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.

Office of the Attorney General

Letter Opinions

LO #96-134. Request from the Honorable Debra
 Danburg, Chair, Committee on Elections, Texas House of Representatives, P.O.
 Box 2910, Austin, Texas 78768-2910, concerning creation of alcohol-free school
 zones (ID# 38781).


SUMMARY. A "public school" for purposes of
 subsection (a)(1) of section 109.33 of the Alcoholic Beverage Code is any
 institution supported, in whole or in part, by public funds. With respect
 to any such institution, a commissioners court or the governing body of a
 municipality may, on its own initiative, designate a 300-foot "alcohol-free
 zone." However, for purposes of subsection (a)(2) of section 109.33 of the
 Alcoholic Beverage Code, and section 38.007 of the Education Code, only a
 school operated by a "school district" located in a municipality of 900,000
 or more is eligible to be included within a 1,000-foot "alcohol-free zone."

LO #96-137. Request from the Honorable David
 Sibley, Chair, Economic Development Committee, Texas State Senate, P.O. Box
 12068, Austin, Texas 78711, concerning whether the Texas Racing Commission
 may approve an application for wagering on simulcast races by a facility
 that is as yet incapable of hosting live racing events and related question
 (ID# 36913).


SUMMARY. Section 11.011(f) of the Texas Racing
 Act, V.T.C.S. article 179e, authorizes the Texas Racing Commission to approve
 the application of a licensed racetrack for wagering on simulcast races so
 long as the commission has granted the racetrack live race dates. Under the
 statute, the fact that the racetrack facilities are under construction, 
incomplete,
 or otherwise incapable of accommodating a live race event at the time the
 racetrack begins accepting wagers on simulcast races is inconsequential.
 Similarly, nothing in the act requires a licensed racetrack to conduct
 a live race event at the facility before it may offer simulcast racing. To
 the contrary, the only statutory prerequisite is that the commission has
 granted live race dates to the licensed racetrack.


LO #96-139. Request from the Honorable Earl
 R. Lord, Sabine County, Attorney, Pro Tem, P.O. Box 1519, Hemphill, Texas
 75948, concerning whether a new sheriff may discharge at will employees of
 the former sheriff in a non-civil service county (ID# 38965).


SUMMARY. A Texas sheriff in a non-civil service
 county may discharge employees of his department who have no civil service
 or contract protection for any reason or for no reason at all, so long as
 he does not do so for a constitutionally impermissible reason. A sheriff
 may not, however, discharge an employee merely for holding political views
 opposed to his own, or for engaging in political activities opposed to the
 sheriff, unless the expression of such views or participation in such 
activities
 adversely affect the sheriff's ability to provide services to the public.
 Accordingly, while a Texas sheriff may discharge the employees of his 
predecessor
 upon taking office, both law and prudence would dictate that he take care
 not to discharge such employees for their personal political views or non-
disruptive
 political activities.


LO #96-140. Request from the Honorable Richard
 J. Miller, Bell County, Attorney, P.O. Box 1127, Belton, Texas 76513, 
concerning
 whether communicating a false alarm, in violation of section 42.06, Penal
 Code is a crime of "moral turpitude" (ID# 38005).


LO #96-142. Request from the Charles L. Dunlap,
 Executive Director, Teacher Retirement System of Texas, 1000 Red River Street,
 Austin, Texas 78701-2698, concerning whether a member of the board of trustees
 of the Teacher Retirement System of Texas, who was appointed in 1991 under
 Government Code section 825.002(b), becomes ineligible to serve when his
 spouse, a member of the system, retires, by virtue of Government Code section
 825.0032(a)(3), and related questions (ID# 39032).


SUMMARY. A Teacher Retirement System of Texas
 board of trustees member, appointed under Government Code section 825.002(b),
whose spouse retires from the system and receives an annuity, would become
 ineligible to serve by virtue of Government Code section 825.0032(a)(3).
 Violation of the prohibition in section 825.0032(a)(3) constitutes a ground
 for removal from the board under Government Code section 825.010. This section
 requires the presiding officer of the board to notify the appropriate 
appointing
 officer and the attorney general that a potential ground for removal exists;
 it does not automatically disqualify or remove a board member from office.
 The attorney general or the appointing officer must take action in order
 to remove the board member from office, see generally Gov't Code ch. 665
 (procedures for removal from office), and no vacancy would occur until the
 board member was actually removed.


