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-97-072(ID# 39692) Request from Mr. Allan
 B. Polunsky, Chair, Texas Board of Criminal Justice, P.O. Box 13084, Austin,
 Texas 78711, concerning Conflict of interest issue arising when client of
 member of the Texas Board of Criminal Justice bids on work for the Department
 of Criminal Justice.


SUMMARY Common-law conflict of interest rules
 prevent the Texas Board of Criminal Justice from entering into a contract
 in which a board member has a financial interest.


LO 97-073(ID# 39134) Request from The Honorable
 Sherry L. Lee, Executive Director, Texas State Board of Examiners of 
Psychologists,
 333 Guadalupe, Suite 2-450, Austin, Texas 78701, concerning whether board
 rule that excludes testing materials and data from patient's psychological
 record is consistent with requirements of chapter 611, Health and Safety
 Code, granting patients access to their mental health records.


SUMMARY Pursuant to Chapter 611 of the Health
 and Safety Code, which gives patients access to their patient records created
 or maintained by mental health professionals, the Texas State Board of 
Examiners
 of Psychologists has promulgated a rule that defines test results as patient
 records and excludes testing materials, test booklets, and protocols used
 in generating test results from the definition of patient records. We will
 accord the rule the presumption of validity that attaches to administrative
 rules.

 Where records of a psychologist are subject to the Open Records Act, the
 confidentiality provisions of Chapter 611 will exempt "patient records" from
 disclosure to the public, but will not exempt the testing materials excluded
 from the definition of patient records. However, other provisions of law
 may be relevant.


LO 97-074(ID# 39338) Request from The Honorable
 James Warren Smith, Jr., Frio County Attorney, 500 East San Antonio Street,
 Box 1, Pearsall, Texas 78061-3100, concerning whether a juvenile court may
 assess a fee for court costs pursuant to Family Code, sec.54.0411 in a
 modification of prior disposition order when a modification hearing has been
 waived.


SUMMARY A court may not assess a fee for court costs pursuant to Family
 Code sec.54.0411(a) in an order modifying disposition when a modification
 hearing has been waived pursuant to Family Code section 54.05(h).


LO 97-075(ID# 39469) Request from The Honorable
 Jose R. Rodriguez, El Paso County Attorney, 500 East San Antonio, Room 203,
 El Paso, Texas 79901, concerning compensation to be paid to El Paso County
 Judge pursuant to Local Government Code sec.152.904(b).


SUMMARY Local Government Code, sec.152.904(b)
 which provides that the "county judge of El Paso County is entitled to receive
 an annual salary in an amount not to exceed 90% of the total annual salary,
 including supplements, paid to any district judge in the county," establishes
 a maximum for the county judge's annual salary. The commissioners court may
 set the county judge's salary at less than the maximum stated in this 
provision.

LO 97-076(ID# 39585) Request from Mr. Kenneth
 H. Ashworth, Commissioner, Texas Higher Education Coordinating Board, P.O.
 Box 12788, Austin, Texas 78711, concerning whether a community college may
 sell or lease land to a private foundation for the construction of a community
 or civic center.


SUMMARY Land acquired by a community college
 by purchase is not school land for the purposes of the Texas Constitution,
 Article VII, sec.6 of the Texas Constitution. Such land may be sold or
 leased to a private foundation pursuant to Local Government Code 
sec.272.001(b)(4)
 only if the use determined by the political subdivision is a condition of
 the lease or contract of sale.


LO 97-077(ID# 39550) Request from the Honorable
 Ben W. "Bud" Childers, Fort Bend County Attorney, 301 Jackson, Suite 621,
 Richmond, Texas 77469-3506, concerning whether a county clerk is authorized
 to mail materials relating to the clerk's campaign for office in a private
 professional association at county expense.


SUMMARY A county clerk is not authorized
 to mail materials relating to the clerk's campaign for office in a private
 professional association at county expense unless the commissioners court
 has budgeted for and authorized the expenditure. In addition, any such 
expenditure
 must comport with article III, the Texas Constitution, sec.52.


