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 Opinions LO 97-018 (ID# 39153). Request from The Honorable Michael P. Fleming, Harris County Attorney, 1001 Preston, Suite 634, Houston, Texas 77002, concerning whether Harris County is authorized to install traffic fatality markers in the right-of-way of a county road located in a subdivision that has restrictive covenants limiting the display of signs, and related questions. Summary Whether Harris County is authorized to install traffic fatality markers in the right-of-way of a county road in a particular subdivision depends upon the terms of the dedication under which the county obtained the right-of-way. Chapter 544 of the Transportation Code does not preclude the county from installing traffic fatality markers in the right-of-way of a county road. A small Latin cross used as traffic fatality marker and installed in the county right-of-way by the county is distinguishable from the large Latin crosses located in public parks and other publicly-owned places that have been held to violate the Establishment Clause of the First Amendment to the United States Constitution. Although the use of a small Latin cross as a traffic fatality marker is less problematic, the determination whether the installation of Latin crosses or other religious symbols by a county for this purpose violates the Establishment Clause would require a factual inquiry and is therefore beyond the purview of this office. LO 97-019 (ID# 39292). Request from The Honorable Rodney Ellis, Chair, Senate Jurisprudence Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711-2068, concerning whether Property Code sec.204.010(a)(11), (12) authorizes a property owners' association to foreclose on a homestead in order to collect costs spent by the association to enforce deed restrictions. Summary To be authorized by Property Code sec.204.010(11), a cost must relate to violations of the subdivision's restrictions or the property owners' association's bylaws and rules and must be reasonable. Whether a property owners' association may foreclose on a homestead to collect the costs outlined in sec.204.010(a)(11) will depend upon whether a lien for those costs (i) attached to the property prior to the homestead right and (ii) is the result of a restriction that runs with the land. A claim for costs arising merely by virtue of an action taken by a board of a property owners' association under sec.204.010(a) does not create a lien that would precede a homestead right dating from before the board's action. LO 97-020 (ID# 39074). Request from The Honorable Carl E. Lewis, Nueces County Attorney, Nueces County Courthouse, 901 Leopard, Room 206, Corpus Christi, Texas 78401-3680, concerning whether the reappointment of a municipaljudge terminates his tenure even though no other person is appointed to the position. Summary The rejection of a re-appointment is an "action" within the meaning of sec.29.005 of the Government Code, and as such, is sufficient to terminate the tenure of a municipal court judge even though a successor is not named within the ninety-one day period. LO 97-021 (ID# 39079). Request from The Honorable Danny Buck Davidson, Panola County Criminal District Attorney, County Courthouse, 110 South Sycamore, Carthage, Texas 75633, concerning status of county road and bridge employees if a county returns to the ex officio road commissioner system pursuant to subchapter A, Chapter 252, Transportation Code. Summary Should a county with a population of less than 200,000 decide to change its road administration system from the county road department system described in subchapter D, Chapter 252, Transportation Code to the ex officio road commissioner system of subchapter A, Chapter 252, the road department employees have no legally enforceable expectation of continued employment. LO 97-023 (ID# 39463). Request from The Honorable Frank Madla, Chair, Senate Nominations Committee, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning whether a person with an ownership interest in a utilization review agent is eligible to serve on the Texas Health Care Information Council as a member under Health and Safety Code sec.108.003(c)(7). Summary A person with an ownership interest in a utilization review agent is ineligible to serve on the Texas Health Care Information Council as a member under Health and Safety Code sec.108.003(c)(7). LO 97-024 (ID# 39422). Request from The Honorable J. Michael Criswell, Swisher County Attorney, County Courthouse, Tulia, Texas 79088, concerning whether Education Code sec.45.105 authorizes an independent school district to give monetary awards to graduating seniors who have participated in a drug-testing program and who meet certain other criteria. Summary Education Code section 45.105(c) does not authorize a school district to use local school funds to give monetary awards to students who participate in a drug-testing program