LO #96-144. Request from the Honorable James
 W. Carr, Lavaca County, Attorney, P.O. Box 576, Courthouse, 2nd Floor, 
Hallettsville,
 Texas 77964 and the Honorable David M. Motley, Kerr County Attorney, County
 Courthouse, Suite B20, 700 East Main Street, Kerrville, Texas 78028-5324,
 concerning whether the proper jurisdiction in Kerr County and Lavaca County
 of prosecutions under Alcoholic Beverage Code sections 106.02, 106.04, and
 106.05, which prohibit the possession, consumption, and purchase of alcoholic
 beverages by persons under the age of twenty-one years (ID# 39308, RQ-810).

SUMMARY. First-time violations of Alcoholic
 Beverage Code sections 106.02, 106.04, and 106.05 do not fall within the
 jurisdiction of the constitutional or statutory county courts of Kerr and
 Lavaca Counties, but subsequent violations do fall within the exclusive 
jurisdiction
 of these courts. The justice courts and the municipal courts of Kerr and
 Lavaca counties to which the Seventy-fourth Legislature's House Bill No.
 1648 applies do have jurisdiction of prosecutions for violations of Alcoholic
 Beverage Code sections 106.02, 106.04, and 106.05.

 The district courts of Kerr and Lavaca counties do have jurisdiction of
 first-time offenses of sections 106.02, 106.04, and 106.05, but do not have
 jurisdiction of prosecutions for subsequent violations of sections 106.02,
 106.04, and 106.05.


LO #96-145. 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 former district
 judge who accepts judicial assignments pursuant to chapter 74 of the Government
 Code may simultaneously serve as a part-time municipal judge (ID# 33874).

LO #96-147. Request from Sherry Lee, Executive
 Director, Texas State Board of Examiners of Psychologists, 333 Guadalupe,
 Suite 2-450, Austin, Texas 78701, concerning whether the Board of Examiners
 of Psychologists may authorize the use of "psychological extenders" acting
 under the supervision of a licensed psychologists (ID# 38948).


SUMMARY. Licensed psychologists may not use
 non-licensed, non-certified, and non-exempt individuals to provide 
psychological
 services. Such a practice would violate the Psychologists' Certification
 and Licensing Act. Consequently, the State Board of Examiners of Psychologists
 may not enact a rule authorizing such a practice.


LO #96-148. Request from the Honorable George
 P. Morrill, II, District Attorney, 156th Judicial District of Texas, Bee
 County Courthouse, Room 205, Beeville, Texas 78102, concerning whether an
 elected county attorney may simultaneously serve as an assistant district
 attorney in the same county, and related questions (ID# 38953).


SUMMARY. The district attorney of the 156th
 Judicial District may appoint the county attorney of Live Oak County to serve
 as an assistant district attorney for all counties in the district, and he
 may compensate the county attorney of Live Oak County for his service as
 assistant district attorney.


LO #96-149. Request from the Honorable Don
 Henderson, Chair, Senate Jurisprudence Committee, Texas State Senate, P.O.
Box 12068, Austin, Texas 78711-2068, concerning whether Texas usury laws,
 V.T.C.S. Article 5096, apply to a particular transaction (ID# 39000).


SUMMARY. The determination whether a transaction
 has a significant relationship to Texas justifying the application of Texas
 usury laws requires the examination of all the circumstances of the 
transaction,
 including the terms of the note and any other contractual documents, which
 may contain a choice of law provision.


TRD-9702546



LO 96-141. Request from the Honorable Carlos
 Lara, Dimmit County Auditor, 103 North Fifth Street, Carrizo Springs, Texas
 78834, concerning whether a commissioners court is authorized to move the
 county attorney's official office from the county courthouse to a private
 office and to provide the county attorney with a county-paid employee and
 county-owned computer to use in the county attorney's private practice (ID#
38838).


SUMMARY. A commissioners court is authorized
 to designate a private office as the county attorney's official office if
 the commissioners court determines that the additional office space is 
necessary.
 See Local Gov't Code, 291.001(a). A commissioners court may provide the county
 attorney with a county-paid employee and county-owned computer to use in
 the county attorney's private practice pursuant to Government Code, section
 41.011. Provided that this arrangement constitutes part of the county 
attorney's
 compensation for official services rendered to the county and that the county
 receives a reasonable return for the total compensation it provides the county
 attorney, the arrangement does not run afoul of article III, section 52 of
 the Texas Constitution.


