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-#97-059. Request from The Honorable Mark
 W. Stiles, Chair, Calendars Committee, Texas House of Representatives, P.O.
 Box 2910, Austin, Texas, 78768-2910, regarding clarification of Letter Opinion
 No. 97-31 (ID# 39633).


SUMMARY. While a contract solely for the
 loading and unloading of cargo is not exempt from competitive bidding under
 chapter 60 of the Water Code, whether the contract between the Ports of Port
 Arthur and Beaumont ("the Ports") and the companies involved fairly may be
 so characterized requires factual determinations and contractual interpretation
 beyond the purview of the opinion process. Such questions should be determined
 by the Ports.


LO-#97-060. Request from the Honorable David
 A. Sheffield, Hardin County Attorney, P.O. Box 516, Courthouse, Second Floor,
 Kountze, Texas, 77625, regarding whether an individual may be compensated
 for serving both as a constable and as a courtroom bailiff (ID# 39429).


SUMMARY. An individual may be compensated
 for simultaneous service both as a courtroom bailiff and as a constable.

LO-#97-061. Request from the Honorable Warren
 Chisum Chair, Committee on Environmental Regulation, Texas House of 
Representative,
 P.O. Box 2910, Austin, Texas, 78768-2910, regarding whether the Pampa Economic
 Development Corporation may contribute to a Clarendon College center in
 Pampa, Texas (ID# 39511).


SUMMARY. Given the information provided,
 it appears that the board of directors of the Pampa Economic Development
 Corporation would have no basis on which to conclude that an expenditure
 of section 4A tax proceeds to support a Clarendon College center in Pampa,
 Texas would be consistent with the purposes of the Development Corporation
 Act of 1979. Furthermore, the act does not permit a section 4A development
 corporation to make gifts of public funds.


LO-#97-062. Request from the Honorable Chris
 Harris, Chair, Senate Administration Committee, Texas State Senate, P.O.
 Box 12068, Austin, Texas, 78711, regarding whether a city council may require
 that certain or all requests for zoning variances be directed to the city
 council rather than the zoning board of adjustment (ID # 39261).


SUMMARY. A city may not, consistent with
 the general municipal zoning enabling statutes, require that any requests
 for a variance be directed to the city council rather than the board of 
adjustment.

LO-#97-063. Request from the Honorable Carl
 E. Lewis, Nueces County Attorney, 901 Leopard, Room 206, Corpus Christi,
 Texas, 78401-3680, regarding whether the commissioners court in a county
 with a public defender's office must provide funding to pay court-appointed
 attorneys who are not members of the public defender's office (RQ- 913).

SUMMARY. After the commissioners court has
 established a public defender's office pursuant to article 26.044 of the
 Code of Criminal Procedure it remains obligated to pay attorneys appointed
 by the trial courts to represent indigent defendants and must direct payment
 of the full amount of attorney fees ordered by a court under article 26.05,
 unless it can show that the trial court's award is so unreasonable as to
 amount to an abuse of discretion.


LO-#97-065. Request from Mr. Don H. Hazelip,
 C.P.A., Eastland County Auditor, 100 West Main, Room 205, Eastland, Texas,
 76448, regarding whether county may pay legal expenses incurred by sheriff
 in defending himself in a prosecution on criminal charges (ID# 39367).


SUMMARY. The commissioners court may employ
 an attorney to defend the sheriff in a criminal prosecution pursuant to common
 law or section 157.901 of the Local Government Code, if the legitimate interest
 of the county, not just the personal interest of the sheriff, is at stake.
 The commissioners court may not reimburse the sheriff for his legal fees
 in the prosecution after he has incurred them.


LO-#97-067. Request from the Honorable Mark
 W. Stiles, Chair, Committee on Calendars, Texas House of Representatives,
 P.O. Box 2910, Austin, Texas, 78768-2910, regarding whether a retired judge
 is precluded by section 74.055 of the Government Code from accepting 
appointment
 as a guardian ad litem (ID# 39617).


SUMMARY. A former judge sitting by assignment
 is not precluded by section 74.055, Government Code, from accepting appointment
 as a guardian ad litem in any suit in which the guardian would not be required
 to plead and appear in court as an attorney.


TRD-9710673



General Opinions

DM-#443. Request from Bruce A. Levy, M.D.,
 J.D., Executive Director, Texas State Board of Medical Examiners, P.O. Box
 2018, Austin, Texas, 78768-2018, regarding authority of a physical therapist
 to perform needle electromyography testing (RQ-928).


