is applicable
 when an individual declares herself a "candidate" for an appointed position
 (ID# 38807).


Summary. The automatic resignation provision
 of article XVI, sec.65 of the Texas Constitution does not operate to remove
 a county judge who seeks gubernatorial appointment to a district court bench.
 A member of the board of directors of a hospital district holds an office
 of trust.


LO 96-113. The Honorable Thomas F. Lee, District
 Attorney, 63rd Judicial District, P.O. Box 1405, Del Rio, Texas 78841, 
concerning
 whether the Del Rio Chamber of Commerce Room Tax Committee is subject to
 the Open Meetings Act, Chapter 551, Government Code (ID# 38830).


Summary. A committee of the chamber of commerce
 that is expending funds raised by the local hotel tax under contract with
the city is not a governmental body within the Open Meetings Act.


LO 96-114. Request from The Honorable Marcos
 Hernandez, Jr., Hays County Criminal District Attorney, 110 East Martin Luther
 King Drive, Hays County Justice Center, San Marcos, Texas 78666, concerning
 whether prior conviction of a felony disqualifies an individual from serving
as a member of a school district board of trustees. (ID# 38806)


Summary. Prior conviction of a felony disqualifies
 an individual from serving as a member of the board of trustees of an 
independent
 school district, unless the person has been pardoned or otherwise released
from the resulting disabilities.


LO 96-116. Anthony P. Picchioni, Ph.D., Chair,
 Texas State Board of Examiners of Professional Counselors, 1100 West 49th
 Street, Austin, Texas 78756-3183, concerning whether the complaints committee
 of the Texas State Board of Examiners of Professional Counselors may discuss
 with its attorney in a closed meeting complaints against counselors. (ID#
38695)


Summary. Government Code sec.551.071(1)(A)
authorizes a governmental body, including the Texas State Board of Examiners
 of Professional Counselors' Complaints Committee, to consult with its attorney
 in a closed meeting regarding pending or contemplated quasi-judicial, 
administrative
 proceedings governed by the Administrative Procedure Act. Similarly, 
sec.551.071(1)(B)
 authorizes a governmental body to consult with its attorney in a closed meeting
 regarding the settlement of a matter that otherwise would proceed to a quasi-
judicial,
 administrative hearing. Government Code sec.551.071(2) authorizes the Texas
 State Board of Examiners of Professional Counselors' complaints committee
 to consult with its attorney in a closed meeting about matters in which the
 attorney's duty to the complaints committee "under the Texas Disciplinary
 Rules of Professional Conduct of the State Bar of Texas clearly conflicts
 with" the Open Meetings Act, Government Code chapter 551. The complaints
 committee must take any final actions in an open meeting.


LO 96-120. Request from The Honorable Mike
 Driscoll, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas
 77002-1891, concerning whether subchapter A of chapter 332 of the Local 
Government
 Code is applicable to professional baseball and football facilities and related
 questions. (ID# 39196)


Summary. Construction of new or renovated
 stadiums, arenas, and other facilities for use by professional baseball and
 football teams constitute "recreational facilities" under subchapter A of
chapter 332 of the Local Government Code (the "code"). The proposition and
 ballot language conform to the requirements of law. An election held pursuant
 to sec.332.003 of the code is binding although it is not clear that if
 the proposition submitted passes, that the Harris County Commissioners Court
 would be required to exercise the powers conferred. Defeat of the sec.332.003
 referendum would not preclude the commissioners court from expending public
 funds for improvements to the Astrodome Complex under and in compliance with
 other statutory or constitutional authority.


LO 96-123. Request form The Honorable Don
 Henderson, Chair, Jurisprudence Committee, Texas State Senate, P.O. Box 12068,
 Austin, Texas 78711-2068, concerning whether, under Property Code 
sec.204.010(9),
 a property owners' association may assess additional fees or raise existing
 fees for services the association performs, without following "established
 procedures" for assessing or raising the fees. (ID# 38818)


Summary. Property Code sec.204.010(a)(9)
 authorizes the board of a property owners' association that is subject to
 chapter 204 to impose, without membership approval, payments, fees, or charges
 for the use, rental, or operation of the common area and for services provided
 to property owners unless property restrictions or the association's articles
 of incorporation or bylaws provide otherwise. Subsection (a)(9) encompasses
 the authority to set additional payments, fees, or charges and to raise 
existing
 payments, fees, or charges.


LO 96-126. Request from Mr. Wayne Scott,
 Executive Director, Texas Department of Criminal Justice, P.O. Box 99, 
Huntsville,
 Texas 77342, concerning eligibility for mandatory release of inmates convicted
 of indecency with a child under Penal Code sec.21.11(a)(11). (ID# 39210)

Summary. Inmates convicted of indecency with
a child under sec.21.11(a)(1) of the Penal Code are not eligible for mandatory
 supervision according to the terms of Code of Criminal Procedure article
 42.18, sec.8(c).


LO 96-127. The Honorable Doyle Willis, Chair,
 Military and Veterans Affairs, Texas House of Representatives, P.O. Box 2910,
 Austin, Texas 78768-2910, concerning whether Bexar County Commissioners Court
 may house its veterans service office with its Department of Housing and
 Human Services. (ID# 38643)


Summary. A Veterans County Service Office
in a county with a population of 200,000 or more must be located in an office
 that is "separate and distinct" from other county offices. The Veterans County
 Service Officer should have a sufficient degree of physical separation from
 other county departments and officials to enable veterans to identify and
 locate him or her.


TRD-9700349