LO 96-150. Request from the Honorable George
 W. Bush, Governor, State of Texas, Office of the Governor, P.O. Box 12428,
 Austin Texas 78711, concerning whether acts of private citizens demonstrating
 against drug dealers implicate certain sections of the Penal Code (ID# 39178).

SUMMARY. Whether a particular demonstration
 by a group of private citizens would violate section 42.01, Penal Code, which
 prohibits disorderly conduct, is a question of fact which cannot be determined
 in the opinion process. However, the fact that demonstrators are engaged
 in expressive conduct is not by itself a defense against prosecution for
 such a violation. The disorderly conduct statute's restrictions on protected
 speech are facially constitutional. A group of private citizens who receive
 information from law enforcement about the location of known "crack houses"
 or the residence of known drug dealers, and who thereupon organize 
demonstrations
 at such locations in an attempt to discourage traffic in illegal narcotics
 cannot, as a matter of law, violate Penal Code section 39.03, which prohibits
 official oppression. Nor do the provision or receipt of such information
 violate section 39.06 of the Penal Code, which prohibits misuse of official
 information.


LO 96-151. Request from Jack E. Crump, Executive
 Director, Texas Commission on Jail Standards, P.O. Box 12985, Austin, Texas
 78711, concerning whether the Authority of the Texas Commission on Jail 
Standards
 to regulate private facility for incarceration of persons convicted by federal
 courts or courts of other states (ID# 39010).


SUMMARY. The authority to incarcerate prisoners
 in Texas is derived from legislation of the State of Texas or of the United
 States. Prisoners may be housed in a privately owned and operated facility
 located in Texas only pursuant to a contract with a governmental entity that
 has statutory authority to incarcerate prisoners within the boundaries of
 this state. Persons convicted of crimes by the courts of another state may
 be incarcerated in a privately owned and operated facility in Texas only
 pursuant to contract between the private facility and a governmental entity
 that has authority to incarcerate such persons in Texas. The Commission on
 Jail Standards has regulatory authority over a jail, detention center, work
 camp, or related facility operated by a private vendor on behalf of a county
 or municipality. If the Taylor Detention Center is not operated on behalf
 of a county or municipality, the commission does not have authority to regulate
 it. The appropriate regulatory authority will ultimately have to be established
 from the statutes authorizing the Taylor Detention Center to incarcerate
 prisoners on behalf of a particular governmental entity and the contract
or contracts entered into pursuant to those statutes.


TRD-9702547


LO #97-001. Request from William P. Hobby,
 Chancellor, University of Houston System, 1600 Smith, Suite 3400, Houston,
Texas 77002-7347, concerning whether the effect of Hopwood v. State of Texas
 on various scholarship programs of the University of Houston (ID# 39347).

SUMMARY. Hopwood proscribes the use of race
 or ethnicity, in the absence of a factual showing by an institution or the
 legislature which establishes: (1) either that the institution has 
discriminated
 in the not too distant past against the racial group benefited by the 
preference
 or that the institution has been a passive participant in acts of private
 discrimination by specific private actors against the benefited racial group;
 (2) that there exist present effects of the past discrimination that are
 not due to general societal discrimination; and, (3) that the scholarship
 is narrowly tailored to remedy those present effects. Unless or until these
 facts can be established, the consideration of race or ethnicity is expressly
 prohibited. Although, as always, individual conclusions regarding specific
 programs are dependent upon their particular facts, Hopwood's restrictions
 would generally apply to all internal institutional policies, including 
admissions,
 financial aid, scholarships, fellowships, recruitment and retention, among
 others.


TRD-9702545



Opinion

DM-431. Request from the Honorable James
 Warren Smith, Jr., Frio County Attorney, 500 East San Antonio, Box 1, Pearsall,
 Texas 78061-3100, concerning whether a county is authorized to reimburse
 attorney's fees incurred in defending an election contest suit to a candidate
 for a political party's nomination for sheriff (RQ-914).


SUMMARY. A county is prohibited from reimbursing
 a candidate for a political party's nomination for sheriff for attorney's
 fees incurred in defending an election contest suit. See Texas Const. art.
III, 50, 51, 52.


TRD-9702548