TRD-9711469


Letter Opinions

LO 97-078(ID# 39284) Request from the Honorable
 Bill Clayton, Chair, State of Texas Aircraft Pooling Board, 4900 Old Manor
 Road, Austin, Texas 78723-4522, concerning whether the state may build airport
 facilities for operations of Texas Aircraft Pooling Board on real property
 not owned by the state.


SUMMARY State agencies such as the State
 Aircraft Pooling Board are not prohibited by the Texas Constitution from
 expending public funds to construct improvements on leased property, but
 the proposed expenditure must serve a public purpose, adequate consideration
 for its expenditure must flow to the public, and adequate controls, contractual
 or otherwise, must be in place to ensure that the public purpose will be
 carried out. These determinations involve fact questions and are for the
 discretion of the board and the legislature in the first instance, subject
 to judicial review.


LO 97-079(RQ-916) Request from Mr. Andrew
 Sansom, Executive Director, Texas Parks and Wildlife Department, 4200 Smith
 School Road, Austin, Texas 78744, concerning applicability of criminal trespass
 statute, sec.30.05 of the Penal Code, to actions of persons in boat in
 public water over submerged private property.

SUMMARY A person boating in public waters
 over submerged private property who beaches the boat, anchors it, or ties
 it to a private duck blind without leaving the boat has not thereby intruded
 his entire body onto private property, and therefore has not committed the
 offense of criminal trespass as defined by sec.30.05 of the Penal Code.

LO 97-080(ID# 39747) Request from the Honorable
 Jack Skeen, Smith County Criminal District Attorney, Smith County Courthouse,
 Tyler, Texas 75702, clarification of Letter Opinion Number 97-77.


SUMMARY In budgeting for and authorizing
 an expenditure relating to a county official's participation in a statewide
 professional association of the sort at issue in Letter Opinion 97-77, a
 line item in the county budget is not required as a matter of law. The degree
 of specificity required in any particular instance for this purpose will
 depend upon the regular custom and practice of the particular county involved.

TRD-9711668


Opinions

DM-449(RQ-934) Request from the Honorable
 John Vance, Dallas County District Attorney, Administration Building, 411
 Elm Street, Dallas, Texas 75202, concerning whether filing of appeal bond,
 or affidavit of inability in lieu thereof, excuses justice court appellant
 from requirements of rule 143a.


SUMMARY An appellant from a justice court
 who files an appeal bond in compliance with rule 571 of the Texas Rules of
 Civil Procedure also complies with rule 143a of the rules if the bond is
 in an amount sufficient to cover the costs of appeal. An appellant from a
 justice court who files an affidavit of inability pursuant to rule 572 is
 not required to comply with a request for payment of costs made pursuant
 to rule 143a in order to perfect an appeal.


DM-450(RQ-929) Request from Mr. Kenneth H.
 Ashworth, Commissioner, Texas Higher Education Coordinating Board, P.O. Box
 12788, Austin, Texas 78711, concerning whether a community college district
 may charge and collect from its students a mandatory technology fee, and
 related questions.


SUMMARY The Education Code, sec.54.503
 permits an institution of higher education to charge a "student services
 fee" approved by the institution's governing board if the services funded
 by the fee "are separate and apart from the regularly scheduled academic
 functions of the institution" and "directly involve or benefit students. "
Whether a particular service falls within sec.54.503's definition of a
 student services fee is normally a determination to be made in the first
 instance by the institution's governing board, subject ultimately to judicial
 review. A student services fee imposed under sec.54.503 is subject to all
 the applicable requirements of that section. The Education Code, sec.54.504
 allows the governing board of an institution of higher education to fix 
"incidental
 fees" which may be collected from current and prospective students. The types
 of fees contemplated by sec.54.504 are the types listed in the statute,
 all of which share the characteristic of being assessed only upon a certain
 action or inaction on the part of particular students or prospective students,
 rather than the characteristic of being collected from all students merely
 as incident to their enrollment. Whether a particular fee falls within the
 scope of the incidental fees statute is a determination to be made by the
 institution's governing board in the first instance, subject to review by
 a court. 

A county-wide community college district, with separately accredited colleges
 throughout the district, may transfer student services fees charged pursuant
 to sec.54.503 between the colleges regardless of which college collected
 the fee.


TRD-9711669