because participation in a drug-testing program is not specifically listed in section 45.105(c) and does not constitute a good or service. LO 97-025 (ID# 39149). Request from The Honorable Gonzalo Barrientos, Chair, Committee of the Whole on Legislative and Congressional Redistricting, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning municipal court collection of security fee from a defendant convicted in a trial of a mis-demeanor offense. Summary A security fee may be collected pursuant to Code of Criminal Procedure, Article 102.017 from a defendant who is "convicted" of an offense as the term "convicted" is defined by article 102.017, whether or not the defendant was convicted in a "trial." Entry of a judgment upon a written plea by mail triggers collection of the security fee from a defendant, but a defendant's appearance in open court at a pre-trial hearing, arraignment, or docket call, absent a conviction, does not. LO 97-026 (ID# 39163). Request from The Honorable Steven C. Hilbig, Bexar County Criminal District Attorney, Bexar County Justice Center, 300 Dolorosa, Suite 5072, San Antonio, Texas 78205-3030, concerning whether a constable may require a deputy constable, who is on duty, to serve a document entitled "notice to vacate premises" and to charge a fee for serving the notice. Summary An on-duty constable or deputy constable is without authority to serve a Property Code, section 24.005 "notice to vacate premises." A commissioners court may not authorize an on-duty constable or deputy constable to serve such a notice by purporting to establish a fee for the service under Local Government Code, sec.118.131. TRD-9703887 Letter Opinions LO 97-022 (ID# 38886). Request from The Honorable Tim Curry, Tarrant County Criminal District Attorney, 401 West Belknap, Fort Worth, Texas 76196-0201, concerning whether a member of the executive committee of the Fort Worth Transportation Authority must reside within the boundaries of a member municipality. Summary The Commissioners Court of Tarrant County is not authorized to appoint a resident of the City of Euless to the executive committee of the Fort Worth Transportation Authority. LO 97-027 (ID# 39098). Request from Mr. Charles Moser, President, Brazos River Authority, P.O. Box 7555, Waco, Texas 76714- 7555, concerning whether an individual may simultaneously occupy the positions of assistant municipal judge and director of a river authority. Summary A member of the board of directors of the Brazos River Authority may not serve as an assistant municipal judge unless a court finds that the holding of the second office is "of benefit to the State of Texas." TRD-9703886 Opinions DM-436 (RQ-927.)Request from The Honorable Gonzalo Barrientos, Chair, Committee on Legislative and Congressional Redistricting, Texas State Senate, P.O. Box 12068, Austin, Texas 78711, concerning whether state may operate an airport for the use of state aircraft and condemn land for that purpose. Summary The Aircraft Pooling Board is authorized to own and operate an airport for the use of state aircraft. Neither the Aircraft Pooling Board nor the General Services Commission may initiate condemnation proceedings on its own authority. An appropriation for the purpose of acquiring and/or operating an airport may be made only to an agency with express or implied statutory authority to own and/or operate an airport. If the legislature appropriates funds to the Aircraft Pooling Board to acquire an airport for the use of state aircraft, the board could purchase or lease the airport itself or request the governor to purchase the land or initiate condemnation proceedings under section 2204.001 of the Government Code. The decision as to the particular land to be condemned is within the condemnor's absolute discretion, reviewable by the courts only when the condemnor has acted in bad faith or arbitrarily, capriciously, or fraudulently. The legislature probably could not authorize the owner of land proposed for state acquisition to impose a restrictive covenant on the use of the property with a reversionary clause to the owner. Whether the state may be held liable under Article I, sec.17 of the Texas Constitution or under the Tort Claims Act for damages that result to private property owners as a result of operations at a state-owned facility must be determined on a case-by-case basis. Airport property leased by the state to a private entity may be exempt from ad valorem tax if its use is in direct support of the state's operation of the airport. Whether a particular leased facility is exempt from tax depends upon the resolution of fact questions. TRD-9703888 Request for Opinion (ID# 39450.) Request from The Honorable Paul Sadler, Texas House of Representatives, P.O. Box 2910, Austin, Texas 78768, concerning Authority of the University Interscholastic League to regulate activities of an independent school district, and related questions. TRD-9703889