SUMMARY. The decision by the Board of Medical
 Examiners that needle electromyography constitutes the practice of medicine
 and is within the scope of practice of a licensed physician is a reasonable
 one. The decision by the Board of Physical Therapy Examiners that 
electromyography
 is within the scope of practice of a licensed physical therapist is a 
reasonable
 one. Insofar as electromyography constitutes the practice of medicine, the
 Board of Medical Examiners has the authority to regulate the activity. Insofar
 as electromyography is within the scope of practice of a licensed physical
 therapist, the Board of Physical Therapy Examiners has that authority. 
Accordingly,
 the development of any general rules regulating this activity would require
 the cooperation of both boards, and is not within the province of either
 board exclusively. Physical therapists would, in their practice, be governed
 by the rules of the Board of Physical Therapy Examiners, doctors by those
 of the Board of Medical Examiners.


DM-#444. Request from the Honorable Edmund
 Kuempel Chair, Committee on State Recreational Resources, Texas House of
 Representatives, P.O. Box 2910, Austin, Texas, 78768-2910, regarding whether
 New Braunfels Utilities is an agent of the City of New Braunfels and related
 questions (RQ-931).


SUMMARY. The governing board of a municipal
 utility system acts as an agent of the municipality that created it. Under
 V.T.C.S. article 1115, the municipality may delegate to the board "management
 and control" of the utility system, but the municipality may not delegate
 any authority inconsistent with article 1115. Employees of a municipal utility
 system are in fact employees of the municipality. Article 1115 permits a
 municipality to delegate to the board of its utility system management and
 control of municipal employees working for the system. Where a municipality
 has granted to that board the authority to manage and control the system
" with the same freedom" as and "in the same manner as" the board of a private
 corporation operating a similar system and to employ and pay all necessary
 personnel, a court probably would find that the municipality has in fact
 delegated the authority to manage and control employees working for the system.
 A municipal utility system may acquire or hold real property only as an agent
 of the municipality. Thus, the municipality may use the property or dispose
 of the property as it wishes. A municipality may not delegate to the governing
 board of its utility system ultimate control of municipal real property.

DM-#445. Request from The Honorable Antonio
 O. Garza, Jr., Secretary of State, Office of the Secretary of State of Texas,
 P.O. Box 12697, Austin, Texas, 78711-2697, and Commissioner Elton Bomer,
 Texas Department of Insurance, P.O. Box 149104, Austin, Texas, 78714-9104,
 regarding whether the Automobile Club Services Act, Transportation Code chapter
 722, authorizes automobile clubs to contract to reimburse members for expenses
 incurred in obtaining services (RQ-917).


SUMMARY. Chapter 722 of the Transportation
 Code authorizes an automobile club to contract to reimburse members for legal
 fees incurred in the defense of traffic offenses. An agreement to reimburse
 a member for expenses incurred obtaining any other service exceeds the 
statutory
 authority of an automobile club under chapter 722 and constitutes the business
 of insurance.


DM-446. Request from The Honorable Paul L.
 Sadler Chair, House Committee on Public Education, Texas House of 
Representatives,
 P.O. Box 2910, Austin, Texas, 78768-2910, regarding whether University 
Interscholastic
 League rules concerning part-time athletic coaches exceed the League's 
authority
 (RQ-930).


SUMMARY. The University Interscholastic League
 ("UIL") is a voluntary nonprofit association of Texas public schools, which
 serves as the statewide organization for interschool competition in academics,
 music, and athletics. A school board has discretionary authority to join
 the UIL and to agree to comply with its rules, unless constitutional or 
statutory
 provisions bar the school district from agreeing to a particular rule. A
 school board may agree to comply with a UIL rule that makes a school district
 ineligible for competition in an athletic activity if its coach is not a
 full-time employee of the school district. A public school student's interest
 in participating in extracurricular activities is not a property right for
 purposes of due process, nor is it a fundamental right under the equal 
protection
 clause. Classifications created by rules of the UIL must be rationally related
 to a legitimate state purpose. Whether a particular rule is rationally related
 to a legitimate state purpose cannot be resolved in the opinion process.

DM-447. Request from the Honorable Frank
 Madla Chair, Nominations Committee, Texas State Senate P.O. Box 12068, Austin,
 Texas, 78711-2068, regarding authority of municipality to approve, reject,
 or review rules adopted by fire and police civil service commission (RQ-910).

SUMMARY. A home-rule city that has established
 a fire fighters' and police officers' civil service commission pursuant to
 Local Government Code chapter 143 has no authority to review, adopt, or reject
 rules promulgated by the commission. A chapter 143 civil service commission
 may not adopt a rule providing for city review, adoption, or rejection of
 commission rules.


TRD-9710674